SZMNX v Minister for Immigration & Citizenship [2011] FCA 6 (11 January 2011)

Last Updated: 12 January 2011

FEDERAL COURT OF AUSTRALIA

SZMNX v Minister for Immigration & Citizenship [2011] FCA 6

Citation:		SZMNX v Minister for Immigration & Citizenship [2011] FCA 6
Appeal from:		SZMNX v Minister for Immigration & Citizenship [2010] FMCA 443
Parties:		SZMNX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 801 of 2010
Judge:		KATZMANN J
Date of judgment:		11 January 2011
Legislation:		Migration Act 1958 (Cth) ss 36(2), 474, 422B(1)
Cases cited:		Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 NAHI v Minister for Immigration and Citizenship [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 SZDGC v Minister for Immigration [2008] FCA 1638 SZMNX v Minister for Immigration [2010] FMCA 443 SZMSJ v Minister for Immigration [2009] FMCA 102 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Date of hearing:	23 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	45
Counsel for the Appellant:	The appellant appeared in person.

Counsel for the Respondents:	Ms E Warner-Knight
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 801 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	KATZMANN J
DATE OF ORDER:	11 JANUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant is to 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 801 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	KATZMANN J
DATE:	11 JANUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The appellant is a native of Fujian province in China and a Chinese national. He entered Australia on 27 October 2007 on a visitor’s visa ostensibly to visit his son who had been studying here since 2007. He claims that for years he was persecuted in China and seeks the protection of the Australian Government.
2. The appellant’s claim for refugee status has a long and unhappy history. With the assistance of a migration agent he lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”) on 30 November 2007, just over a month after he arrived in Australia. On 28 February 2008 a delegate of the Minister refused his application, notifying the appellant the following day. On 20 March 2008 the appellant applied to the second respondent (“the Tribunal”) for a review of that decision and on 24 June 2008, after a hearing on 24 April, the Tribunal affirmed the decision of the delegate, although it appears that decision was delivered on 3 July 2008. On 27 January 2009 the Federal Magistrates Court, by consent, ordered that the Tribunal’s decision be quashed and remitted the matter to the Tribunal to be determined according to law. On 15 April 2009 a differently constituted tribunal affirmed the delegate’s decision after a further hearing but, once again, on 19 October 2009 the Federal Magistrates Court, by consent, ordered that the Tribunal’s decision be quashed and remitted the matter again to the Tribunal to be determined according to law. In each case the Minister conceded that the decisions of the respective tribunals had been affected by jurisdictional error, in the first instance when it failed to consider whether China’s one child policy, being a law of general application, had a discriminatory impact on the applicant, and in the second, by rejecting corroborative documentary evidence without regard to the principles discussed in SZDGC v Minister for Immigration [2008] FCA 1638 and SZMSJ v Minister for Immigration [2009] FMCA 102.
3. On 9 February 2010, after a third hearing, a third tribunal affirmed the delegate’s decision and, this time, his application for judicial review to the Federal Magistrate’s Court was unsuccessful. See SZMNX v Minister for Immigration [2010] FMCA 443.
4. This is an appeal from the judgment of the Federal Magistrate delivered on 16 June 2010.
5. The notice of appeal raises three grounds. They are expressed in the following way (without alteration):

(1) There exists procedural unfairness.

(2) There exists wrong application of law.

(3) My case was not treated fairly.

