Li v Minister for Immigration & Multicultural Affairs [2000] FCA 19 (19 January 2000)

Last Updated: 4 August 2010

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural Affairs [2000] FCA 19

CONSTITUTIONAL LAW - whether Refugee Review Tribunal impermissibly exercised judicial power

MIGRATION LAW - whether Refugee Review Tribunal made an error of law within s 476(1)(a), (1)(c), (1)(e) and (1)(f) the Migration Act 1958 (Cth) - requirements for the breach of each of these - whether there can be a breach of s 476(1)(a) where circumstances of the case require the Tribunal to seek out information on a particular issue of relevance to its decision

Migration Act 1958 (Cth) ss 36, 65, 420, 476
Judiciary Act 1901 (Cth) ss 78B
Constitution s 51
Migration Legislation Amendment Act (No 1) 1998 (Cth)

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 cited
The Queen v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1 cited
Daubigny v Davallon (1794) 2 Anst 46; [1817] EngR 9; 145 ER 935 cited
Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 cited
Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395 cited
Ex parte Lo Pak (1888) 9 NSWLR 221 cited
N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127 applied
Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 applied
Chan Yee Kin v Minister for Immigration and Multicultural Affairs [1989] HCA 62; (1989) 169 CLR 379 cited
Lek v Minister for Immigration, Local Government and Ethnic Affairs (No 2) [1993] FCA 493; (1993) 45 FCR 418 cited
Commonwealth Banking Corporation v Percival (1988) 82 ALR 54 cited
Buljeta v Minister for Immigration and Multicultural Affairs (Katz J, 4 December 1998, unreported) cited
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 cited
Sarbjit Singh v Minister for Immigration and Multicultural Affairs (Lockhart J, 18 October 1996, unreported) cited
Jia Le Geng v Minister for Immigration and Multicultural Affairs 52 ALD 20 and, on appeal, at [1999] FCA 951 cited
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 cited
Kopalapillai v Minister for Immigration and Multicultural Affairs (O’Connor, Branson and Marshall JJ, 8 September 1998, unreported) cited
Minister for Immigration and Multicultural Affairs v Singh (1997) 74 FCR 553 cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577; [1999] HCA 21 cited
Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 cited

Blay et al Public International Law - an Australian Perspective 1997
Plender International Migration Law 2nd ed (rev)

LI YUQIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 67 OF 1999

DRUMMOND J
19 JANUARY 2000
BRISBANE (HEARD IN SYDNEY) (VIA VIDEO LINK)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 67 OF 1999

BETWEEN:	LI YUQIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DRUMMOND J
DATE:	19 JANUARY 2000
PLACE:	BRISBANE (HEARD IN SYDNEY) (VIA VIDEO LINK)

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse the applicant a protection visa. The applicant is a citizen of the People’s Republic of China (PRC); he arrived in Australia in April 1997 and applied for a protection visa soon after. The Tribunal held that the applicant was not a refugee within the meaning of that term in Article 1A(2) of the Convention relating to the Status of Refugees dated 28 July 1951, as amended by the Protocol relating to the Status of Refugees dated 31 January 1966, and so did not satisfy the criterion in s 36(2) the Migration Act 1958 (Cth) for the grant of a protection visa.
2. The applicant seeks review of the Tribunal’s decision on constitutional grounds and pursuant to s 476 the Migration Act.

Does the Tribunal exercise judicial power?

3. The applicant seeks an order quashing the decision of the Tribunal on the ground that it involved the impermissible exercise of the judicial power of the Commonwealth. (It was also said that the Minister or his delegate, in refusing a protection visa, impermissibly exercised this judicial power too.) Notices under s 78B the Judiciary Act 1901 (Cth) did not produce any intervention.
4. The applicant’s first submission was that a decision refusing to recognise a person as a refugee may put the life and liberty of the person at stake; it was therefore akin to the power of determination of criminal guilt and should be characterised as involving the exercise of the judicial power of the Commonwealth. Hence, the Tribunal’s decision was void.
5. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 27, it was said:

“There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character.”

6. It is now settled that the determination and punishment of criminal guilt involves the exercise of power that is exclusively judicial: Chu Kheng Lim at 27. Jacobs J, with whom Murphy J agreed, explained why this was so in The Queen v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62; (1977) 138 CLR 1 at 11:

“The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example.”

7. The right to be recognised as a refugee is not, however, one of these basic rights the determination of which the common law (and thus our Constitution) has historically recognised as the exclusive province of the judiciary.
8. According to The Oxford English Dictionary, 2nd ed, the term “refugee” came into the language to describe the French Huguenots who fled to England to avoid the renewal of religious persecution which followed the revocation in 1685 of the Edict of Nantes of 1598. However, it was only in the twentieth century that persons fleeing religious or political persecution in their country of origin came to be recognised in international law as entitled to the protection of states other than their own by reason of their being refugees. In Public International Law - an Australian Perspective, edited by Blay & Ors, it is said at 301:

“Refugees have traditionally been in a particularly vulnerable position at international law. Under customary international law, individuals received protection only from the state of which they were nationals. There was no obligation on states to protect nationals of states other than their own. This meant that whenever a state persecuted any of its own nationals, those persons, if they managed to escape abroad, found themselves totally bereft of protection at international law ... Their continued presence in any other state was at the forbearance of that state, and they could at any time be expelled from that state.
Refugees only began to obtain some measure of protection at international law when treaties were formulated to address the problems they faced. Such treaties first appeared during the inter-war years of 1919 - 1939, when the League of Nations sought to address various refugee problems that arose in Europe and the Middle East ...”

