SZOWJ v Minister for Immigration & Citizenship

The federal magistrate's decision 6 The grounds of the application before the federal magistrate were in the following terms (without alteration): (1) RRT considered my case unfairly. They doubt my claim without substantive evidence. (2) Procedural Fairness has been denied by RRT. (3) RRT did not consider my situation in China. I will be put in jail if I go back. 7 The appellant's first complaint was that her case was not put properly "because of fault on the part of her migration agent" and furthermore that the tribunal did not have regard to any evidence. She also complained that the tribunal gave her "a hard time". 8 The federal magistrate noted from the tribunal's record that there was a considerable amount of evidence, including additional material which the tribunal sought to have the appellant comment on. He inferred from the length of the hearing that the tribunal canvassed a lot of material. He pointed out that the tribunal was not obliged to disclose its subjective thought processes to the appellant, and it was free to doubt or reject her evidence. He was satisfied that the tribunal provided an adequate explanation of the process leading to its findings on the evidence. 9 The second ground was that the appellant was denied procedural fairness because the hearing went for "five hours", and that the tribunal appeared to ask questions that were inconsistent with her statement. She also submitted that the tribunal's approach to the resolution of credit questions was arbitrary or capricious. 10 The federal magistrate accepted the Minister's submissions that five hours is not an inordinately lengthy time for a hearing, and that there was no evidence to suggest that adjournments were requested but refused. As for the tribunal's questioning of the evidence, his Honour said that this was not unusual in a proceeding which is partly inquisitorial in nature. He found that the tribunal's explanation of its findings on credit issues was neither arbitrary nor capricious but based on a careful examination of the evidence. 11 With regard to the third ground, his Honour held that the tribunal did in fact consider the situation in China and the risk of imprisonment upon the appellant's return. 12 His Honour then dismissed the application for want of jurisdictional error.

