SZOCK v Minister for Immigration and Citizenship [2010] FCA 719 (9 July 2010)

Last Updated: 21 July 2010

FEDERAL COURT OF AUSTRALIA

SZOCK v Minister for Immigration and Citizenship [2010] FCA 719

Citation:		SZOCK v Minister for Immigration and Citizenship [2010] FCA 719
Appeal from:		SZOCK v Minister for Immigration & Citizenship & Anor [2010] FMCA 253
Parties:		SZOCK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 466 of 2010
Judge:		KATZMANN J
Date of judgment:		9 July 2010
Catchwords:		MIGRATION – application for protection visa – jurisdictional error – whether Refugee Review Tribunal failed to comply with s 425 of the Migration Act – whether Refugee Review Tribunal failed to give a “real and meaningful” invitation under s 425 – whether Tribunal misled applicant at hearing about the real issues and thereby deprived him of a chance to present evidence and arguments – Tribunal not obliged to provide a “running commentary”
Legislation:		Federal Court of Australia Act 1976 (Cth), s 24(1)(d) Migration Act 1958 (Cth), ss 415, 424A, 425, 474, 476
Cases cited:		Branir Pty Limited v Owston Nominees (No 2) [2001] FCA 1833; (2001) 117 FCR 424 cited Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 cited Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 cited Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 considered MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 cited Plaintiff S157 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 cited Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 cited Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 cited SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 cited
Date of hearing:	25 June 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	67
The appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 466 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOCK Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	9 JULY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant pay the first respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 466 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOCK Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KATZMANN J
DATE:	9 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On its face this case raises an issue about the scope of the obligation imposed on the second respondent (Tribunal) by s 425 of the Migration Act 1958 (Cth) (Migration Act) to invite an appellant to appear before it, give evidence and present arguments. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [35] the Full Court held that compliance with s 425 is both a necessary condition and an element of a fair hearing before the Tribunal. The appellant accepted that he was invited to attend the Tribunal hearings but contended in his notice of appeal that he did not have “a genuine chance to present arguments relating to the issues arising in relation to the decision under review” (emphasis in original). The decision under review was a decision of a delegate of the first respondent (Minister) to refuse him a protection visa. This proceeding is an appeal from a judgment of the Federal Magistrates Court (FMC) refusing an application for judicial review of the decision of the Tribunal affirming the Minister’s decision.
2. Despite the complaint of a breach of s 425 and the allegations (at least in the notice of appeal) of bias on the part of the Tribunal, in truth, the appellant had one grievance – he was not believed. As the jurisdiction of the FMC is limited to review for jurisdictional error, even if the Tribunal were wrong to come to that view, in the absence of jurisdictional error the Federal Magistrate was powerless to correct it. The Federal Magistrate detected no jurisdictional error. For the reasons that follow I can find no error in her reasons. In the result I have no alternative but to dismiss the appeal.

