SZNVJ v Minister for Immigration & Anor [2010] FMCA 199 (24 March 2010)

Last Updated: 26 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNVJ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 199

MIGRATION – Review of Refugee Review Tribunal’s decision – refusal of a protection Class (XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and is given the pseudonym “SZNVJ”.

Migration Act 1958 (Cth), ss.91X, 424, 424A, 424AA

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 Refugee Review Tribunal Re: Ex Parte H [2001] HCA 28; (2001) 75 ALJR 982 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant:

SZNVJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1915 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

10 February 2010

Date of Last Submission:

18 March 2010

Delivered at:

Sydney

Delivered on:

24 March 2010

REPRESENTATION

The Applicant:

The Applicant appeared as a self represented litigant with the assistance of Mandarin interpreter.

Counsel for the Respondents:

Ms Clegg

Solicitors for the Respondents:

Sparke Helmore (F Edwards)

ORDERS

(1) The application filed on 11 August 2009 be dismissed.
(2) The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1915 of 2009

SZNVJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The Applicant is female and was born on 12 May 1977 in Fuqing, China. The Applicant was educated for seven years, speaks, reads and writes Mandarin and is the wife of a stonemason. Her husband had a contract with Lan Lin, an officer from the government in Shaowu City, Fujian Province to make 20 stone lions for use in government buildings for RMB 600,000 Yuan. However, Lan Lin did not pay her husband all of the money and therefore he experienced financial hardship.
2. The Applicant further claims that in July 2007 Lan Lin contacted her husband to work for her brother. In a landslide at the quarry on
   7 October 2007, the Applicant’s husband died. The Applicant claims that despite attempts at retrieving compensation from Lan Lin, she was unsuccessful which prompted her to lead a protest of 200 people in front of the Shaowu City government. She claims that she was subsequently beaten, mistreated and punished by the Public Service Bureau (“PSB”) and warned by a female police officer that if she was stubborn she would be persecuted to death in the detention centre.
3. The Applicant claims that her home was often raided by police after the protest and fled to Australia on a passport in another name as her name was on the PSB blacklist.
4. The Applicant arrived in Australia on 21 November 2008 on a passport issued in another person’s name. On 2 January 2009 she applied for a protection visa in a different name assisted by Harry Huang of Pricilla International Co Pty Ltd, migration agents. On 2 April 2009 a delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the Applicant was notified of this decision by way of letter on 3 April 2009. The Applicant applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on
   1 May 2009 again assisted by Pricilla International Co Pty Ltd. On 8 July 2009 the Applicant attended an oral hearing before the Tribunal. The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa on 14 July 2009. It is this decision, RRT case number 0903256, a decision of Rodney Inder that is the subject of these proceedings. On 11 August 2009 the Applicant filed an application for an order to show cause in this Court.
5. A Court Book (“CB”) was prepared and filed by the First Respondent’s solicitors and is marked Exhibit “A”. This document was read and is the only evidence before the Court.
6. At the first court date on 20 September 2009, the Applicant requested the opportunity to participate in the Court sponsored RRT Legal Advice Scheme and subsequently received advice from a panel member, including an amended application. However, this was not filed in these proceedings, although leave had been granted at the directions hearing permitting this course to occur. A further order at the first court date directions hearing required the Applicant to file and serve in the registry a short written outline of submissions and a list of authorities 14 days before the hearing. This order was not complied with, however the Applicant did bring to Court handwritten submissions in Mandarin and sought leave to read these to the Court. These submissions are referred to below. This pattern of submissions is characteristic of clients assisted by Mr Harry Huang of Pricilla International and Co Pty Ltd.