6. No particulars were provided to explain the grounds and no written submissions were offered in support of them.

The appellant’s claim

7. In a statement attached to his original application the appellant claimed that on 27 September 1993 (when his son was three years old) he found an abandoned baby girl near the local administrative office building and took her home. He said he had reported the matter to the local authorities, including the police, who told him that he should put the baby back where he had found her. He said he was a Christian and could not leave her to die. As the baby had a fever he took her to hospital and spent much money on her treatment. No government authority would take responsibility for her, so, he explained, he took her home. He said that, as a result, “the local government gave my family a series of mistreatment including financial penalty, political persecution and personal humiliation”. Since then, he claimed that all kinds of misfortune befell both his immediate family and his parents. A penalty was imposed for breach of the “Population and Family Planning Policy” and, because they were unable to afford to pay the penalty on time, he claimed his mother had been arrested and kept in detention for 16 days, and died two years later. Further, he said, the family was required to pay a fine every year until the girl turned 18. He claimed that “the door plank and bamboo bed” belonging to his late father had been removed from the house and burned in front of the whole village when the fine was not paid and he became seriously ill as a result, dying in 2003. After that, he said, the local authority sent the penalty notices to him, and demanded he “do vasoligation” (that is, have a vasectomy) and his wife have an IUD inserted.
8. In 2003 he said he was punished by having his salary stopped and had to leave his village to make a living. He found other work, but, in 2007, he was dismissed from his post in the village as local security officer. He claimed he was forced to hide from the local authorities, separate from his family, and send the girl to a private boarding school (because the local authorities refused to register her residence, so she was unable to attend a public school). He said he and his wife were not allowed to adopt her. He sent his son to Australia to study. He also said that the local authority frequently attended his home and were trying to force him to undergo vasoligation. Consequently, he decided to come to Australia.
9. He supported his application with a number of documents. They included a copy of his household register, official receipts for the payment of a “family planning penalty” in 2003-7 inclusive, notices of breaches of “regulations of Population & Family Planning Policy”, documents bearing 2007 dates concerning dismissal from employment, demands for further penalties, demands that he have vasoligation operations and confirmation of the attendance of a girl by the name he gave the abandoned girl at a high school and primary school.

Eligibility for a protection visa

10. To qualify for a protection visa the appellant had to show that he was a refugee within the meaning of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (Migration Act 1958 (Cth) (“the Act”), s 36(2)) and could satisfy the further requirements of s 91R of the Act. In short, he had to show that he had a well-founded fear of persecution for one of the Convention grounds, where the reason or reasons for the fear of persecution is or are the essential or significant reasons, the persecution would involve serious harm to him, and the persecutory conduct was both systematic and discriminatory. As the High Court stressed in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, no fear can be well-founded unless the evidence shows there is a real ground for believing that the applicant is at risk of persecution, although the ground may exist even if the chances that the risk will eventuate are substantially less than even.

The Tribunal hearing

11. The appellant appeared without representation before the Tribunal on 18 December 2009 but received the assistance of a Mandarin interpreter.
12. The Tribunal began its Statement of Decision and Reasons with a history of the proceeding. Its conclusion was encapsulated in the following passage at the end of its discussion of the history:

I note for the sake of completeness that, for the reasons given below, having regard to the problems with the documents which the applicant has produced in corroboration of his claims I do not accept that these documents outweigh the other problems which I have with the applicant’s credibility and I do not regard the applicant as a witness of truth. Since I do not accept the factual premise for the applicant’s claims I do not accept that the Family Planning Regulations in China had a discriminatory impact on him.