Factual background

3. The appellant hails from Fuqing in Fujian Province in the People’s Republic of China. He is a Chinese citizen and holds an identity card showing he is of the Chinese Han ethnic group. He is 21 years old. He entered Australia on 6 June 2009 on a fake Hong Kong passport showing a false date of birth, and holding a subclass UD 976 (Electronic Travel Authority) visa issued on 8 May 2005. On arrival the visa was cancelled, he was detained and questioned and he has been in immigration detention ever since, first in Maidstone in Victoria and then in Villawood in Sydney.
4. On 25 June 2009 he applied for a protection visa.
5. In his application (completed with the help of a migration agent) the appellant asserted that he had to leave China in order to escape persecution by the Chinese government. He claimed his father and two sisters were devout Christians who had been active members of the Local Church, which was regarded as “illegal” and “anti-government”. Consequently, he reported, they were persecuted and, because he was a member of the same family and was also involved with the Local Church, he, too, was at risk of persecution. The application was very detailed, but was largely focussed on the harm visited upon other members of the family.
6. The appellant stated that his father had been imprisoned by the Public Security Bureau (PSB) for two years in the late 1990s and his father and older sister (a leader of a large church youth group) were both arrested by the PSB in April 2003. He added that his father had been forced to accept “reform through labour” from then on, which, on the next page of the application, was described as imprisonment in an unknown labour camp. He said his second sister was also arrested (in 2007) and detained for over a month on suspicion of “illegal” and “anti-government” religious activities. He claimed that, after her release from custody, she left China in 2007 on a false passport.
7. At the time of his father’s arrest, he said, he was eight years old and in first year at primary school. He claimed he was discriminated against at school, often humiliated by teachers and bullied by fellow students and his mother withdrew him from school. He maintained that his family had been harassed by the PSB since 1997. He said two of his sisters now live in Australia. He also claimed that, with others, he had secretly distributed promotional material for the church to residents near a local vegetable market and that he was arrested and questioned after a police raid on his place of employment (according to him, a focus for local religious activity) in May 2009. On 5 June 2009, with the assistance of friends of a “brother” from the church he left China and stated that he feared persecution if he were to return.
8. He gave no account in the application of having been assaulted or suffering from any injury. On induction at the two detention centres (on 9 June and 3 July 2009) he was assessed as fit and well with no health problems. In these assessments he apparently twice denied ever having “experienced physical harm”. On 27 July 2009, however, the medical records reveal an account of a head injury in China in 2005 after his arrest. On 7 August 2009 a doctor took a history, recording that he said he was hit with a stick at the age of 17.
9. On 23 July 2009, through a Mandarin interpreter, the appellant was interviewed by a delegate of the Minister. Later, a migration agent submitted a statutory declaration on his behalf in which he said (amongst other things) that in 2005 he started to attend the youth group of the Local Church and at such a gathering in May 2005 he was arrested by the PSB, interrogated and fingerprinted. He also said that he had been refused entry into the army because the authorities discovered his “negative” record with the PSB and it was Chinese Government policy not to allow Christians to enlist.
10. On 5 August 2009 a delegate of the Minister refused the application. He found the appellant to be a poorly educated young man with limited capacity for independence. He thought that the main reason the appellant came to Australia may have been not to avoid serious harm but to obtain the support of his sisters since he had moved away from his mother’s influence and had lost the support of the church “brother” who had helped him to leave. He was satisfied that he was a Christian but was not satisfied that he had any profile that would make him a person of interest to the PSB. In any event, he found he could safely and reasonably relocate to another part of China and continue practising in the Local Church without a real chance of persecution. The appellant applied to the Tribunal for a review of the Minister’s decision. The Tribunal has all the powers and discretions vested in the Minister: Migration Act, s 415. So its review is conducted on the merits.