The appeal 13 The notice of appeal lists three grounds. They are (without alteration): (1) RRT has bias against me and did not make fair decision for my application (2) I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application (3) I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. 14 The appellant did not provide any particulars of these grounds, nor did she file written submissions. She did, however, make oral submissions at the hearing of the appeal. It is convenient to deal first with those submissions before considering the grounds pleaded in the notice of appeal. 15 The appellant raised two matters in oral argument. 16 The first matter concerned the conduct of the tribunal hearing. The appellant said that before the tribunal hearing started she notified the tribunal that she was sick and submitted certificates to the tribunal, but the hearing lasted five hours, which was too long given her medical condition and she was very tired. She complained that the tribunal member did not consider her medical condition. 17 There are several responses to this submission. 18 First, it is true that the appellant did inform the tribunal before the hearing started that she had a medical condition. But the information was given on 16 November 2010 when the tribunal hearing was scheduled for the next day and, at the appellant's request adjourned for that reason. 19 Secondly, the medical evidence indicated that the appellant would only be unfit up to 19 November 2010. 20 Thirdly, the hearing took place on 23 November 2010. At no time after 16 November 2010 did the appellant provide any medical evidence to the tribunal suggesting that she had a lingering medical condition or that she was disadvantaged in any way because of it. She conceded that she did not tell the tribunal that she was unwell or suffered from any disability and did not ask for an adjournment, adding that she did not know she could. Nor was there any evidence to indicate that she was not well at the time. There is, therefore, nothing to indicate that she was not in a fit state to represent herself so that she was unable to give evidence or present arguments, thereby undermining the invitation she received under s 425 of the Act (cf. Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553). She had an opportunity to present evidence of her condition when the matter came before the federal magistrate. I note that the Court file shows that, at a directions hearing on 23 February 2011, the federal magistrate issued directions involving a timetable in which the appellant was to make an application to QPILCH (the Queensland Public Interest Law Clearing House) (presumably for pro bono legal assistance) and to file any affidavit evidence. 21 Fourthly, despite the fact that the Minister's representative in the Court below and the federal magistrate apparently accepted the appellant's word for it, the tribunal's records contained in the appeal book at pp 86-87 show that the tribunal hearing did not last for five hours, but three hours and 23 minutes. 22 Finally, nothing the appellant said provides any basis for concluding that there was any procedural unfairness or other procedural defect that would cause the hearing to miscarry. 23 The second matter involved a complaint about the appellant's migration agent, who acted for her in connection with the tribunal proceeding but who did not appear for her at the hearing. 24 The appellant said there were documents relating to her sister's arrest, the summons and letters from fellow Falun Gong practitioners as well as photographs that supported her case, but that these were not provided to the tribunal because of fault on the part of her lawyer. After I queried whether she had a lawyer at the time, she corrected herself and said that she meant her migration agent. She said that she told the federal magistrate that she had the documents and expected her migration agent would submit them to the court (later she said she meant the tribunal). She then said that she thought he had submitted them after the hearing. Finally, she said she was not sure whether or not they were provided to the tribunal. 25 None of these matters appears to relate to a ground of appeal or to a ground of the application before the federal magistrate, although at [5] of his reasons the federal magistrate did refer to an oral argument put by the appellant that "in part her case was not put properly because of fault on the part of her migration agent". 26 The tribunal's decision record refers at [51] to four documents the appellant said she gave her agent: the arrest warrant, the summons, evidence from her sister's friend and evidence from her teacher, as well as two photographs taken with her teacher. The tribunal told her that none of the documents had been provided to the Department or the tribunal. 27 The tribunal plainly did not believe the appellant had ever received a summons and referred at length to her evidence about it, which it described (at [94]) as "inconsistent and unpersuasive". When the tribunal questioned her about the whereabouts of the summons, she said she gave it to her migration agent "a long time ago" to give to the tribunal. When the tribunal pressed her about when she provided the agent with the summons she said "about 2 months ago, after the Department refused the protection visa application". As the interview at the Department took place in July 2010, the tribunal asked why it took so long to give it to the agent. Her response was that it did not take long, and the agent said there was no rush to provide it. The tribunal put to the appellant that it found it surprising that she did not have the summons or a copy of it and was not interested in obtaining a copy until advised by her migration agent. Soon afterwards the tribunal noted that the appellant asked if she could have more time to provide the summons and that the tribunal told her it would not be making a decision on the application until the end of the week and would consider any material received in the meantime. The tribunal recorded (at [96]) that the appellant said she would contact her agent to obtain the "documents" and repeated that it would consider any material provided before the end of the week but observed that no further material had been provided. 28 As the Minister pointed out, the appellant had several previous opportunities to present the documents. On 30 September 2010, after she had applied to the tribunal to review the delegate's decision, the tribunal sent her a letter informing her, amongst other things, that if she wished to provide material for the tribunal to consider, she should do so as soon as possible. In the letter inviting her to appear before the tribunal, dated 19 October 2010, she was asked to attach to the response to hearing invitation form any additional information she would like the tribunal to consider, noting that any documents should be in English or translated by a qualified translator. The only documents she submitted were a medical certificate and radiology request relating to her adjournment application. When the tribunal notified her of the new hearing date by letter dated 17 November 2010 it again invited her to submit any additional information she wished the tribunal to consider. 29 The appellant filed no evidence to support her claim that she had provided the documents to her migration agent or asked him to send them to the tribunal. In these circumstances there is no reason to conclude that the agent was negligent (let alone fraudulent) and therefore no reason to consider whether the appellant lost a chance to present evidence due to the agent's omission: cf. Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 per Kenny J. In any event, however, as French J said in the Full Court in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 399 (distinguishing fraud), in a passage approved by seven justices of the High Court in the appeal (SZFDE v Minister for Immigration (2007) 232 CLR 189 at [53]): There are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. 30 In principle, there is no reason to treat a negligent failure to submit evidence any differently. 31 If the documents truly do exist, the appellant may be able to make a further application to the tribunal for a review, at which time the documents not previously presented may be considered (see s 416 of the Act). 32 None of the matters raised in oral argument point to any error on the part of the federal magistrate. 33 At the conclusion of her oral argument the appellant requested time to engage a lawyer. I asked her whether she had made any approaches for legal assistance and she said she had not. After I queried whether she had such an opportunity at the Federal Magistrates Court, she said she did get a lawyer but that the lawyer advised her case would not be successful and so would not act for her. The Minister opposed an adjournment, arguing that it was difficult to see any utility in it, noting that good reason would be required to adduce fresh evidence or rely on new grounds. In all the circumstances I did not accede to the appellant's request. 34 I now turn to consider the grounds of appeal.

