SZQRC v Minister for Immigration and Citizenship

The appeal 26 The appellant's notice of appeal contains the following three grounds of appeal: 1. The Second Respondent had bias against me and failed to consider my claims. 2. The Second Respondent has ignored relevant considerations in making the decision. 3. The Second Respondent failed to give the Applicant a meaningful opportunity to present arguments in support of her claims. Particulars I claimed to have been a traditional medicine practitioner in China, which the Tribunal did not believe. In testing my knowledge of the subject at the hearing the Tribunal used an interpreter who was not competent to translate the terminology involved in the particular subject matter, resulting in the Tribunal concluding that my knowledge was limited and confused. 27 The notice of appeal then contains eight further paragraphs which set out material in the nature of submissions in support of the appellant's appeal. It is evident that this material has been copied from a document entitled "Claim Statement" which was an annexure to an affidavit filed by the appellant in the Federal Magistrates Court proceedings. The Claim Statement set out various complaints by the appellant concerning the Tribunal's decision. The material is in the nature of written submissions in support of the appellant's case and I have treated it accordingly. The appellant confirmed at the hearing before me that the submissions in her notice of appeal were all directed to the three grounds of appeal in her notice of appeal. The appellant did not file any other written submissions in support of her appeal, but she made some brief oral submissions. 28 The Minister filed and served written submissions and was represented at the hearing by Ms Stone, a solicitor.

Consideration 29 I shall now deal in turn with each of the appellant's three grounds of appeal, having regard to the matters set out in paragraph 27 above as to the relationship between those grounds of appeal and the appellant's written and oral submissions. I should also state at the outset that, perhaps not surprisingly as the appellant was unrepresented, she gave the impression of not understanding the difference between the Tribunal's review jurisdiction and the more limited scope of judicial review and subsequent appeal proceedings to this Court.