The Tribunal hearing

11. The proceeding took an altogether different turn in the Tribunal. The Tribunal member quickly became suspicious about whether the appellant was related to the women he had described as his sisters and the man he had referred to as his father.
12. The appellant was accompanied at the first Tribunal hearing on 27 August 2009 by the migration agent who represented him. A woman, who said she was his sister, and who had the same surname, XYH, attended as well. Another woman with the same surname, whom the appellant also described as his sister, LH was listed as a witness to give evidence by telephone from Brisbane. The hearing was conducted with the assistance of an accredited interpreter in Cantonese. The Tribunal member satisfied himself that there were no difficulties in interpretation and no suggestion to the contrary has been made.
13. The appellant told the Tribunal that he feared persecution because the police had assaulted and injured him during the raid in May 2005 and he continued to suffer from the attack and was often forgetful. He showed the Tribunal a photograph which appeared to be a family group photograph and showed him as a young boy aged about 12 with his parents, four sisters, a brother-in-law and a niece. He said he had four sisters (although the application and another official document he gave to the Department of Immigration and Citizenship had mentioned five). In response to further questions he said he did in fact have five sisters and claimed to have thought that the Tribunal’s questions were concerned with the photograph. He said he did not know the name of the “brother-in-law”. The Tribunal member questioned him about his travel documents and identity papers and, specifically, whether he had ever owned any previous travel document before he received the fake Hong Kong passport on which he said he travelled to Australia. He said he had not, but when the Tribunal member showed him the front page of a PRC passport issued on 20 April 2007, he identified it as his own and said he thought the earlier question related to Hong Kong documents.
14. The Tribunal said in its reasons that it found the appellant’s evidence difficult to follow and wondered whether he had a medical problem. It arranged for several adjournments and told the migration agent that it was concerned about the appellant’s evidence. It confirmed through the interpreter and the migration agent that there was no difficulty with the interpreting. It advised the appellant that it would like to examine his medical records. He consented to this course. It correctly noted that the medical records did not contain any reference to health problems before mid July 2009.
15. The Tribunal flagged with the appellant concerns it had about the genuineness of the claims he made about his family situation, pointing (amongst other things) to his account to the delegate where he failed to name either his parents or his sisters. It suggested he might want to consult with the migration agent and his sister and provide DNA test results to prove their relationship.
16. After one of the adjournments the migration agent said that XYH wanted to give evidence in private (that is, in the absence of the appellant) about important information concerning the family that she did not want him to know. This evidence was recorded in a statutory declaration provided to the Tribunal after the hearing.
17. In her statutory declaration XYH said:
    • She was the appellant’s eldest sister.
    • Her parents had five daughters.
    • A son in a family was a necessity under local tradition (for reasons explained in the declaration).
    • In December 1988 her uncle’s wife found an abandoned baby “who was born just for several days” and she gave him to XYH’s parents. That baby was the appellant.
    • Her parents never told the appellant the truth about his origins.
    • The appellant grew up believing he was their natural son.
    • She and her sister LH were persecuted by the authorities as active members of the Local Church and have been accepted as refugees.
    • Her father played an active leading role in the Local Church in China and has been in prison there since April 2003.
    • The appellant has been subjected to persecution “owing to his particular family relationship”.
18. The Tribunal decided that it was “unavoidable” that it signal to him that his relationship with the family was in issue and, despite the request for confidentiality, the Tribunal member resolved to tell the appellant that XYH said she was “not related by blood to [XYH] or other members of her family”. I note that she still maintained he was a member of the family and at risk for the same reasons as they, although the Tribunal said it did not consider it necessary to convey this, or any other, aspect of her statutory declaration to the appellant.
19. The Tribunal resumed its hearing on 14 September 2009. Again, the Tribunal member said he had difficulty with the answers the appellant gave. The hearing was conducted over more than four hours with several breaks. The Tribunal described the appellant’s evidence as “laboured, and often sparse and disjointed”, and noted that several times he gave “irrelevant or divergent response[s]”. It also remarked that at times he was “unable or unwilling to answer basic questions” including about his activities from 1998 to 2008 and noted that this contrasted with his “often fluent and seemingly rehearsed language on aspects of his refugee claims, including critical dates”. Some of the answers he gave were at odds with the account he had given in his application. In response to the Tribunal’s questions he said he was baptised as a teenager but could give no more precise answer about when this had taken place. The Tribunal noted that he described baptism “in quite fluent terms, adding also a reference to the crucifixion”.
20. The Tribunal pointed out to the appellant the absence of any reference to an assault upon him in his otherwise detailed application and put him on notice that this could cause the Tribunal to doubt the truth of the claim. Indeed, it warned him that “it may not believe that he suffered a head trauma in 2005, as claimed”. It described his reply - that he suffered headaches, particularly when the weather changed, poor memory and insomnia - as ‘oblique’.
21. The Tribunal also entertained doubts about the truth of his statement about trying to join the People’s Liberation Army, given that his father, on his account, was in detention at the time and questioned him about it. It also raised concerns about the apparent inconsistency between his holding a PRC passport issued in April 2007 – which would have required a clearance from the PSB – on the one hand and his claims about his father and his own troubled relationship with the PSB on the other.
22. The Tribunal also questioned him about his immediate plans on arrival in this country. He replied that he did not know what to do, had no knowledge of whether “Local Church people” would help him, and did not know where his sisters lived.
23. The Tribunal told him that the medical records did not show anything that might explain his unsatisfactory evidence. He replied that he could not remember things in the past. It is, perhaps, noteworthy, however, that the appellant told the Tribunal that he had only had one year of schooling.
24. XYH gave evidence in person before the Tribunal which in some respects verified the appellant’s claims. She told the Tribunal that he had lived with her and her family, referred to him as her brother, said she loved him very much. She explained that the appellant only referred to his brothers-in-law by that title. She was unable to recall when the appellant had been baptised. The Tribunal noted discrepancies between her evidence and the appellant’s about the role of a man the appellant referred to as a church elder but she as a neighbour. It was concerned that she did not visit the appellant at the Villawood Detention Centre for two weeks after he had been transferred there but she explained that this was due to her own health problems and lack of time. She also informed the Tribunal of the appellant’s activities from 1998. Perhaps the most significant part of her evidence, however, was that she told the Tribunal that after her father was released from detention in 1998 he lived at home. Yet, the appellant had said that he had not seen his father since his first arrest in 1997. The Tribunal put this inconsistency to the appellant and his reply was that he could not remember things from so long ago.
25. LH, who lived in Queensland, and who was said to be another of the appellant’s sisters, gave evidence by telephone. The Tribunal’s reasons contain only a brief account of what she said, which appears to have been generally about the family only and might weakly be seen to have been corroborative of the appellant’s claims that he was a member of her family.
26. The Tribunal wrote to the appellant on 4 December 2009 inviting his comments in writing on potentially adverse information which it described in its reasons as “inconsistent evidence that the appellant had given over time, inconsistent and vague evidence from his witnesses, and other concerns relating to his family membership; religious practice in China; education and employment in China; his passport and other official documents; and his health status” (the s 424A letter).
27. The appellant responded to the matters raised in the s 424A letter in a six-page document.
28. On 21 December 2009 the Tribunal affirmed the decision of the Minister’s delegate. It found he was untruthful in almost every respect – about his family, his education and his employment, his religious contacts and his faith. It observed that the available material did not suggest any medical or “similar” condition or family circumstances that could explain the discrepancies and gaps in this account. It was impressed by the absence in the application of any mention of an arrest in May 2005, despite the considerable detail in it, and what it said appeared to be “a cut and paste” account of the refugee claims made by XYH and LH. On the question of his claim to be a member of a family that had been persecuted, the Tribunal found it unnecessary to determine the exact nature of his relationship with the XYH and LH. It found that he had lived with or near the family, or had visited them regularly, when he was young or had some other association with them. It also said that it was possible he had been informally adopted into the family. But a number of matters raised by the evidence including the conflict between the appellant and XYH about the whereabouts of her father since his release in 2008 led the Tribunal to conclude that the appellant had not been a member of the same household as XYH and her family since at least 1998.
29. The Tribunal’s decision was “a privative clause decision”: Migration Act, s 474. Under the terms of s 476 of the Migration Act the Federal Magistrate could only overturn the Tribunal’s decision if the Tribunal had fallen into jurisdictional error: Plaintiff S157 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476. The Federal Magistrate found no jurisdictional error.