Applicant’s claims

7. The Applicant’s claims are set out in writing in ss.41 – 45 inclusive in ‘Form C’ of the Protection visa (CB 17 – 20). These claims have been effectively summarised by Ms Clegg of counsel in her written submissions as follows
   • The Applicant claimed to fear persection in China as a result of protest activities in which she had been engaged. She claimed that her husband was a stonemason and he was injured due to a landslide that occurred at a quarry in which he was working. The Applicant claimed that her husband subsequently died. The Applicant sought compensation from authorities and her husband’s employer and after a year of trying but failing to obtain the compensation, let a protest in front of the Shaowu City Government in Shaowu City. The Applicant claimed that after 2 hours the police arrived and she was arrested. She claimed that she was detained and mistreated by other detainees by order of those detaining her. Eventually, with the help of a female police officer who was sympathetic to her the Applicant was able to secure her release. Her family was able to pay a bribe.
   • The Applicant claimed that her brother-in-law and her son had escaped from the protest and that the police continued to search for them. The Applicant also claimed that the police were routinely searching her home. Accordingly, relatives arranged for her to obtain a fake passport in the name of “Cai Rong” and she left China using this passport.
   • The Applicant claimed that if she returned to China she would be persecuted by Chinese authorities.

Tribunal decision

8. The Tribunal decision records a brief summary of the interview with the Department on the 12 March 2009. It notes that no new claims were made in her application for review and records in much greater detail the contents of the interview before the Tribunal on 8 July 2009. In the ‘Findings and Reasons’, the Tribunal indicated that it gave the Applicant the benefit of the doubt on some of her background claims but ultimately disbelieves her central claim that she had suffered harm in China.
9. The Tribunal ultimately concluded that the Applicant was not a credible witness (CB 99 at [51]) because of the serious doubts that the Tribunal had about the numerous inconsistencies in her evidence. The Tribunal considered that the Applicant obfuscated when she was asked questions about the evidence that she had given to the delegate that was inconsistent with the details given to the Tribunal (CB 99 at [49]). There were also inconsistencies in respect to the period of time that the Applicant claimed to have been detained by authorities being an event that occurred as recently as October/ November 2008 (CB 99 at [51]). The Tribunal observed that it was not satisfied that the Applicant had been honest and truthful at the hearing.
10. The Tribunal then explained to the Applicant many of the difficulties that it had with the Applicant’s evidence, being:
    1. the Applicant had no corroborative evidence whatsoever to support her claims;
    2. the Applicant’s delay in applying for a Protection visa, knowing that she had arrived on a false visa and would be expected to act quickly to avoid the situation where she would be deported back to China; and
    100. the more general claims that she feared persecution based on general human rights abuses and the absence of religious and political freedoms in China.
11. The Tribunal concluded that there was no evidence to demonstrate the Applicant held any genuine pro-democratic belief or was a supporter of political freedom or was someone who had expressed such beliefs either privately or publicly in Australia, let alone China. Accordingly, the Tribunal rejected the more general complaint ‘to fear harm amounting to persecution for a Convention reason’. In respect to the more particular concerns in (a) and (b), the Tribunal did not accept the Applicant’s claims and was not satisfied that there was a ‘real chance’ that the Applicant would be subject to serious harm amounting to persecution if she was to return to China now or in the foreseeable future.