Bias and failure to consider appellant's claims 30 Reference was made in paragraph 15 above to how Nicholls FM dealt with the appellant's claims of bias or apprehended bias. Attention was drawn to the terms in which his Honour expressed his conclusion as to why the appellant's arguments should be rejected. In my view, no appellable error has been established in respect of his Honour's finding of fact that the appellant failed to establish actual bias. I respectfully agree with that finding. 31 Additional issues arise in respect of his Honour's rejection of the appellant's claim of apprehended bias. The language used by his Honour suggests that he may have proceeded on the basis that the relevant test of apprehended bias is appropriately expressed in the language of "would", rather then "might". But for reasons which I now provide, I do not consider that his Honour has committed an appellable error in respect of this matter. 32 It is now well established in Australian law that the test for apprehended bias (in respect of both judicial and non-judicial decision-makers) is to be expressed in terms of "might". That is reflected, for example, in the following passage from the leading High Court decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge… the governing principle is that, subject to qualifications relating to waiver... or necessity…, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (emphasis added). 33 The same test applies to non-judicial decision-makers. As Kirby J observed in Jia Legeng at [111]: It is enough to show that, "in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it" (original emphasis). 34 Although the test is more accurately expressed in terms of "might" and not "would", the question whether or not an appellable error has occurred requires the matter to be approached as one of substance and not merely form. As the Full Court said in John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221 at [34], reasons for judgment need to be read as a whole with a view to determining whether or not the correct test was fully understood and properly applied. Such an approach is also consistent with the following observations of the Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [27]-[28]: The applicant challenged his Honour's formulation of the test for apprehended bias. In this context we note that, although the test for apprehended bias is ordinarily the same wherever it arises, the precise language used in applying the test has frequently varied depending on the context in which it falls to be applied: compare Laws v ABT at 99-100; Re JRL at 352; Ebner at 344 [6]; and Re Polites; Ex parte the Hoyts Corporation Pty Ltd (1991) 173 CLR 78 ('Re Polites') at 85-7 and 90. It is true that the use of the word "must" in the statement of the test in his Honour's reasons for judgment indicates a degree of certainty that is higher than the threshold identified in Ebner. In Ebner at 344 [6], the use of the word "might" in the first limb of the test (as well as the second) connotes the lesser possibility than the word "must". It is, however, important to focus on his Honour's application of the test, rather than overemphasize possible semantic deficiencies: compare McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 526 [111]-[114] per Basten JA. Further, as counsel for ACCC noted, the "double might" test in Ebner is not inconsistent with the prejudgment "incapable of alteration test" in Jia Legeng. That is, the reasonable apprehension that "a fair-minded lay observer might" have is that the mind of the judge might be "incapable of alteration": see [25] above. 35 In my opinion, despite what appears to be some looseness in the language used by the Nicholls FM in [69] of his reasons for judgment, his Honour correctly understood and applied the test for apprehended bias. That is reflected in his findings set out in [104] and [105] of his reasons for judgment. In my view, his Honour was correct to conclude that bias or apprehended bias was not established simply because the Tribunal put various questions to the appellant and invited her response on issues which were adverse to her and upon which the case would ultimately be decided. Furthermore, Nicholls FM made a specific finding in [105] in the following terms: There is nothing in the transcripts of the hearing, or elsewhere, to show, or even suggest, that the Tribunal did not bring an impartial mind to these proceedings, or it was not open to persuasion (emphasis added). 36 In my opinion, this extract from his Honour's judgment indicates that his Honour appreciated that the relevant test of apprehended bias was one which had to be addressed in terms of possibility, not probability, consistently with the High Court's decision in Ebner at [7]. Furthermore, his Honour's reference to the concept of the Tribunal being "open to persuasion" is consistent with the terminology used in Jia Legeng at [71]-[72] per Gleeson CJ and Gummow J. Their Honours described the species of apprehended bias involving prejudgment as "[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented" (to similar effect, see Cabcharge Australia Ltd at [25]). 37 Accordingly, for all these reasons, I find that no appellable error has been demonstrated in respect of this aspect of Nicholls FM's reasons for judgment. 38 The appellant was unable to point to any other aspect of her case or claims which was not addressed by Nicholls FM. 39 My findings above are probably sufficient to dispose of the appellant's first ground of appeal as set out in her notice of appeal. For completeness, however, I shall proceed to deal with the 8 paragraphs of the written submissions included in the appellant's notice of appeal. I note that the written submissions filed on behalf of the first respondent did not raise any objection to this aspect of the form of the notice of appeal and the Minister relied on written submissions filed in response to the appellant's written submissions. 40 First, the appellant complains that there were deficiencies in the interpreting at the Tribunal hearing. The appellant gave an example of the interpreter being unable to interpret the appellant's response to a question about the classifications of Chinese medicines. 41 This matter was argued before Nicholls FM, who rejected it for reasons which I have summarised in paragraph 22 above. In my view, the appellant has failed to establish any error in his Honour's reasoning in rejecting her argument. I respectfully agree with his Honour's reasons. The Tribunal's reasons for decision disclose many other matters relied on by the Tribunal (and which were not challenged by the appellant in her judicial review proceedings) in support of its conclusion that the appellant had only a limited knowledge of traditional Chinese medicine. 42 The appellant's next complaint, which was also argued below, relates to the exchange which occurred at the hearing in respect of the Tribunal member's question whether the appellant knew the word "moxibustion". Nicholls FM rejected this complaint for reasons which I have summarised in paragraph 14 above. In my view, the appellant has failed to establish any error in that reasoning and I respectfully agree with his Honour's reasons for rejecting the argument. 43 The appellant's next complaint relates to the Tribunal's questioning concerning the "five elements" in traditional Chinese medicine. As Nicholls FM explained in rejecting this argument, the essence of the complaint is that the Tribunal allegedly made an incorrect finding of fact. As Nicholls FM reasoned, a factual error on the Tribunal's part would not constitute a jurisdictional error and, in any event, his Honour found that no factual error had been established. I agree with that conclusion and also with his Honour's reasons for reaching it. The appellant failed to establish any error in his Honour's reasoning and I reject her complaint. 44 The appellant's next complaint relates to the documents which she said she brought with her to the Tribunal hearing and which were not inspected by the Tribunal. This argument was considered and also rejected by Nicholls FM for reasons which I have summarised in paragraph 20 above. In my view, the appellant has failed to establish any appellable error in respect of this aspect of his Honour's reasoning. In particular, I agree with his Honour's rejection of the appellant's argument for the following reasons. 45 First, the transcript of the Tribunal hearing records the appellant's following response to the Tribunal member's question asking where she had studied: "Guangming Traditional Chinese Medicine Correspondence University. I have a graduate certificate". There is a degree of ambiguity in the second sentence of that extract. The ambiguity concerns whether the appellant was saying that she had the document with her and wished to present it or, rather, whether she was simply saying that she had received a graduate certificate from that University. Secondly, that ambiguity did not have to be resolved one way or the other because a copy of the appellant's graduate certificate from that University was included in the materials which were before the Tribunal as the appellant had provided a copy to the Department. The Tribunal considered this document at [103] of its reasons for decision and found that the document should be given little weight because of the Tribunal's adverse findings concerning the appellant's credibility. Nicholls FM found at [91] that the Tribunal had not failed to consider the graduate certificate and simply gave it little weight. I respectfully agree with Nicholls FM's reasons for rejecting this complaint by the appellant. 46 Turning now to consider the appellant's complaint that the Federal Magistrate erred in not upholding her argument that the Tribunal should have inspected her internship certificate, I respectfully agree with Nicholls FM's finding that no jurisdictional error could arise where the Tribunal failed to inspect a document the existence of which was not drawn to its attention. At the conclusion of the Tribunal's hearing the transcript records the appellant being asked twice by the Tribunal member whether she wished to add anything more for the Tribunal's consideration. The appellant could have availed herself of that opportunity but did not do so. 47 The appellant's final complaint concerns an allegation that the Tribunal member did not have a good impression of the appellant. To the extent that this complaint constitutes an allegation of actual or apprehended bias, I consider that the appellant has failed to establish any appellable error in respect of the Federal Magistrate's reasoning, which I have dealt with in paragraphs 30 to 36 above. Furthermore, to the extent that this allegation is based on the Tribunal member having put to the appellant for comment various matters which the appellant might regard as being adverse to her, I respectfully agree with the Federal Magistrate that such conduct was consistent with the Tribunal member's procedural fairness obligations and does not of itself suggest apprehended bias. Indeed, the appellant was put on notice at the commencement of the Tribunal hearing that this might occur. She was told by the Tribunal member: In the course of the hearing today, there may be information that arises that you - adverse to your case. That is, that goes against you. If this happens, I will raise it with you, not because I've made up my mind, but to give you an opportunity to help me make up my mind.