The scope of the appeal

30. The Court’s jurisdiction to hear the appeal derives from s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). That is to say it is an appeal from a decision of the FMC exercising original jurisdiction under a law of the Commonwealth, namely, s 476 of the Migration Act. It is the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution (all matters in which a writ in the nature of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth). A “migration decision” is defined in s 5 of the Migration Act (read with s 474(2) and (3)) to include decisions relating to the grant or refusal of a visa.
31. An appeal of this kind is in the nature of a rehearing: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [14]. That means that this Court is to give the judgment it considers the Federal Magistrate should have given. Nevertheless, error must still be shown: Branir Pty Limited v Owston Nominees Pty Limited (No 2) [2001] FCA 1833; (2001) 117 FCR 424 at [21], [25] per Allsop J.

The grounds of appeal

32. The appellant’s grounds of appeal are couched in terms that might be seen to raise (at least the possibility of) jurisdictional error in the Tribunal’s decision. Without alteration, the notice of appeal is in the following terms:

GROUNDS:

1. His Honour at the Federal Magistrates Court of Australia (“His Honour”) erred in making its finding (from [87] to [98] of his Honour’s reasons for judgement), because the Refugee Review tribunal (“the Tribunal”) failed to comply with its obligation under s.425 of the Migration Act 1958 (“the Act”).
   