Grounds of review

12. In the original application filed by the Applicant on 11 August 2009 with the assistance of Mr Harry Huang of Priscilla International Co Pty Ltd there are five grounds of review. These grounds are expressed in the form of submissions and suffer from repetition.
    • 1. The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
    • Particulars
    • In the Tribunal’s decision, it has stated that:
      • 49. Before considering her refugee claims, a key matter is whether her husband is in fact dead. At the interview with the department on 12 March 2009, the Applicant repeatedly stated in response to questions from the departmental official that her son was currently living with her husband in China. This is clearly at odds with her claim that the reason she was persecuted in China was because she was protesting against the failure of the authorities to provide compensation following his death in an industrial accident. When asked about this at the hearing, the Applicant obfuscated, initially denying that she had said this at the interview with the department but, when the Tribunal repeated its question, she then claimed that she was only asked at the interview who she lived with and she had replied that she lived with her mother-in-law, son and husband before his death. The Tribunal does not accept this claim.
    • Apparently, the information – “At the interview with the department on 12 March 2009, the Applicant repeatedly stated in response to questions from the departmental official that her son was currently living with her husband in China”- is the “information that was provided orally by the Applicant to the Department” (Section 424A(2A)(ba) of the Act)
    • Subject to section 424A(1) of the Act, the Tribunal must:
      • (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
      • (b) ensure, as far as reasonably practicable, that the Applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
      • (c) invite the Applicant to comment on or respond to it.
    • Apparently, there is nothing showing that the Tribunal has complied with its obligation under Section 424A(1) of the Act while the Tribunal has decided my review application.
    • 2. The Tribunal’s finding is obviously contradictory; and the Tribunal once again failed to comply with its obligations under s.424A(1) of the Act.
    • Particulars
    • In the Tribunal’s decision, it has stated that:
      • 52. The applicant claims in her protection visa application that a government official named Lan Lin commissioned her husband to make 20 stone lions but then reneged on the payment, only paying him RMB 100,000 not the RMB 600,000 that was the contracted price. She claims that Lan Lin subsequently persuaded her husband to work in a quarry near Shaowu City run by her brother, Jun Lin , which he agreed to do, but then on 7 October 2007 there was a landslide at the quarry and her husband was seriously injury and subsequently died in hospital on 22 December 2007. The Tribunal accepts these claims. The applicant claims that in January 2008 she began to contact Jun Lin to seek compensation for her husband’s death but was unsuccessful so, on the first anniversary of her husband’s injuries, she led 50 people, largely family members, to protest in front of the Shaowu City government. She claims her brother-in-law, Mr Guo Xiong Wu, drafted an open letter for her asking for the government to openly investigate Lan Lin and her brother, as well as to assist her, and they circulated 500 copies of the open letter. She claims that around 3pm the police arrived and dispersed the crowd and she was taken to the police station where she argued with police while being interrogated and shouted that Lan Lin and her brother should be arrested and so was designated to be a stubborn person with strong anti-government ideologies. She claimed she was beaten, mistreated, and punished by the police, and was also mistreated by criminals in detention in the same cell on the orders of the police.
      • 53. However, the applicant provides no evidence to support these claims, such as the detention order or warrant for her arrest, or even a medical certificate obtained in either China or Australia confirming the abuse she claims to have received. When questioned at the hearing about her release on 1 November 2008, the applicant emphasised that she had been only released on bail. When further pressed about this, she claimed for the first time that the reason she had been released was because she was bleeding from internal injuries sustained while in detention, and almost died. The Tribunal put to her that he did not recall this claim having previously been made in connection with her protection visa application or at the interview with the Department, and she replied that she had claimed that she had been hailed out...
    • Firstly, the Tribunal itself has made the finding that it has accepted “...a government official named Lan Lin commissioned her husband to make 20 stone lions but then reneged on the payment, only paying him RMB 100,000 not the RMB 600,000 that was the contracted price... Lan Lin subsequently persuaded her husband to work in a quarry near Shaowu City run by her brother, Jun Lin, which he agreed to do, but then on 7 October 2007 there was a landslide at the quarry and her husband was seriously injury and subsequently died in hospital on 22 December 2007...” However, fairly looking at the Tribunal’s decision, it actually does not accept all of my claims in relation to my husband’s decision.
    • Secondly, once again, the Tribunal considered the “information that was provided orally by the Applicant to the Department” as the reason or part of the reason in its decision but the Tribunal failed to comply with its obligations under Section 424A(1) of the Act.
    • Thirdly, I do have documentary evidences in support of my claims (Appendix A; and Appendix B; and Appendix C), but as I have claimed earlier at the Departmental interview or during the Tribunal’s hearing that it is really difficult for my family to send these documents to me from China for the reason that my communications with my family in China, including mails or phones, have been strictly monitored by the Chinese authorities.
    • As a matter of fact, if the Tribunal decided to refuse my review application with the information that “the Applicant provides no evidence to support these claims, such as the detention order or warrant for her arrest, or even a medical certificate obtained in either China or Australia confirming the abuse she claims she received” the Tribunal should at least give me a chance to comment on or respond to the information. But, the Tribunal failed to do so.
    • 3. The Tribunal’s decision has included a reasonable apprehension of bias; and the Tribunal failed to comply with its obligations under Section 424A(1) of the Act.
    • Particulars
    • In the Tribunal’s decision, it has stated that
      • 50. Further, the applicant has provided a copy of what is claimed to be the death certificate of Wu Guo Deng, who she claims was a husband, dated 22 December 2007. However, this does not indicate that the applicant was in fact married to Wu Guo Deng. Nor does she provide a copy of her marriage certificate or any other evidence that she was in fact married to Wu Guo Deng...
    • Firstly, the Tribunal has obviously no basic knowledge about the death certificate in China. As a matter of fact, my brother-in-law arranged the funeral. As he was the eldest in the family and I did not have a father-in-law, my brother-in-law is definitely eligible to sign the death certificate. It is very common procedure in China.
    • Secondly, the Tribunal failed to comply with its obligations under Section 424A(1) of the Act while it has considered the information as the reason or part of the reasons in making its findings in my case.
    • 4. The Tribunal’s decision has included a reasonable apprehension of bias.
    • Particulars
    • In the Tribunal’s decision, it has stated that:
      • 56. Moreover, the applicant claimed at the beginning of the hearing that she came to Australia because she had been persecuted in China and could no longer stay there. However, the Tribunal accepts her claim that she arrived in Australia on 21 November 2008 but did not apply for a protection visa until 2 January 2009, almost 6 weeks later...
    • Evidence from UNHCR Handbook ahs indicated that:
      • It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and understanding of an applicant’s particular difficulties and needs.
    • So, it is obviously not unusual that a refugee applicant like me, who is normally in a particularly vulnerable situation and who has finds himself/herself in an alien environment, must experience serious difficulties, technical and psychological, in submitting his or her case to the authorities of a foreign country, often in a language not his own. As a result, it is definitely possible for me to take at least 6 weeks to find an advisor and lodge my protection application.
    • Furthermore, I do not think that the Tribunal have necessary knowledge and experience and an understanding of my particular difficulties and needs as a person who has came to Australia on a false passport.
    • 5. Summary, the Tribunal failed to consider my claims properly and fairly.