13. The Tribunal reviewed the appellant’s original application and the accompanying statement that contained his claims and the account given to the Minister’s delegate and to the earlier tribunals.
14. The Tribunal member questioned the appellant. He asked him whether he was a Falun Gong practitioner, noting that he had filed an affidavit in the Federal Magistrate’s Court in May 2009 to that effect. He denied being a Falun Gong practitioner and claimed that he had signed the affidavit without having had it translated to him – despite a certificate to that effect on the affidavit. He had said in the statement that accompanied his original application that he was a Christian but told the Tribunal that he rarely went to church and, for that reason, had little understanding of Christianity.
15. The Tribunal member said he found it difficult to believe that he had been told by the authorities to return the baby to the place where he had found her as abandoning a baby was a criminal offence in China (a fact apparently gleaned from secondary material to which the Tribunal referred in its reasons) and there were well-understood procedures for dealing with such babies. The appellant told him that the household registration bureau had an orphanage but had refused to take the baby. The Tribunal member said he found that difficult to believe. The appellant replied that the orphanages did not accept children without “clear birth certificates”. The Tribunal member put to the appellant that that was untrue and that he was “sure the applicant knew this”. The appellant explained that in China a policy of birth control is carried out and families preferred boys to girls, so they always dumped baby girls. He also said that, if the orphanage accepted the baby girls, they would not be able to look after them all and that was why orphanages did not accept baby girls without clear birth certificates. The Tribunal challenged the appellant about his explanation. The appellant said he could not adopt the child as he and his wife already had a child of their own. The Tribunal put to the appellant that that was not true either. Rather, it put to him, you had to pay a fine for the ‘out of plan birth’ but could then register the adoption, which would then become legal (again, information apparently obtained from secondary material referred to in the reasons). The Tribunal also told him it could not understand why the notices requiring payment of fines were sent to his father, rather than him, when he had said that everyone in the village had known that he had taken the baby home. He said he understood the problem the Tribunal had with his evidence. The Tribunal expressed concerns with various other aspects of his story and was plainly unpersuaded by any of his attempts to alleviate them.
16. In its reasons the Tribunal also noted apparently contradictory accounts from the appellant about how he came into possession of the notice he had produced dismissing him from his post as the head of local security, which was not addressed to him. It also told the appellant that it was troubled by the fact that none of the notices about the vasoligation was addressed to him and several of them contained detailed instructions about who was to be given copies and none of them stated the notice was to be copied to him. The Tribunal informed the appellant that it had copies of the relevant Fujian Birth Planning Regulations and none of them corresponded “in any way” to the extracts he had produced. The reasons record that “[t]he appellant said he understood” and said “some of the documents were only the documents of the Family Planning Office but some of the documents were written in very small characters and were internal documents only distributed above the municipal area”. The Tribunal noted that the Australian Department of Foreign Affairs and Trade had advised that “any official document could be either bought or forged in China, that irregular or improper issue of documentation was widespread and it would suggest that therefore little weight could be put on any official Chinese document” and he might give no weight to the documents produced. The Tribunal also put to the appellant that there was nothing in the Regulations or other secondary material it had to support the appellant’s claim that a fee of four times the average annual income was imposed annually until the child turned 18 and nothing that authorised coercive measures if people did not undergo sterilisation. He said he understood this, too, but queried who would wish to undergo sterilisation unless he was forced or the child was given household registration. He said the policy was even tighter with regard to adopted children. The Tribunal put to the appellant that information before it indicated that penalties were negotiated with “the local cadres” and adoptive parents seldom paid the amount originally requested. It told him that “all of this made it very difficult to accept that he was telling the truth about what had happened when he had found the abandoned girl”.
17. The Tribunal found that there were a number of inconsistencies in the appellant’s accounts and between the appellant’s accounts and the country information, which it regarded as authoritative, about practices in relation to receiving abandoned children in orphanages, the Fujian Province Family Planning Regulations, and the fines which were likely to have been imposed in relation to an adoption, whether legal or illegal. Based on the information it had before it, which it canvassed with the appellant at the hearing, the Tribunal did not accept (as the member said the appellant had suggested) that the authorities in China would allow abandoned children to die in the street. The Tribunal also considered it implausible that penalty notices were being sent to the appellant’s father when, on his account, officials always knew that he, and not his father, had “adopted” the girl. The Tribunal accepted that parents of children born in violation of the Family Planning Regulations may be required to undergo sterilisation as part of the process of negotiation leading to registration, but observed that the Regulations do not authorise forced sterilisation and concluded that the purported extracts from the Regulation the appellant produced were not genuine. For these reasons, and having regard to the advice of the Australian Department of Foreign Affairs and Trade in relation to official Chinese documents, the Tribunal did not accept that the documents which the appellant produced to the Department in purported corroboration of his claims outweighed the other problems it had with his credibility.
18. The Tribunal thus did not accept that the appellant found an abandoned girl in September 1993, or that when he went to the authorities in China he was told to abandon the girl where he had found her, or that after he took the girl in he was forced to pay fines annually until the girl turned 18, or that he was forced to undergo a sterilisation procedure. Since it did not accept the factual premise on which the appellant’s claims were based, it did not accept that, if he were to return to China now or in the reasonably foreseeable future, there would be a real chance that he would be required to pay any penalties under the Family Planning Regulations, or be persecuted for a Convention reason – whether it be characterised as political or religious or otherwise – as a result.
19. The Tribunal was therefore not satisfied the appellant was a person to whom Australia has protection obligations under the Refugees Convention, and affirmed the decision under review.

The application to the Federal Magistrates Court

20. By application filed in the Federal Magistrates Court of Australia on 9 March 2010 the appellant sought judicial review of the Tribunal’s decision. Section 474 of the Act limited the scope of that review. The only question for the Federal Magistrate was whether the decision of the Tribunal was affected by jurisdictional error. See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2.
21. The grounds upon which the application was made were put as follows (without alteration):

(1) I would be prosecuted if I return to China just because I got two children.
(2) During the hearing the Tribunal member told me the hearing was informal, thus, I thought I have another formal hearing hold by the Tribunal.
(3) The Tribunal failed to consider the whole of my case.