Particulars

It is the case that the Tribunal may “prepare” to “accept” I had been informally adopted by my sisters’ family; and that the Tribunal did not accept that I had been a member of that household for the past 10 years. Subject to s.425 of the Act, this is definitely the issue arising in relation to the decision under review.

However, the Tribunal failed to raise or ensure me to understand such a crucial issue in relation to my review even though I was invited to attend the Tribunal hearings. So, I did not have a genuine chance to present arguments relating to the issues arising in relation to the decision under review.

As a matter of fact, owing to being misled by the Tribunal, I thought that the Tribunal had not accepted me to be a member of my sisters’ family from the very beginning; and that I tried my best to submit documentary evidence, such as photos or household registration book (“hukou), to prove that I had been adopted by the family since I had been born only for several days.

If the Tribunal had correctly and clearly raised the issue at the Tribunal hearings, I would have definitely presented my argument against the issue and provided evidence to prove that I was continually the member of my sisters’ family in the past 10 years.

2. His Honour erred in making its finding (at [99] of his Honour’s reasons for judgement). As a matter of fact, summarizing my written evidence in relation to my protection application is definitely not the evidence that the Tribunal has taken an impartial mind to consider all claims made by me.
   
3. His Honour erred in making its finding, (from [101] to [105] of his Honour’s reasons for judgement).
   

Particulars

It is no doubt that the Tribunal did indeed misunderstand my claim or made a mistake in relation to an important finding of fact.

Significantly, it would be impossible for a child who was only 10 years old to get involved in any work. So, the Tribunal’s finding is absolutely incorrect. Further, it would he definitely impossible for a 10-year old child to travel to Quanzhou, where was at least 200 km away from my home; and it would be obviously impossible for a 10-year old child to live independently.

4. His Honour erred in making its finding (from [106] to [113] of his Honour’s reasons for judgement): because it is no doubt that the Tribunal failed to consider my evidence on an unprejudiced view or the Tribunal’s finding has included a reasonable apprehension of bias.
   

Particulars

I firmly and strongly believe that the Tribunal failed to bring an impartial mind to the determination of my case. On the contrary, the Tribunal was of prejudiced views that I went to work at Quanzhou while I was 10 years old; and that I had therefore not been a member of my sisters’ family since then.

5. His Honour erred in making its finding (from [106] to [113] of his Honour’s reasons for judgement); because it is no doubt that the Tribunal failed to consider my evidence properly and fairly.
   
6. In summary, I do not think that my application for judicial review has been considered by the learned Federal Magistrates properly and fairly.
   

The hearing of the appeal

33. The appellant appeared in person at the appeal and participated in the hearing with the assistance of an interpreter.
34. He filed no submissions in support of his appeal and nothing he said advanced his case. His opening remarks made it clear that he was aggrieved solely because he was not believed. This is what he said:

I just feel unfair.
...
I provided photos of the whole family. That was the evidence. The delegate claimed that he or she did not believe was growing up in her family.

[I then asked whether by the delegate he meant the Tribunal]

Yes, RRT. My parents brought me up from a baby, then I was not believed that I was growing up in that family. I feel very unfair.
...
All my words were factual, were the facts.

35. As the Federal Magistrate put it in her judgment, however, credibility findings are matters par excellence for the Tribunal.