9. Persons fleeing to Australia as refugees avoiding persecution in their own countries only acquired rights under Australian law on the basis of their being refugees when the Parliament gave effect in municipal law to the 1951 Convention relating to the Status of Refugees: see now ss 36 and 65 the Migration Act. Previously, under the common law, supplemented by statute, such persons were subject to the laws applying to aliens generally, ie, to all persons born out of the allegiance of the King and within that of some other State: Daubigny v Davallon (1794) 2 Anst 46; [1817] EngR 9; 145 ER 935. A refugee is an alien of a special kind, viz, an alien who is unwilling to return to the country of his or her nationality. (As to the meaning “alien” now has in Australian law, see Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at 183 and at 189.) The forerunner of modern legislation dealing with aliens was the Alien Act of 1793, passed to deal with the influx of persons fleeing from the French Revolution, but applying generally to all aliens: Plender, International Migration Law, 2nd ed (rev) at p 64.
10. It has long been established in both English and Australian law that the State has full power to refuse aliens admission to its territory, to annex whatever conditions it pleases to their entry and to expel them. In Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395, the High Court, in holding that a federal statute providing for the deportation of kanakas was within the Commonwealth’s legislative power under s 51(xix) the Constitution, accepted that the Parliament could give effect to these well-established rules, which are set out in the head note:

“It is an attribute of sovereignty that every State is entitled to decide what aliens shall or shall not become members of its community. The right of a nation to expel or deport foreigners from the country is an unqualified and undeniable as the right to exclude them from entering the country, whether they are alien friends or enemies.”

11. Robtelmes remains good law: Chu Kheng Lim at 26.
12. The State’s sovereign power with respect to aliens originally involved the exercise by the Executive of the prerogative rights of the Crown. Robtelmes at 401. But as Griffith CJ observed in that case at 401 and 403, even in the absence of legislation displacing the prerogative powers over aliens, it had become established long prior to 1906, that though the prerogative power existed, the common law would not recognise its exercise except under the conditions authorised by some statute, a point forcefully made in Ex parte Lo Pak (1888) 9 NSWLR 221. The powers to refuse entry to and to deport any alien, though now commonly conferred by statute, are seen as executive in character: Chu Kheng Lim at 30 - 31.
13. The determination of whether an alien, including a refugee, should be permitted to enter British and Australian territory was never the exclusive province of the judiciary: originally, it was a subject matter of the Crown’s prerogative powers over aliens and then the subject matter of executive power exercised under legislative authority. The necessary historical foundation for the analogy relied on by the applicant to show that the determination of refugee status is exclusively judicial does not exist.
14. The applicant also submits that the Tribunal’s determination involved the exercise of judicial power because the nature of the power exercised by the Tribunal in making that determination is sufficient to stamp it with a judicial character. The applicant here relied on the same arguments put in N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127. Tamberlin J rejected them in pars [16] to [21] of his reasons. His reasoning was applied by Kiefel J in Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 at [26]. I respectfully adopt it as a correct statement of the law.
15. Neither the Tribunal nor the delegate exercised judicial power in refusing the applicant a protection visa.

The applicant’s claims

16. It is convenient to set out the case the applicant put to the Tribunal to better understand the case made for review of the Tribunal’s decision under s 476 the Migration Act. He claimed that in 1989, when he was a political instructor in a police unit within the Chinese Army, he became an open supporter of the pro-democracy movement within his police unit. After the 4 June 1989 Tiananmen Square incident, the applicant claimed that he was subjected to interrogation and physical violence at the hands of the authorities; he was demoted and was detained for three months. He said that he escaped from detention and fled to Vietnam in early September 1989, but was subsequently returned by the authorities there to the PRC. As a consequence of his escape and his political dissent, he said he was sentenced in 1990 to five years’ imprisonment and expelled from both the police and the Communist Party. The applicant claimed that in 1994, after he was released, he could not obtain work: he was denied his father’s former job at a Government-run factory. He could not obtain the licence from the authorities that was necessary to set up his own business.
17. During the course of the proceeding before the Tribunal, the Tribunal Member also asked the applicant on two separate occasions clear and specific questions about why, after his release from prison, he had not obtained work as an employee in private enterprise. His responses were uninformative, if not evasive: he said on one occasion, “I don’t have the opportunity now” and, on another, “I do not have any chance to go through that”.
18. In support of his case, the applicant relied on a photocopy of an indictment dated 16 January 1990 which he said was presented against him. This was a lengthy document, of which the Tribunal observed:

“Certainly, this conclusion (that an adverse political opinion was imputed to the applicant by his 1989 support for the students, later illegally departing and applying for political asylum in Vietnam) is supported by the ‘Indictment’ submitted by the applicant, if this indictment is genuine.”