The claim of bias 35 There are, of course, two aspects to the principles of procedural fairness. One is the hearing rule, that is, that a person is entitled to an opportunity to be heard before a finding adverse to his or her interests is made. The second is that the person is entitled to an impartial adjudicator. It is clear that the federal magistrate treated the claim that there was a denial of procedural fairness as an allegation that the hearing rule had been contravened. Nevertheless, it is difficult to be critical of the federal magistrate's decision. No material was put before the Court to suggest that any allegation of bias (whether actual or apprehended) was ever made in the Court below. If the claim of bias is truly a new one, then leave would be required to agitate it here. Moreover, as Branson and Katz JJ said in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [6]-[8], where evidence could have been given which might have prevented the point from succeeding, leave will not be given (Coulton v Holcombe (1986) 162 CLR 1 at 7-8). In other cases, the Court must decide whether it is expedient in the interests of justice to permit the issue to be agitated on appeal (O'Brien v Komesaroff (1982) 150 CLR 310) and the interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration. 36 Still, the Minister did not take the point and in the circumstances the claim of bias should be disposed of on the merits. 37 When I asked the appellant to explain what she meant when she alleged the tribunal was biased, she said that, before the hearing, she told the tribunal that she had evidence, but the tribunal told her that, because that evidence was not before it, it did not believe her. The statement does not find support in the decision record. It is possible, of course, that the appellant misunderstood what she was told. As I have already said, the appellant was given a further opportunity to present the evidence and its absence was only one of a number of factors that affected the tribunal's conclusions concerning her credit. 38 An allegation of actual bias is not lightly to be made and will not be upheld without distinct proof: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [69] and [127]. For the court to find actual bias it would have to be satisfied that the tribunal was so committed to a preconceived conclusion that its mind was incapable of alteration, no matter what evidence or arguments were presented to it: Jia at [72]. The appellant offered no evidence to support her contention that the tribunal was actually biased. 39 Neither is there anything on the face of the tribunal's decision to give rise to a reasonable apprehension of bias, that is to say, that a fair-minded lay observer, with knowledge of the nature of the tribunal's non-curial role and inquisitorial processes, might reasonably apprehend that the tribunal might not bring an impartial mind to the determination of the issues: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[28]. I note the complaint the appellant made to the federal magistrate that the tribunal gave her a hard time. But a vague allegation of this nature is not enough to vitiate the decision. Robust questioning is to be expected in a case like this. As Gleeson CJ, Gummow and Gaudron JJ observed in Ex parte H at [30], [w]here, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question … 40 Unlike in Ex parte H, however, there is no material in this case to suggest that the tribunal approached the hearing with a closed mind or that the appellant was overborne or intimidated. In short, there is nothing to indicate that the tribunal crossed the line.

The remaining grounds of appeal 41 As the federal magistrate observed in his reasons for judgment, the application for review could only succeed if the appellant were able to demonstrate that the tribunal fell into jurisdictional error. This is the effect of ss 474 and 476 of the Act. See also Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 42 A tribunal decision reached in denial of procedural fairness will be infected by jurisdictional error. But the second ground raises no question of this kind. 43 The proposition raised by the third ground is unsustainable. There was nothing unreasonable about the way the federal magistrate considered the application. 44 According to the decision record (which is the only material before the Court touching on the proceedings before the tribunal), there were numerous inconsistencies in the appellant's account and independent country information cast doubt on the truth of her story about her sister's arrest. The summons the appellant claimed to have received was never produced. The tribunal raised all these matters with the appellant, warning her that they could lead it to conclude that her claims were untrue. The tribunal also pointed to similarities between the appellant's claim and another application filed by the same migration agent. It found her explanations unconvincing, unsatisfactory or implausible. It also found the account of the circumstances in which she learned of her sister's arrest implausible. It concluded that she was not a credible witness and so did not accept her evidence in any material respect. As the tribunal did not accept the central claims in the application for protection, it determined that the appellant did not have a well-founded fear of persecution, and there was no real chance of persecution for any Convention reason, if she were to return to China. These findings were open on the material before it. 45 In the circumstances, the federal magistrate had no alternative but to dismiss the application.

Conclusion 46 Accordingly, the appeal must be dismissed. The appellant should pay the Minister's costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.