Ground 1 - section 425

36. Section 425(1) provides:

Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

37. In SCAR at [37]-[38] the Full Court held that the statutory obligation on the Tribunal was to provide a “real and meaningful” invitation which applies irrespective of whether the Tribunal is aware of the actual circumstances that would defeat it. A failure to provide such an invitation would amount to jurisdictional error because compliance with s 425 is a precondition to the valid exercise of the Tribunal’s jurisdiction. In SCAR the Court appeared to accept that there could be jurisdictional error in circumstances where, although the invitation is given and the appellant attends the hearing, the Tribunal makes a statement before the hearing which misleads the appellant about the issues likely to arise at the hearing. Neither this, nor the other circumstances referred to in SCAR, obtained in the present case.
38. Nor is this a case where anything the Tribunal said during the hearing caused the appellant to mistakenly believe that a state of affairs relating to the way he might choose to conduct his case existed, depriving him of the chance to present evidence or argument on the real issue (contrast Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.
39. As I interpret ground 1 (read with the particulars) the appellant’s complaint is that he was misled by the Tribunal into thinking that the real issue was whether he was a member of his sisters’ family, not whether he had lived with the family continuously, and that both his evidence and argument were therefore directed to the former issue only. He claimed that, as a result, he did not have a genuine chance to present arguments relating to the issues and he was deprived of the opportunity to present evidence. So, the argument goes, he was not given a “real and meaningful” invitation to give evidence and present arguments contrary to s 425.
40. The Federal Magistrate did not deal with this argument, no doubt because the issue was put differently in the FMC. Certainly the particulars to the ground in this Court were not supplied in the application to that court. At [91] her Honour said:

A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant, both at the hearing and in writing following the hearing, the concerns it had about the Applicant’s evidence and that of the sisters in relation to the Applicant’s claim to fear harm by reason of being a member of the sisters’ family. The Tribunal gave careful consideration to the Applicant’s responses both oral and written. Ultimately, the Tribunal was not persuaded by those explanations.

41. That statement does not disclose error and, in my view, there is no justification for the appellant’s contention. Whilst it is no doubt true that the Tribunal was particularly troubled by the question of whether the appellant was actually a member of the same family as XYH and LH and at first raised questions relating to that issue only, there is no room for thinking that it kept to itself a wider concern about the extent of his contact with the family, including whether he had lived in the same house for more than a decade before leaving China.
42. The appellant does not challenge the Tribunal’s account of the proceeding before it. At [81] of its reasons for decision the Tribunal records that it told the appellant in XYH’s presence that there had been significant gaps in his evidence about his family and some discrepancies in their evidence which “could lead [it] to infer that they did not in fact grow up in the same family” and the circumstance that the delay in XYH’s visit to him in Sydney could add to its doubts. The Tribunal questioned XYH about the appellant’s activities from 1998 and her responses are recorded at [82] of the Tribunal’s reasons. She told the Tribunal that her father had lived at home since his release from detention in 1998. At [83] of its reasons the Tribunal recites that it then asked the appellant for comment on the inconsistency between his evidence that he had said he had not seen his father since his first arrest in 1997 and XYH’s evidence that he had lived at home from 1998. It recites that “[t]he applicant evaded this point, initially asking what the Tribunal meant by ‘comment’, and then stating that he could not remember things that happened so long ago.”
43. Not only were these matters squarely raised at the hearing but in the s 424A letter the Tribunal noted (amongst other things):
    • Ms [XYH] told the Tribunal at the hearing that your family attended church at Local Church members’ homes, most often in Dongyanbin, a nearby village. She did not appear to know that the Local Church most often met at your neighbour’s home (although at the hearing you appeared to try to prompt her with the neighbour’s name). You stated that you mainly went to church at your neighbour’s. The information is relevant because it may lead the Tribunal to disbelieve your claims regarding your family and your church attendance.
      
    • She did not appear to know much about your baptism. She said that your youngest sister is in a de facto relationship, and has not had a wedding ceremony, whereas you said that you attended a wedding. The information is relevant because it may add to the Tribunal’s concerns about your family composition, and your credibility.
      
    • She said that, after your father’s detention (1997-1998), he was released and lived at your home. He was subject to monitoring, with people wandering around your home. However, you stated at the hearing that you did not see your father after his arrest in 1997, because he hid in the church and did not return home. You later commented that you could not remember clearly what happened after his release. The information is relevant because you have given sharply divergent views on your father’s whereabouts and your contacts with him from 1998 onwards. This may add to the Tribunal’s concerns about your family composition, and your credibility.
      