19. He also produced various photographs of himself in uniform and what appears to be an original army identity card. At the Tribunal Member’s request, the applicant read from the card which he said identified him as a lieutenant with the Guilin City Uniformed Police holding the position of “political supervisor or leader of some sort”. He also said he had his national identity card at home: the Tribunal asked him to deliver it to it.
20. The applicant said that, despite attempting to flee to Vietnam a second time, in 1997, and being again returned to the PRC, contacts within the Chinese bureaucracy ensured he encountered no further punishment. The applicant also claimed that contacts enabled him to obtain the necessary entry and exit visa and passport to come to Australia in April 1997.

Tribunal’s findings

21. In the section of its decision headed “Findings and Reasons”, the Tribunal began by summarising the applicant’s claims about his special position in the police, his pro-democracy activities, his flight to Vietnam and his consequent lengthy imprisonment and expulsion from the Chinese Communist Party and the police. The Tribunal then said it had reservations about the applicant’s credibility. It did not accept as credible his evidence as to how he left the hospital in 1989 just before fleeing to Vietnam and said that that led the Tribunal to the position where it had “grave reservations as to whether the remainder of the applicant’s claims are also fabricated”. The Tribunal then said that nevertheless it had given the applicant the benefit of the doubt and “has determined the applicant’s claims on the following facts:” viz:

“The applicant was a police officer, he expressed support for the students in 1989 and he made a donation to them, and as a result, he was detained and mistreated. To avoid further punishment, he attempted to illegally depart to Vietnam. As a result of his attempted illegal departure he was detained for a period (the Tribunal is not satisfied as to how long that period was) and was dismissed from his job as a police officer. After his dismissal and detention, he had to report to the authorities for a time, he was demoralised, and he did not seek a job, apart from his father’s job which, consistent with the country information that there is no longer job preference given to children of employees in state-run enterprises, he was refused. In January 1997, he attempted to go to Vietnam, but returned to the PRC with no adverse consequences to him. In April 1997, he received a passport in his own name with the help of contacts, and he came to Australia. His only pro-democracy activity was in 1989.”

22. The Tribunal then posed the question for its determination: “[I]f the applicant returns to the PRC, will he face, in the reasonably foreseeable future, a real chance of persecution for political opinion imputed to him from his 1989 pro-democracy support for the students and/or from his illegal departure in 1990 and/or his aborted attempt to go to Vietnam in 1997 and/or his coming to Australia in 1997?” The Tribunal gave detailed reasons for answering this question adversely to the applicant. The main considerations that led it to this conclusion were that nothing adverse of a serious nature had happened to the applicant after his release in 1994, even though he had attempted to depart to Vietnam in 1997; it noted that the applicant had obtained a passport to travel to Australia which appears to contain the applicant’s true details and that the issue of passports and departure from the PRC are both subject to security checks, all of which indicated that the PRC authorities were not now interested in the applicant for a Convention reason. The Tribunal also found that the problems occasioned for the applicant by his pro-democracy support in 1989 and his subsequent illegal departure to Vietnam in 1990 “were finalised with his release from detention”, whether that was in 1994, as the applicant claimed, or earlier.
23. It is clear from the statement of facts set out above that the Tribunal was prepared, notwithstanding its reservations about the applicant’s credibility, to make findings of fact on the basis of accepting part, but by no means all of his evidence. The Tribunal found that the applicant was a police officer who had expressed support for the students in 1989, that he had illegally departed to Vietnam and that he was detained for a period and dismissed from his job as a police officer because of this illegal departure. But it is clear that the Tribunal was not prepared to accept that he held the position in the police that he claimed, viz, that he was a member of the armed police who was a CCP member with political instructor duties. Nor was the Tribunal prepared to find, as he claimed, that he was imprisoned for as long as five years or that this imprisonment was as a result, in part at least, of his political support for the students.
24. The applicant suggested that the Tribunal had failed to perform its duty of review in that it disposed of the case on the basis of a hypothetical factual scenario arrived at by rejecting the applicant as a credible witness and by then assuming, but not finding as established, a range of facts which did not reflect the totality of the applicant’s evidence. But it is, I think, clear from the Tribunal’s reasons that it did not avoid the necessary task of making the factual findings which it considered the evidence justified and equally clear that it disposed of the case on the basis of those factual findings.