Consideration

13. As I have indicated above, the Applicant had prepared notes which she sought to read as oral submissions. It was agreed that the interpreter would read these to the Court. As there was no objection to this course, the following statement was read by the interpreter:
    • According to section 424A RRT in their decision should provide the Applicant with relevant information which includes the relevant information that they have relied on in making their decision to the Applicant. In other words, if the Applicant is unclear on what information then the RRT should explain and clarify this information before refusing the application and the RRT should further invite the Applicant to make elaborations and rebuttals on this adverse information. However, in my case the RRT did not carry out their obligations under the Act of section 424A which means that they did not provide me with the relevant information.
    • Clearly they have relied on the information that was discussed and provided by the delegate in the first hearing and they say that my evidence in the delegate’s interview as well as the RRT hearing was inconsistent. However, the RRT did not provide me with the relevant information that they were referring to from the interview with the first delegate and I did not know which information and how this information is relevant to my application. In other words, if I was unclear of what relevance and what this information meant and my application was refused as a consequence then the RRT did not give me a fair opportunity or a real opportunity to make my submission and rebuttal through either oral submission or written submission. This not only is unfair to me but also severely breached section 424A.
    • Secondly, the RRT showed severe bias in my case. RRT considered that my evidence relating to the death of my husband is incredible, cannot be believed. RRT said that according to the death certificate the person’s name was not mine but that of my husband’s brother. Very clearly RRT has no understanding of the country situation in China. Firstly, China is my home town. So after a woman gets married she is part of the husband’s family. Secondly, the father is always the head of the household but my father-in-law, that is my husband’s father has already passed away. Therefore, my husband’s older brother, that is the oldest son of the family, should be the head of the household. Therefore my husband’s older brother organised the funeral and hence his name was on the death certificate and that is absolutely reasonable and logical and because of the RRT’s ignorance they refused my application and this is unfair.
    • Thirdly, RRT said that they refused my application also on the ground that I only applied for protection visa six weeks after my arrival. I just wanted to ask if I have experienced such difficulty and such torment to have come all the way to Australia facing a totally new and strange world, I not only am not aware of the local laws but also I do not know the language and I am not very educated. How would I know how to apply and understand the local immigration laws? In conclusion, I feel that the RRT’s decision was unfair and severely in breach of the law and I ask the court to dismiss the RRT’s decision and return my case back to RRT.
14. Ms Clegg provided the Court with both written and oral submissions. Ms Clegg indicated that the Applicant’s oral submissions repeat the matters that the Applicant has raised in her original application which the Minister’s written submissions indicate that the grounds are largely in the nature of a merits review. I will deal with the written submissions firstly by adopting Ms Clegg’s approach which is that the general complaints raised in the five grounds in effect, raise two principle bases on which the Applicant seeks to impugn the Tribunal’s decision.