    • She confirmed that she did not visit you after your transfer to Villawood IDC because she ‘had no choice’. She referred to health problems and lack of time. The information is relevant because, taken together with the Tribunal’s concerns above, it may lead the Tribunal to infer that she is not your sister (natural or otherwise), but has some more distant connection that is linked with your efforts to come to Australia.
      
44. The letter attached a draft summary of the evidence at both sessions of the hearing which included a summary of the evidence of XYH and the Tribunal’s exchanges with her and the appellant about the differences between their two accounts.
45. The letter also invited the appellant to provide certain information in writing, including any evidence he had with him that supported his refugee claims and his comments “or suggested clarifications” on the Tribunal’s draft summary.
46. The s 424A letter therefore afforded the appellant an opportunity to present further argument and provide evidence touching on the question of whether he was “continually [a] member of [his] sisters’ family in the past 10 years”.
47. What is more, the appellant availed himself of that opportunity. He responded to each of the concerns the Tribunal raised. At paragraphs 27-28 of his letter in reply he wrote (without alteration):

It is the fact that my father was imprisoned by the PSB from the early of 1997 to the end of 1998 for two years; and that he was released and lived at our home; and that he was subject to monitoring, with people wandering around my home. However, I did make a mistake at the hearing before the Tribunal.

It is true that my sister [XYH] was being suffered from serious illnesses. So, she was really unable to visit me while I had transferred to Villawood IDC at early period. But, she has indeed visited me may times (almost every week since the Tribunal’s hearing). It is no doubt that she is my sister; and we have the closest family relationship.

48. As he had been present during XYH’s evidence to the Tribunal, it is scarcely surprising that the Tribunal was not persuaded by this account that the problems it had with the inconsistencies in the evidence were unwarranted.
49. The Tribunal was not required to do any more than it did in order to comply with its obligations under s 425 or to afford the appellant procedural fairness. It is well established that procedural fairness does not require the Tribunal to provide “a running commentary” on its thoughts about the evidence and to take such a course might, in fact, expose it to the risk of appearing to have pre-judged the outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48].
50. In all these circumstances, I am satisfied that her Honour did not fall into error. There is, in fact, much to be said in favour of her remark that the appellant’s complaint about the findings and conclusions of the Tribunal are more in the nature of disagreements with them. I was troubled at one point about whether there may have been a breach of s 425 on a ground that the appellant did not particularise – that is, that the observations the Tribunal made about his capacity to answer questions raised an issue about whether his fitness to participate and his poor level of education might have contributed to a failure to properly understand the proceeding, which, on the authority of SCAR, might give rise to jurisdictional error. But I am satisfied that there is no breach of s 425 on this basis either. The Tribunal was alive to the possibility of an issue relating to fitness. It was that which caused it to inspect his medical records. The medical records provide an insufficient basis for such a conclusion. The Tribunal’s finding that, on the available material, there was no psychiatric condition, psychological disorder or intellectual disability that could be said to have impaired his ability to give evidence was clearly open.
51. As for the appellant’s limited schooling, nothing is raised to suggest that it is or might explain the inconsistent accounts he gave or the serious discrepancies between his accounts and that of XYH, particularly concerning the whereabouts of his ‘father’.
52. While it is important that the Tribunal not rush to conclude that evidence given by an unsophisticated person of limited education in a foreign country brought before it from detention and giving evidence through an interpreter in a strange environment is deliberately untruthful, the Tribunal’s reasons in this case do not suggest it did. It was alive to the appellant’s difficulties and took them into account. After concluding on the material available to it that the appellant was competent to give evidence, the Tribunal observed that his arrest and detention in Australia “may have led to some confusion and mistrust of officials” and:

at least some of the applicant’s presentation may be due to poor education and his youth, as well as nervousness, resentment or pressure.

53. Ground 1 is not made out.

Ground 2 – Alleged error at [99] of the Federal Magistrate’s reasons

54. I will deal with the grievance contained in the second sentence in connection with ground 4, which is where it belongs. As for the alleged error in [99], the Federal Magistrate said this:

Ground 2 – “The Tribunal ignored or failed to consider a claim I made to it”

99. To the extent that ground 2 makes the bare assertion that the Tribunal ignored or failed to consider a claim the Applicant made, there was no claim particularised by the Applicant or his litigation guardian beyond the complaint dealt with above. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised all the written evidence of the Applicant and considered all claims made by the Applicant that reasonably arose on the material and evidence before it.
    