The claims to relief based on s 476(1) the Migration Act 1958 (Cth)

25. Section 476(1)(e): The applicant claims that the decision of the Tribunal involved an incorrect application of the law to the facts. Firstly, it is said that though the applicant gave evidence that after his imprisonment and dismissal from the police, the Communist Party did not allow him to work, the Tribunal “did not consider whether the denial of Mr Li’s right to work amounted to persecution for a political reason”. Secondly, it is said that, by finding that the refusal to give the applicant his father’s job did not indicate discrimination against him for a Convention reason in view of the abandonment of the practice of giving preference to children of former employees of State-run enterprises, the Tribunal incorrectly applied the law by failing to give consideration to whether the refusal of employment was due to another reason, viz, his imprisonment because of his political activities.
26. Denial of work rights may constitute persecution for the purposes of the Convention. See, eg, Chan Yee Kin v Minister for Immigration and Multicultural Affairs [1989] HCA 62; (1989) 169 CLR 379 at 430 - 431; Lek v Minister for Immigration, Local Government and Ethnic Affairs (No 2) [1993] FCA 493; (1993) 45 FCR 418. There can be little doubt that the Tribunal understood this, given the attention it paid to the applicant’s claims that he was denied work because of his pro-democracy activities and the findings it made on those claims.
27. Neither complaint is made out in so far as it may allege a reviewable error within the first limb of s 476(1)(e), viz, an error involving an incorrect interpretation of the applicable law.
28. The main thrust of these complaints appears to be that the Tribunal’s decision involves reviewable error of law within the second limb of s 476(1)(e). But that ground of review is only available where the Tribunal has found certain facts and has incorrectly applied the law to those particular facts. The narrowness of this ground of review reflects the principle that fact finding is the province of the Tribunal, not the Court. Error of law within s 476(1)(e) is not made out by pointing to the Tribunal’s failure to find facts just as it is not shown by pointing to errors in fact-finding by the Tribunal. Cf Commonwealth Banking Corporation v Percival (1988) 82 ALR 54 at 60.
29. The Tribunal made a precise finding with respect to the applicant’s attempts to find employment after his release from imprisonment:

“After his dismissal and detention, he had to report to the Authorities for a time, he was demoralised, and he did not seek a job, apart from his father’s job which, consistent with the country information that there is no longer job preference given to children of employees in state-run enterprises, he was refused.”

30. It then referred to other evidence relevant to whether he was denied work and concluded:

“After considering the evidence, the Tribunal is not satisfied that the applicant was deprived of the right to earn a livelihood after his release ...”

31. The first complaint of error of law is thus nothing more than a complaint that the Tribunal refused to accept his evidence that after his dismissal from the police and release from detention, the Communist Party deprived him of the right to work. The second complaint of error of law is, in reality, a complaint that the Tribunal made the findings it did about his not obtaining work after his release from imprisonment and did not accept his evidence that there were reasons additional to the policy with respect to the children of former employees why he could not obtain work as an employee. Acceptance of that evidence of other reasons was necessary before the Tribunal could come under any obligation to consider whether those other reasons might show that the applicant had been persecuted for a Convention reason.
32. Neither complaint of error of law within s 476(1)(e) is made out.
33. A third reviewable error of law was said to have been constituted by the Tribunal wrongly limiting its inquiry to whether the applicant was deprived of his right to work after his release from prison: it was said that the Tribunal should also have considered whether, at the time of his imprisonment, he was deprived of his right to work and thus persecuted for a Convention reason.
34. As the submission here made recognises, what is relevant is not the fact that the applicant was imprisoned and so necessarily deprived of the right to work, but whether the reason for his imprisonment and consequent deprivation of the right to work was for a Convention reason. The applicant gave evidence that that was indeed the position. But the Tribunal was not prepared to accept that he was imprisoned because of his political support for the pro-democracy movement: all it was prepared to find was that he was imprisoned as a result of his “attempted illegal departure” to Vietnam. It cannot be said that the application of the relevant law to that finding necessarily leads to the conclusion that he was deprived of his liberty and thus of his right to work for a Convention reason. That particular conclusion could only follow if the Tribunal had made additional findings of fact which it was not prepared to make.
35. This complaint of reviewable error of law is not sustainable.
36. The applicant also claims that there is error in the decision within s 476(1)(e) because that the Tribunal Member incorrectly limited the application of the law to the facts by considering only whether the applicant had a relevant political opinion imputed to him when the Tribunal should have considered whether the applicant actually held the particular political opinion.
37. This complaint of reviewable error of law is unfounded. In the first passage in its reasons here relied upon, the Tribunal, in effect, observed that, if it had been prepared to accept the applicant’s evidence that he was imprisoned for as long as five years, instead of rejecting it, then that would have shown that the authorities were “imputing to him, a CCP member of the armed police and an instructor, an adverse political opinion”. The Tribunal’s decision involves no reviewable error of law within s 476(1)(e) where all it has done is comment on what the position might be if it were to find facts it was invited, but refused to find and which were accordingly not those on which the Tribunal’s decision to refuse the visa was based.
38. The second passage in which the Tribunal spoke of an imputed, as opposed to an actual political motive, is found in that part of its “Findings and Reasons” where the Tribunal dealt with whether the applicant’s departure to Australia in 1997 would result in a real chance of persecution for a Convention reason if the applicant were to return to the PRC. The Tribunal found that, in contrast to his departure for Vietnam in 1990, the applicant’s departure to Australia “was on a valid passport issued in his own name and the Tribunal is not satisfied that his departure was illegal”. After considering the relevant evidence, the Tribunal found that, if the applicant were to return to the PRC, he would not face, in the reasonably foreseeable future, a real chance of persecution for his 1989 support for the pro-democracy movement. It was in the context of moving on to consider the position if, contrary to the facts found by the Tribunal, the applicant’s departure for Australia in 1997 was illegal, that the Tribunal commented “that a political motive would not generally be imputed to a person who makes an illegal departure” and that, even if the Tribunal were to find that his 1997 departure to Australia was irregular “which the Tribunal does not accept, and he was prosecuted on return to the PRC, the prosecution would be for a breach of a law of general application, the exit-entry laws, rather than persecution for a Convention reason”. Again, the Tribunal does not commit a reviewable error of law within s 476(1)(e) by commenting on what the position would be if it were to find facts different from those it was prepared to find and on which it based its decision.
39. Further, it is clear enough, from what the Tribunal here says, that if it had been prepared to accept his evidence that he was imprisoned for as long as five years, it would have accepted that that imprisonment constituted persecution for a Convention reason: if it had been prepared to accept that evidence, it is clear enough that the Tribunal would have held that such persecution resulted from the authorities imputing to the applicant the adverse political opinion which he said he in fact held.
40. As Buljeta v Minister for Immigration and Multicultural Affairs (Katz J, 4 December 1998, unreported) shows, there can be cases in which the decision-maker falls into error by determining a claim to refugee status on evidence as to opinions that the foreign authorities may impute to the claimant where the claimant holds actual opinions different from the imputed ones, but which are also relevant to his claim to refugee status. But no reviewable error is involved where the Tribunal, in evaluating a claim to refugee status, speaks of relevant opinions imputed to the claimant where the evidence is that such imputation can only be made because they are the opinions the applicant actually holds.
41. As to the second passage here complained of, if the Tribunal had been prepared to find that the applicant’s departure for Australia in 1997 was illegal, it would have made no error of law in confining itself to whether that would have resulted in a political motive being imputed to the applicant sufficient to attract a risk of persecution for a Convention reason if he were to return to the PRC, given that the Tribunal, as it expressly says, would also have found that a chance of such persecution would be remote since the applicant had not engaged in any pro-democracy activity after 1989, was no longer a policeman and the matter of his 1989 activity/1990 departure had long been finalised: the only new consideration to be evaluated in deciding whether this applicant would be exposed to Convention-related persecution on his return to China would be his illegal departure and the significance the PRC authorities would have attached to that, ie, the motives they would have imputed to the applicant because he illegally left the country.
42. Section 476(1)(f): The applicant claims that the decision of the Tribunal was induced or affected by actual bias. Whether this ground is made out is governed by the following principles:

(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123, 127 and 134 - 135; Sarbjit Singh v Minister for Immigration and Multicultural Affairs (Lockhart J, 18 October 1996, unreported) at 9 and 10 and Jia Le Geng v Minister for Immigration and Multicultural Affairs 52 ALD 20 at 36 and, on appeal, at [1999] FCA 951 at [161].

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation: Jia Le Geng at 36.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias: such bias may be subconscious, provided it is real: Sun at 127.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party’s position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case. Sun at 123; Sarbjit Singh at 9 and Jia Le Geng at 36.

43. The applicant contended that actual bias by the Tribunal was revealed by what was said to be the Tribunal’s unwarranted propensity to challenge the applicant’s credibility. Reference was made to a number of issues in respect of which this is said to have occurred, viz, his accounts of his escape from hospital and his claim that he was imprisoned for as long as five years.
44. In criticising the Tribunal for challenging the applicant’s credibility on these issues, the applicant misunderstands the proper role of the Tribunal and ignores the legislative framework within which the Tribunal must operate. It is not a court of law in which legal representation is the norm: the impartiality of a judge is thus protected by there being no need to become extensively involved in eliciting evidence from a party. See Kopalapillai v Minister for Immigration and Multicultural Affairs (O’Connor, Branson and Marshall JJ, 8 September 1998, unreported) at 14. Even if a party to proceedings in a court is not represented, there are fairly narrow limits within which a judge can take on the task of eliciting that party’s evidence: see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438. The Tribunal is not subject to any like restrictions. Under the Migration Act in the form in which it stood at the time of the Tribunal’s decision, if the Tribunal was not prepared to grant a protection visa on the papers, it was required to give the applicant an opportunity to appear before it to give evidence and was entitled to obtain by its own actions such other evidence as it considered necessary (s 425(1)); in order to gather the information necessary to arrive at its decision, it was empowered to require the Secretary to have any investigation it considered necessary made (s 427(1)(d)); it could compel persons to appear before it to give evidence (s 427(3)) and no person, the applicant included, was entitled to be represented by a legal or other agent or to examine or cross-examine any other person giving evidence to the Tribunal (s 427(6)); the Tribunal could delegate its evidence-gathering activities to another (s 428) and its proceedings had to be in private (s 429).
45. The Tribunal’s role was (and under the current legislation still is) manifestly inquisitorial.
46. The issues in respect of which the Tribunal sought to test the applicant’s credibility and in respect of which it is said the Tribunal revealed actual bias were issues of relevance to whether it could be satisfied that the applicant was entitled to a protection visa. The Tribunal had to elicit the information on these issues by questioning the applicant itself. It was not bound to accept uncritically every answer made by him. In my opinion, the Tribunal was entitled to test the applicant’s credibility on these various issues in the manner it adopted. It questioned him closely and at some length about his escape from the hospital, in the course of which it raised with him aspects of his story that were sufficiently questionable or in conflict with earlier versions given by the applicant to justify the Tribunal drawing them to his attention, explaining that the Tribunal was concerned about the reliability of his account and inviting explanation from him. The form its expression of doubt took about the reliability of his evidence that he had been sentenced to five years’ imprisonment was an appropriate intimation to the applicant of the Tribunal’s reasons for doubting this claim in the context of the Tribunal inviting further explanation from the applicant. Far from the Tribunal’s actions here suggesting a closed mind, the reverse is the case: the Tribunal appears to have acted fairly in giving the applicant opportunity to allay its concerns about the claims he was making.
47. In complaining that the Tribunal challenged in an unwarranted way the applicant’s account of the beating inflicted on him which led to his hospitalisation, the applicant pointed to the comment by the Tribunal - “I don’t want to know”. This comment is in a context in which the Tribunal was seeking, by a series of non-leading questions, to elicit information from the applicant about his imprisonment. The applicant accordingly could not and did not suggest that it showed that the Tribunal had attempted to prevent the applicant adducing information that might be favourable to his case. All that the Tribunal here seems to intend by this comment was to stop the applicant going into every detail of the injuries he said he received in the beating, detail the Tribunal would properly consider unnecessary for it to have to perform its task. This complaint appears to be an example of the applicant seizing upon every possible aspect of the proceeding before the Tribunal which might serve to bolster the complaint of actual bias.