22. The appellant supported his application with an affidavit attaching transcript of the Tribunal hearing, two documents in Chinese and a letter addressed “Dear Judge of Federal Court”, apparently a translation of one of the documents in Chinese, which the Federal Magistrate received as a submission, in effect particularising his claims. That letter purported to set out in detail the “unfair treatments” he claimed to have received in the Tribunal.
23. The Federal Magistrate noted that no particular part of the transcript was drawn to his attention and that, on his reading of it, it did not appear to support any contention of jurisdictional error. He said the handwritten Chinese document and its relevance were obscure.
24. His Honour also noted that, despite the terms of ground two of the application, the appellant “clearly confirmed” that in fact he did not think he would have another formal hearing after the hearing on 18 December 2009. In any event, his Honour said there was no evidence to indicate that the Tribunal told either him or his agent anything which might have suggested this.
25. His Honour considered that the other two grounds of the application appeared to invite the Court to decide the appellant’s refugee claims for itself, or “contain an unparticularised contention of a failure to consider evidence”.
26. The Federal Magistrate found that the Tribunal addressed all the appellant’s claims and evidence which had been presented at all stages of the proceedings before the Department and the Tribunal. He considered that the proposition that the Tribunal “failed to consider the whole of my case” was only a criticism of the reasoning adopted by the Tribunal, when rejecting all his claims on the basis that it was not satisfied as to the “factual premise on which the applicant’s claims are based”. But his Honour held that the reasoning was open to the Tribunal, both as a matter of law and on the evidence before the Tribunal.
27. His Honour also observed that the Tribunal was entitled to conduct its own general researches, to assess the appellant’s evidence against that information, and to use it as a basis for rejecting the credibility of his claims to have been persecuted. Similarly, his Honour held that there was no error in the Tribunal’s treatment of the documents the appellant submitted in order to corroborate his claims.
28. The Federal Magistrate was thus unable to identify any jurisdictional error affecting the Tribunal’s decision, and dismissed the application for review.
29. The question here is whether the Federal Magistrate erred in failing to discern jurisdictional error on the part of the Tribunal. In my view, he did not.

Procedural fairness

30. Neither this nor the second ground was pleaded or argued in the Federal Magistrates Court. Leave is therefore required and leave will only be granted where “it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]. In that case the Court observed (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

31. So the first question is whether leave should be granted. The anterior questions are:
    • Does the point clearly have merit?
    • Is there no real prejudice to the respondent in permitting it to be agitated?
    • Has an adequate explanation for the failure to take the point been given?
32. The first ground was not particularised. No affidavit was filed in support. Nor were submissions filed. Thus, no explanation has been advanced for the failure to take the point below. The Minister does not submit he is prejudiced but argued that the point has no merit. Nothing the appellant said on the hearing demonstrates otherwise.

THE APPELLANT: I have two points I would like to raise here.
HER HONOUR: Yes. What are they?
THE APPELLANT: The first is, I wonder if the law should be applied based on the actual facts on the fair basis. Because I don’t have a lawyer, free of charge, available to me, so I don’t know about this.
...
THE APPELLANT: Secondly, I just wonder if the RRT would typically rely on their internal information to judge that the documents I provided were false, does that mean that my case, even though I had provided genuine documents to them, but my case would still be unfairly judged, based on their own observation of the documents.
...
THE APPELLANT: What I was told at the RRT hearing was that DFAT told RRT that a lot of documents provided – produced from China were false. I’ve got RRT recording as evidence of this.
...
THE APPELLANT: If RRT only rely on the DFATs information that’s the documents provided – the documents in China were false then – if the documents provided from China were false and also I’m not able to provide information in relation to other countries, does that mean that my – the unfair treatment of to my case would never ever be corrected?
HER HONOUR: What is the unfair treatment you say you received?
THE APPELLANT: I’m happy that I’ve adopted this girl for 18 years. During the process she has grown up healthily, however, I was really fearful and I feel I was wronged. Number 1 is that I was de-positioned from my post. Secondly, I was forced to have the sterilisation which caused a lot of fear in myself.

33. As the Federal Magistrate said, however, the Tribunal was entitled to assess the appellant’s evidence against the information it gleaned from its own researches and to use it as a basis to reject his claims. In NAHI v Minister for Immigration and Citizenship [2004] FCAFC 10 at [11] the Full Court explained:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

34. Section 422B(1) of the Act provides that Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. The applicant does not point to any breach of the provisions of Division 4. Neither is there any evidence of actual or apprehended bias on the part of the Tribunal or, for that matter, the Federal Magistrate. I address the question of bias in more detail in my consideration of ground 3. Accordingly, leave should not be given to raise the argument at this stage.