Grounds One, Two and Three – Section 424A

15. Each of these three grounds raise an allegation of a breach of s.424A of the Act, however, there is nothing in the Court Book or the submissions to suggest that an obligation arose under this section.
16. In Ground 1, the Applicant asserts that certain oral information given by her to the delegate concerning the issue of her son living with her husband who she had previously claimed had been killed in a quarry accident and her dispute with the authorities concerned the payment of compensation for his life. This information does not evoke an obligation under s.424A(1) as this material does not fall within the meaning of ‘information’ for a s.424A purpose. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated at [17] and [18] the following...
    • Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
    • Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].
    • "does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
    • If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
    • (emphasis added).

The oral evidence given by the Applicant concerning this issue was not evidentiary material or documentation.

17. The Tribunal’s obligations about the circumstances of the Applicant’s son and her father simply involve the Tribunal’s subjective appraisal and thought processes concerning information before it. The Tribunal ultimately accepted that the Applicant’s husband had died as a consequence of the quarry accident and the statements made by the Applicant to the effect that her husband was alive was no ultimately “the reason or part of the reason for affirming the decision”: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 per French CJ, Crennan, Kiefel and Bell JJ at [22] – [26]; MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 per Heerey J at [27] – [30]. Ground one cannot be sustained and should be dismissed.
18. Ground two claims that the Tribunal failed to apply its obligations under s.424A(1) of the Act and sets this out in paragraphs [52] and [53] of the Tribunal’s decision with three particulars in support of this claim. The nature of these particulars is to raise complaint with the merits of the Tribunal’s reasoning. The Applicant is suggesting that any material in the form of a claim put forward with which the Tribunal disagrees should have been put to the Applicant to comment on prior to the Tribunal making its decision. None of the material raised in the particulars raised in this ground give rise to a s.424A obligation. This approach appears to be a misunderstanding of the operation of the provision and the substantial body of authority that now addresses the interpretation and understanding of this provision. Ground two cannot be sustained and should be dismissed.
19. Ground three addresses the death certificate that was issued for the Applicant’s late husband. Again the Applicant is challenging the merits of the Tribunal decision because of a claimed basic lack of knowledge in respect of the contents of the death certificates issued in China. The Tribunal in its decision at paragraph [50] raises the issue that there was no collateral evidence submitted by the Applicant that she was in fact married to the person named on the certificate. This could have been achieved by the presentation of a marriage certificate. This is also a misunderstanding of the Tribunal decision and the operation of the provisions of the Act. This finding does not attract a s.424A obligation.
20. The death certificate was given to the Department by the Applicant during the course of review of its information and falls within the exception of s.424A(1) in s.424A(3)(b)(a). This ground cannot be sustained and should be rejected.