48. In contrast to complaining of actual bias because the Tribunal put the applicant explicitly on notice of its concerns about certain of his claims, the applicant also makes a number of complaints of actual bias being revealed because the Tribunal formed views adverse to the applicant’s credibility on matters without giving the applicant an indication of its concerns and thus an opportunity to deal with them. These complaints are unfounded factually. As is apparent from, eg, p 59 of the transcript, the Tribunal did give an indication to the applicant that it was concerned about the reliability of his evidence that he was imprisoned for as long as five years. This was done in an apparently courteous way and was sufficient to lead the applicant to make a responsive explanation. Further, it told the applicant of its experience with false documents emanating from China in a way sufficient to draw the applicant’s attention to the need for offering any proof he might have of the genuineness of the various documents he produced to the Tribunal.
49. Complaint was also made about what was described as a facetious remark by the Tribunal to the applicant with respect to his personal relationships with his ex-wife and his de facto wife. A perusal of the transcript shows that the exchange complained of occurred in the course of the Tribunal trying to extract information from the applicant about his relevant movements within China. The comment, read in its context, does not appear to be inappropriate, in view of the Tribunal’s obvious concern to direct the applicant’s mind to the point about which it was seeking information, but having difficulty in obtaining from the applicant.
50. Reliance was also placed on conclusions expressed by the Tribunal said to involve misstatements by the Tribunal of the applicant’s evidence as showing actual bias. For example, the Tribunal was said to have misstated the applicant’s evidence in its reasons for decision as to his response to the Tribunal’s query whether he had attempted to get a job in private enterprise. This criticism is unfounded: reference to the transcript of the applicant’s evidence shows that he was vague and unresponsive about whether he sought work as an employee in private enterprise in a context in which he was being questioned closely by the Tribunal about his attempts to find work.
51. Actual bias was also said to be evidenced by the failure of the Member to comment on the authenticity of the identity card which the applicant delivered to the Tribunal at its request. That submission misstates the position. The Tribunal recorded in its reasons its erroneous belief that the applicant had failed to meet its request to produce the card. The Tribunal regrettably was mistaken in its belief that the card had not been produced. But, by itself, that mistake is no evidence of any bias against the applicant. The applicant did not attempt to show that the Tribunal Member’s ignorance of the true position was suggestive of a closed mind on the part of the Tribunal. Nor is the Tribunal Member’s apparent unfamiliarity with some of the place names in China to which the applicant referred in his evidence evidence of bias. Even if it could be said that the Tribunal Member was under a duty to prepare herself for the hearing by familiarising herself with Chinese place names of possible relevance, and even if it could be said that she failed to perform that duty, that is as far as the applicant’s complaint goes. By itself, it cannot be said to evidence bias: too many other possible explanations are open.
52. Neither any single matter relied on by the applicant nor all those matters taken together are suggestive of actual bias by the Tribunal.
53. Section 476(1)(c): The applicant claims that the decision is infected with reviewable error within s 476(1)(c) because it was based on “findings not supported by any evidence” and so was not within jurisdiction. Firstly, it is said that there was no evidence on which the Member could doubt the length of the applicant’s stay in prison. The complaint here in truth is that the Tribunal refused to accept the applicant’s evidence on this point. But it was not bound to do that and, in any event, it gave a rational explanation for thinking aspects of the applicant’s evidence were wanting in credibility. Secondly, it was said there was no evidence that “[t]he escape from hospital is central to the applicant’s claims”. It is difficult to understand how this could be thought to be capable of constituting a “no evidence” ground of review. The applicant’s submissions seem to acknowledge this, in so far as they recognise that the Tribunal’s comment to this effect was not a finding of fact, but what counsel called “a presumption on the part of the Member”. This comment is nothing more than an explanation of the approach the Tribunal adopted in finding the facts it was prepared to find; it is not itself a finding of fact.
54. Section 476(1)(a): The applicant alleges that s 424 the Migration Act was not complied with and therefore the Tribunal failed, in breach of s 476(1)(a), to observe procedures required by the Act. Section 424(1), as it currently stands, reads:

“424(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”

55. The applicant relies on the fact that the Tribunal asked him to deliver to it promptly the national identity card he spoke about in his evidence and mistakenly believed that he had failed to do that. It appears that identity card was delivered promptly to the Tribunal, but owing to internal communication problems within the Tribunal, was never given to the Tribunal member. It said that by failing to have regard to this identity card, the Tribunal failed to have regard to information, which its own request showed to be relevant information, and therefore breached s 424(1). At the end of the hearing, the member constituting the Tribunal made these comments:

“Well I have to think whether there’s a real chance that you are going to be harmed.
Okay. So what you are going to do is drop off tomorrow before 4.30 national identity card and I’m going to send that and this to the Document Examination Unit for them to have a look and see if they are genuine because the Document Examination Unit takes two or three weeks, it will probably be about five or so weeks before you get your decision.
...
What happens from today is that I go back to my office and think about what we’ve spoken about today and have another look at your file and I wait for you to bring in the identity card and I send that and your pass off to the Document Examination Unit and then I write a decision after I have got all the information in front of me.”

56. The second document referred to as “this” and the “pass” appears to be the army identity card already mentioned.
57. Though the applicant never suggested that he obtained a passport that was false in any particular, it appears that the Tribunal may have doubted the applicant’s identity and sought the card to assist it in deciding that issue. In its reasons, the Tribunal said that it:

“has no evidence before it which indicates that the passport issued to the applicant contains other than the applicant’s true details; the Tribunal notes that despite the applicant being invited at the hearing to submit to the Tribunal his identity card in order that the Tribunal could check whether the numbers on it and the passport were different, the applicant has not done so.”

58. But the Tribunal ultimately seems to have accepted that he was the person he claimed to be even though it never made the check it said it intended to, for lack of the card. (A comparison of the passport and the identity card which the applicant did, in fact, lodge with the Tribunal shows that the applicant’s identity card number in the passport is identical to that on the card itself.)
59. The army identity card has a different significance. The Tribunal accepted that the applicant had been a policeman; in so finding, it may have been influenced by the photographs. If the army identity card did contain the information described by the applicant in evidence and if it were genuine, the Tribunal would have been compelled to find that the applicant was a more important police official than a mere police officer. It does not appear from the Tribunal’s reasons, however, that it did have this document examined for authenticity despite saying that it would do so. (In its reasons, the Tribunal refers to the applicant producing “a copy of the CCP membership card dated 1 May 1988”. This does not seem to be the army identity card from which the applicant read in evidence.) Perhaps the Tribunal’s mistaken belief that the applicant had failed to make good his promise to deliver his national identity card to the Tribunal, which it also said it would have examined, caused the Tribunal not to follow that course. But the authenticity of the army identity card was an important issue. Proof of its genuineness would confirm his claim to a special position in the police, which the Tribunal did not accept. Further, one of the three reasons the Tribunal gave for not accepting the applicant as a witness of truth on important matters generally, was the doubt it considered was cast on his claim that he was detained and beaten for some months in 1989 for supporting the pro-democracy students, by the country information in a particular DFAT cable: this indicated that the authorities did not treat harshly those who were marginally involved in 1989. If it had found that he was not merely a police officer but a commissioned member of the armed police with instructor duties of the kind he described, the Tribunal could not have found support for that finding in that particular cable: it deals with the position of fringe supporters of the pro-democracy movement of whom it says there were “at least one million” in Beijing alone in May/June 1989. It has nothing at all to say about the attitude of the PRC authorities to police officers holding special positions like that claimed by the applicant who supported the dissidents.
60. Section 424, as it currently stands, was inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth). Neither counsel checked when it came into effect. Although that Act was assented to on 11 December 1998, ie, prior to delivery of the Tribunal’s decision, it did not come into force until 1 June 1999. As at the date the Tribunal gave its decision, 30 December 1998, it was not bound to comply with this provision.
61. Prior to the 1998 amendments coming into force, s 425(1) in the Act as it then stood had some correspondence with the new s 424(1) in so far as it provided that, where the Tribunal was not prepared to grant a protection visa on the papers, the Tribunal had to give the applicant an opportunity to appear before it to give evidence and “(b) may obtain such other evidence as it considers necessary” - ie, necessary for use by it in the discharge of its functions, including the making of its decision.
62. The current s 424(1), like the old s 425(1)(b), empowers the Tribunal of its own motion to obtain any material which it considers it needs to have in order to make its decision. It may be legitimate to read the old s 425(1)(b) as casting on the Tribunal by implication the duty now spelled out in the new s 424(1) to have regard, in making its decision, to any such material obtained by it.
63. But even if the applicant were treated as relying on the old provision rather than the current one, the difficulty he would face is that the Tribunal appears to have decided not to obtain the information as to the authenticity of the national identity card or as to the army identity card which it said at the hearing it intended to obtain. The case the applicant really needs to make out to attack the Tribunal’s decision is that it was under a duty imposed by the Act to obtain this information, which it breached.
64. What the Full Court said in Minister for Immigration and Multicultural Affairs v Singh (1997) 74 FCR 553 at 560 - 561 is inconsistent with s 425(1)(b) (and s 424(1) also) of itself imposing a duty on the Tribunal to seek out information. But the Full Court there said that ss 425(1), 426(2) and (3) and 427(1)(d) in the form in which they stood at the time of the decision of the Tribunal now in question:

“... show that the Tribunal’s role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.”

65. The Full Court suggested, without deciding the point, that in the exceptional case in which the Tribunal might be under a duty to make a particular inquiry, a breach of that duty would expose the decision to review for error within s 476(1)(a), if the obligation imposed on the Tribunal by s 420(2)(b) could be said to require a procedure to be observed in connection with the making of a decision. In view of the decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577; [1999] HCA 21, s 420 cannot be relied on to give rise to a duty in the Tribunal to follow, as a procedure within s 476(1)(a), a line of inquiry of its own. But in the later case of Yilan v Minister for Immigration and Multicultural Affairs [1997] FCA 854, the Full Court noted that the argument there put in reliance on old ss 424, 425(1)(b) and 427(1)(d) that the Tribunal was under a duty to conduct inquiries of its own into the authenticity of certain documents, breach of which would leave its decision exposed to review for error within s 476(1)(a), “bypasses s 420”.
66. It may be that there is a good legal foundation for such an argument, not by reason of any particular provision of the Migration Act, but rather by reason of the inquisitorial procedure the Tribunal must follow, as revealed by the provisions in the Act to which I have referred in discussing the inquisitorial nature of the Tribunal’s role: where the circumstances of the case are such as to oblige the Tribunal to seek out information for itself, in order to discharge its duty as an administrative decision-maker to make its own decision on whether a claimant is a refugee, a failure to do that might be said to involve such a failure to follow the inquisitorial procedures required by the Migration Act as to amount to error within s 476(1)(a).
67. The general rule is that a party will be bound by the way he or she conducts their case. Though he complained of the Tribunal’s failure to check his national identity card, that failure, for the reasons given, does not appear to be of much significance to the decision the Tribunal reached. The applicant did not argue that the Tribunal’s decision was flawed with reviewable error because it failed to inquire into the authenticity of the army identification card. But the Tribunal recognised during the hearing that this issue was such an important one that it warranted the Tribunal itself having that card also expertly examined. It did not explain why it abandoned the action it said it would take to have that check made. It could not have justified its decision by the reasons it gave if the card were shown to be genuine; if that card had been found to be genuine, the Tribunal may have come to a decision in favour of the applicant.
68. In these unusual circumstances, I think the applicant should have an opportunity to try to show that the Tribunal’s failure to have the check made on the authenticity of the army identity card that it said it would have carried out amounts to error within s 476(1)(a) and, if it does, whether relief should take the form of an order under s 481(1)(a) setting aside the Tribunal’s decision or be limited instead to an order under s 481(1)(b) requiring the Tribunal to have this check made and to reconsider its decision in the light of the results of that check.
69. The applicant also contended that s 424(1) was not complied with because the interpreter mistranslated some evidence he gave in answer to concern expressed by the Tribunal as to the reliability of his evidence that he received as much as five years’ imprisonment following his attempted illegal departure to Vietnam and notwithstanding his earlier support for the pro-democracy students. The transcript records his explanation:

“Because I’m a serving person in the Army, punishment for serving officers in the Army are particularly severe.”

70. He, in fact, said:

“Because I’m a serving person in the Army, it is particularly harsh for people serving in the Army in political cases.”

71. I do not consider this difference in the context of the hearing during which this evidence was given has sufficient significance to ground any challenge on any basis to the decision.
72. I will therefore adjourn this case for further consideration.
    

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 19 January 2000

Counsel for the Applicant:	R Killalea and F Coorey
Solicitor for the Applicant:	Kalmata Lawyers
Counsel for the Respondent:	RM Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 July 1999
Date of Judgment:	19 January 2000