55. There is no error in this observation. The appellant has not identified (and I cannot discern) any claim he made that the Tribunal failed to consider. Ground 2 is not made out.

Ground 3 - Alleged errors in [101]-[105] of the Federal Magistrate’s reasons

56. These alleged errors related to ground 3 of the application before the Federal Magistrate, which was in the following terms:

The Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact.

57. In the paragraphs about which the appellant complains, the Federal Magistrate said:
    101. Ground 3 asserts that the Tribunal misunderstood the Applicant’s claim or made a mistake in relation to an important finding of fact. As stated above, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the Applicant’s claims.
         
    102. Ground 3 asserts that the Tribunal made a mistake in relation to an important finding of fact. Again, I understand that complaint to be that the Tribunal failed to accept that the Applicant is a member of the family of the sisters. However, that assertion misunderstands and misstates the Tribunal’s reasons. As referred to above, the Tribunal accepted that the Applicant may have been informally adopted by the sisters’ family. However, the Tribunal found that the Applicant had not been a member of that household for, at least, the past 10 years and that the Applicant did not grow up in the family, in that he worked in Quanzhou since age 10. The relevant past persecution is alleged to have taken place since the Applicant turned 10 years old.
         
    103. The Tribunal also rejected the Applicant’s claim of ever having been arrested or detained or fingerprinted in May 2005 or rejected by the army on security grounds when he turned 18 years old. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
         
    104. There is no other claim or fact that either the Applicant or his litigation guardian asserts that the Tribunal misunderstood or mistook and none is apparent on the face of the decision record.
         
    105. Accordingly, ground 3 is not made out.
         
58. There is nothing exceptional about these reasons. No jurisdictional error in the Tribunal’s findings is identified.
59. This ground of appeal is not made out either.

Grounds 4, 5 and 6– Bias and failure to consider evidence properly and fairly

60. These grounds rely on the same matters, so it is convenient for them to be considered together. None is substantiated. Moreover, when I invited the appellant to explain why he thought the Tribunal was biased against him, he was unable to do so.
61. It is well established that bias – whether actual or apprehended – will give rise to jurisdictional error: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (Ex parte H) at [5] per Gleeson CJ, Gaudron and Gummow JJ, citing Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507. But, as the Full Court observed in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [18], rarely will bias be made out on a reading of a decision maker’s reasons:

Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased.

62. There is nothing in this case that takes it out of the ordinary and no conduct to which the appellant has pointed that would indicate bias, whether by pre-judgment or otherwise, nor a reasonable apprehension that the Tribunal would not bring an impartial mind to the adjudication of the issues: As the High Court explained in Ex parte H at [30]:

Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

63. The Federal Magistrate correctly drew attention to the absence of evidence of actual bias. She noted that the appellant was given the opportunity to file the transcript or a recording of the hearing with the Court. His failure to do so entitled her to accept, as she did, the Tribunal’s account of the evidence before it and what occurred during the hearings. Her Honour referred to some of the leading authorities. As she rightly observed at [107]:

the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

64. This appeared to be the gravamen of the appellant’s complaint. The particulars to ground 4 referred to the Tribunal’s ‘view’ that the appellant went to work at Quanzhou when he was 10 years old. In circumstances in which the appellant, himself, said that he worked from the age of 10 to earn money for his family (see [57] of the Tribunal’s reasons), the Tribunal can scarcely be said to be biased in using his statement to support its finding that he had not lived with this family for the last 10 years, notwithstanding that the appellant might later have withdrawn the statement. At most this might be a factual error, but it does not establish bias and it is not a matter going to jurisdiction.
65. These grounds of appeal also fail.

Conclusion

66. There is no appealable error in the Federal Magistrate’s decision. The appeal must therefore be dismissed.

Orders

67. I order:

(1) The appeal is dismissed.

(2) The appellant pay the first respondent’s costs.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated: 9 July 2010