Grounds Three, Four and Five – Reasonable Apprehension of Bias

21. Grounds three, four and five complain about a reasonable apprehension of bias and the failure to consider claims properly or fairly. The particulars provided in Grounds three and four indicate that the Applicant merely disagrees with the Tribunal’s reasoning and conclusions in relation to:
    1. the Applicant husband’s death certificate; and
    2. the Applicant’s delay in filing for a Protection visa.
22. Actual bias can be said to exist where the Tribunal member had a pre-existing state of mind which disabled the member from undertaking or rendering the member unwilling to undertake any proper evaluation of the relevant materials before them which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [35] and [72]. Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration whatever arguments may be presented: Jia Legeng (supra) at [71] and [72].
23. An apprehension of bias will exist where a fair minded lay observer, who is properly informed of the nature of the proceedings, the matters in issue and the conduct of the Tribunal would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question being decided: Refugee Review Tribunal Re: Ex Parte H [2001] HCA 28; (2001) 75 ALJR 982 at [27]. In SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16] their Honours stated
    • ... It is likely to be a rare and extreme circumstance that lack of good faith on the part of the administrative decision maker will be apparent by reference only to the reasons for the decision themselves.
24. The Applicant’s disagreement with the Tribunal’s decision or decision making process will not vitiate the decision on the basis of apprehended bias. In the absence of any contrary evidence, the claim of bias, actual or apprehended cannot be sustained and should be dismissed.

Issues raised by Applicant’s oral submissions

25. Ms Clegg submits that the Applicant’s oral submissions really repeat the matters raised in her original application which the Minister’s written submissions indicate are in the nature of a merits review. However, Ms Clegg indicated that she wished to make some supplementary points in relation to the alleged breach of s.424A of the Act. The Applicant’s primary grievance in relation to s.424A is a complaint that the Tribunal was required to write a s.424A letter on account of the alleged adverse information that the Applicant gave at the interview before the delegate. The Tribunal’s account of the delegate’s reasons is a claim that the Applicant feared harm in China because she had protested seeking compensation due to her husband’s death in an industrial accident. In the interview before the delegate, the Applicant said on a number of occasions that her son was alive in China and was living with her husband. Ultimately it appeared that the Applicant denied that at the interview but that was something that came out as one of the reasons that the Tribunal found as adverse information. The Applicant claims that the proposition that her husband was alive should have been put to her in a s.424 letter.
26. The Minister’s written submissions contends that the issue of whether the husband was alive or deceased was not information within s.424A(1) because ultimately on the final analysis it did not undermine the Applicant’s claim. The Tribunal in its reasoning ultimately gave the Applicant the benefit of the doubt and believed her that her husband was deceased. Consequently, this issue did not ultimately fall against her in terms of the Tribunal’s assessment. The supplementary point raised by Ms Clegg is that the Tribunal complied with s.424AA in relation to the information.
27. Paragraph [36] of the Tribunal’s decision (CB 96) reveals what occurred between the Tribunal and the Applicant about the proposition that on several occasions at the delegate’s interview, she had said categorically that the son was living with the husband, in other words, that the husband was in fact alive in China. The Applicant denies she said that so the Tribunal, in order to comply with s.424AA, went through, at least on its account, the appropriate and proper procedure in terms of applying s.424A. The Tribunal invited the Applicant to comment, telling her that if she wanted to, she could be provided with additional time to respond to that information.
28. I accept Ms Clegg’s oral submission that the Tribunal addressed the possible defect in terms of complying with the statute and complied with any substantive requirement of fairness. I accept the Tribunal’s approach to the issue of the death certificate and that its findings were open to it and it was merely one of the many factors that weighed against the Applicant in determining that she had no credibility.
29. I am satisfied that none of these grounds can be sustained and that the application should be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 24 March 2010