Wrong application of law

35. The same problems beset this ground.
36. At the hearing the appellant was given ample opportunity to expand upon the notice of appeal. Nothing he said, however, revealed any jurisdictional error. In fact, what he said merely reiterated his oral submission about the first ground. In summary, his case was that, because the Tribunal did not believe him it must have wrongly applied the law. It was obvious he said, that “there were some legal mistakes”. That, of course, does not follow. He indicated he was shocked by the outcome. Although on one view this is difficult to believe because the Tribunal flagged its numerous concerns about its evidence with him, it is explicable in the light of the fact that he was accepted by the first tribunal as a witness of truth and, although the second tribunal found otherwise, it accepted that he had principal care of the child, in breach of China’s one child policy and that he had been subjected to some adverse consequences as a result of this.
37. In any case, he was unable to point to any specific legal error, let alone one going to jurisdiction.

Unfair treatment of the case

38. Again, without particulars or written submissions it was difficult to understand what the appellant meant to convey by this ground. The Minister inferred that he was raising the same ground upon which he relied before the Federal Magistrate, which his Honour found was no more than a criticism of the Tribunal’s reasoning as the Tribunal had in fact addressed all the appellant’s claims.. At the hearing he made his position clear.

THE APPELLANT: The point I’d like to raise is that if they feel that the documents provided from China were genuine, me, as a victim in China, I simply was not able to provide any other material coming from any other countries.
HER HONOUR: I don’t understand what you mean by that [SZMNX]. In particular I don’t understand why you would think that documents provided from other countries would have any bearing on your case.
THE APPELLANT: That’s exactly what I mean. I mean, that in that case, even my case was wrongly treated, that my case would never have – would never ever have an opportunity to be rightly corrected.
HER HONOUR: So you say essentially that because of the scepticism of the tribunal about the authenticity of apparently official documents from China, you were never going to get a fair hearing because the documents that you said were official were never going to be accepted as official?
THE APPELLANT: Yes.

39. This in essence is a claim of bias in the form of prejudgment. Quite apart from the difficulty (to which I have already referred) the appellant has in raising it on appeal when it was not agitated before the Federal Magistrate, there is no basis for it. As the Full Court said in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 (“SZNPG”) at [18]:

It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Afffairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44]. The same is the case in relation to apprehended bias. 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.

40. There is nothing distinctive about this case. The country information entitled the Tribunal to be sceptical about the authenticity of the documents but it did not discount the documents merely on the basis of country information about the high incidence of document fraud. In the case of the purported extracts from the Fujian Province Population and Family Planning Regulation that the appellant produced, the Tribunal observed that they did not “correspond in any way” to the copies the Tribunal had of the Regulations in force at the time. Importantly, in the Regulations in the Tribunal’s possession there was nothing to indicate that a fee of four times the average annual income was imposed annually until the child turned 18 or which authorised coercive measures if people did not undergo sterilisation. If the Tribunal was not satisfied that the extracts from the Regulation were genuine, it is little wonder it did not accept the authenticity of the other documents the appellant produced. These documents included notices said to concern him but not addressed to him and where there was nothing on the face of them to show that they related to him, but which he claimed were given to his neighbour, though intended for him. They also included notices that apparently related to him but which were not addressed to him and where he had no documents indicating that they had been sent to him.
41. Whether the Tribunal was right to reach this conclusion is another matter, but it was a conclusion it was authorised to reach on the material before it.
42. In the circumstances, the Tribunal was entitled not to accept “that the documents the applicant produced to the Department in purported corroboration of his claims outweigh the other problems it had with his credibility”. Certainly, that decision does not disclose any actual or apprehended bias or other jurisdictional error. Cf. SZNPG at [19]-[26].
43. The Tribunal had a statutory duty to put its concerns to him. Moreover, as the High Court observed in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”) at [30]; [2001] HCA 28:

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.

44. In Ex parte H the High Court sounded a note of caution requiring the Tribunal to be alert that “vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated”. That could, as it did in Ex parte H, give rise to a reasonable apprehension that the Tribunal might have had a preconceived view from which it might not budge, despite what the appellant might say to it. However, the appellant did not point to anything in the conduct of this case that could give rise to such an apprehension.

Conclusion

45. For the above reasons the appeal should be dismissed with costs.
    

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated: 11 January 2011