Failure to take into account relevant considerations 48 The appellant's second ground of appeal, while asserting that the Tribunal "ignored relevant considerations", fails to specify any particular relevant considerations. Making allowance for the fact that the appellant is self represented, I have approached this matter on the basis that the relevant considerations being relied on are those which are discussed by the appellant in the general particulars provided by her in the notice of appeal (relating as they seemingly do to all three grounds of appeal), as well as to the written submissions included in the notice of appeal which constitute the appellant's complaints. I have also proceeded on the basis that, despite the wording of the appellant's three grounds of appeal which are all directed to the Tribunal and not to the Federal Magistrate's decision, they should be read as referring to alleged errors by the Federal Magistrate in not accepting the appellant's relevant arguments on those matters. 49 Against that background, the appellant's putative claim that the Federal Magistrate erred in not finding that the Tribunal had failed to take into account relevant considerations must be rejected. The appellant confirmed at the hearing before me that the relevant considerations relied upon by her were those set out in her written submissions in the notice of appeal. I have summarised above Nicholls FM's reasons for rejecting each of the complaints advanced by the appellant in those submissions. I have also set out above my reasons for finding that the appellant has failed to demonstrate any appellable error on his Honour's part on any of those matters. There is no need to repeat those reasons here. The second ground of appeal must be rejected.

Failure to give appellant a meaningful opportunity to present arguments in support of her claims 50 The appellant's third ground of appeal can be dealt with on the same basis as the second ground of appeal. The appellant's complaint that she was not given a meaningful opportunity to present arguments in support of her claims is one of the matters raised by her in her complaints. That complaint was dealt with and rejected by Nicholls FM for reasons which I have summarised above and with which I agree. Accordingly, the third ground of appeal must also be rejected. 51 For all these reasons, I order that the appeal be dismissed and the appellant pay the respondents' costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.