FEDERAL COURT OF AUSTRALIA SZJXH v Minister for Immigration & Citizenship [2007] FCA 1691 MIGRATION – consideration of grounds of appeal from a decision of the Federal Magistrates Court raising questions of contended bias, failure to have regard by the Refugee Review Tribunal to s 91R of the Migration Act 1958 (Cth) and a failure on the part of the Tribunal to have regard to s 424A(1) of the Migration Act 1958 (Cth) Decision Appeal dismissed with costs Migration Act 1958 (Cth) Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Johnson v Johnson (2000) 201 CLR 488 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZJXH v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1158 of 2007 GREENWOOD J 6 november 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD1158 of 2007 BETWEEN: SZJXH Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent AND REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE OF ORDER: 6 NOVEMBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is ordered to pay the costs of the respondents of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NSD1158 of 2007 BETWEEN: SZJXH Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent AND REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE: 6 NOVEMBER 2007 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT 1 By notice of appeal filed on 22 June 2007 the appellant appeals from the whole of the judgment of Federal Magistrate Nicholls handed down on 5 June 2007 by which his Honour dismissed an amended application for review to that Court filed on 19 April 2007 by which the appellant had sought review of the decision of the Refugee Review Tribunal handed down on 23 November 2006 affirming the decision of the delegate of the Minister for Immigration and Citizenship refusing the grant of a protection visa to the appellant. 2 The grounds upon which the appellant appeals from the decision of the Federal Magistrates Court are simply stated in these terms. First, 'The Tribunal failed to consider my claims for my application for a protection visa in accordance with s 91R of the Migration Act 1958'. [(Cth) (as amended)]. Secondly, 'The Tribunal failed to carry out its statutory duty'. Thirdly,'The Tribunal failed to notify me of the reason or part of the reason for affirming the decision'; and, fourthly, 'The Tribunal failed to consider my application according to section 424A of the Migration Act'. 3 Those grounds assert, in effect, that Federal Magistrate Nicholls fell into error by failing to find error in the reasoning of the Tribunal. The grounds of appeal before this Court reflect the grounds upon which an application for review was sought before the Federal Magistrates Court and in those grounds the then applicant contended that the Tribunal evidenced bias against him; did not consider his application in accordance with s 91R of the Migration Act; and that the Tribunal failed to consider the then applicant's application according to s 424A of the Migration Act. Although the grounds of appeal before this Court do not reflect any particularity, the grounds of the application before the Federal Magistrates Court did add some additional matters although they did not, in truth, go beyond the statement of each ground itself. 4 In the proceeding before this Court the appellant is self represented but is assisted by an interpreter in providing any submissions orally that the appellant might wish to make. The appellant this morning contends that the Tribunal failed to decide the matter before it according to law on the footing that the claims of the appellant were considered on the basis of assumptions. Secondly, the appellant says that the Tribunal evidenced bias against him. Thirdly, the appellant says that to the extent that the Tribunal concluded that there were inconsistencies in evidence given by the appellant to the Tribunal, those inconsistencies are to be explained on the footing that the events occurred some real time ago. 5 Prior to the Tribunal's decision which is the subject of this appeal, the Tribunal had handed down a decision on 4 August 2005 which was quashed by consent by an order of the Federal Magistrates Court on 31 May 2006 and remitted for reconsideration. The Tribunal was reconstituted and held a further hearing on 31 August 2006 at which the appellant gave oral evidence. 6 The background facts reflected in the reasons of the Tribunal and consistent with documents lodged by the then applicant and consistent with evidence the subject of examination by the Tribunal is this. According to the application for the protection visa, the applicant was a 30 year old male from Fujian in the People's Republic of China. According to the then applicant's statement, he was in charge of the processing line at a factory in China which processed eels for the Japanese market which required strict adherence to quality standards. 7 The appellant said before the Tribunal that to maintain profits at the plant, the plant was processing eels with a high content of medical remnants and cheap raw materials. The processing plant was not compliant with standards and according to the applicant he insisted that the equipment be upgraded to required standards. The applicant's suggestion was disregarded and he had a serious disagreement with the management of the company over that issue. 8 Apparently at the end of 2003 and in early 2004, a Japanese client carried out random tests which revealed a high content of identified bacteria. The Health Department then undertook an investigation. The applicant contended that he told the truth to government officials but one month later he was taken from the workplace and questioned about any part he may have had in putting unsafe ingredients into food. The applicant contended that he had advised the previous investigating officers of what had happened; that he was shocked; and that the police advised him there was no record of this. The applicant contended that the manager of the factory had bribed the government officers and that he had been set up about these matters. The applicant contended that he was detained at the police station and his family expended a lot of money to secure his release. 9 The applicant also contended that after he informed directors of the company that the plant was processing contaminated food, police came to the factory, investigated him and he was detained. The applicant contended that the director of the factory bribed government officers to 'set him up on criminal charges' and 'he ended up in the police station'. The applicant contended that his wife spent a lot of money to obtain his release. The applicant also contended that he lost his job and his family lost its income and could not continue to lead a normal life. 10 The Tribunal then proceeded to consider evidence in relation to those factual contentions and examined the evidence which was given by the appellant before the Tribunal on 14 July 2005. That evidence is recited in some detail at AB115 and AB116. The Tribunal further then reviewed the evidence before the Tribunal on 31 August 2006 and that evidence is considered and recited at AB117 to AB123. 11 The Tribunal then embarked upon an analysis of all of the evidence including the oral evidence and sought to make an assessment of the strengths and weaknesses of the evidence with a view to reaching conclusions. The Tribunal concluded in these terms: In dealing with this application, the Tribunal has formed the view that the applicant lacks credibility and his material claims cannot be accepted. His evidence before the present Tribunal was internally inconsistent and unconvincing and, furthermore, it was inconsistent in respect to certain events with his evidence before the first Tribunal. (AB124). 12 The Tribunal then began to examine some conflicts in the evidence with a view to illustrating the basis for that conclusion. Some of the inconsistencies are these. The Tribunal noted that before the then Tribunal the appellant said early in his evidence that he lived at one address only in China but later in evidence in the hearing the appellant gave evidence that he had gone to some other places and searched for means to go abroad. 13 The appellant gave evidence before the Tribunal that he was detained from May until November 2004 and that he was detained at the Fuqing Detention Centre in Fuqing City but he was unable to say where that is located. The appellant told the Tribunal that before he was formally sentenced his family used connections to pay money and bail him out but he was unable to provide details of how this was done or details of the person to whom money was paid. 14 Before the previous Tribunal the appellant had said that he was arrested in May and detained and that he was held for approximately four months and released in mid-September 2004. This was inconsistent with the earlier period (May to November 2004) given in evidence before the second Tribunal. The Tribunal noted that before the previous Tribunal, the appellant said that he visited the PRC 'Products Examination Department' around October 2004 and at that time he made certain accusations and statements as a result of which he had been branded as anti-government. However, according to his evidence before the Tribunal, at that time in mid-October 2004 the appellant was still in detention. 15 The Tribunal noted that the appellant's evidence before the Tribunal on the details of his detention, procedures and formalities during that detention (particularly in relation to any charges laid by authorities), led the Tribunal to conclude that the applicant was not speaking from his personal experience and was not relaying events actually experienced by him. The Tribunal then noted: This, in addition to the internal inconsistencies and significant inconsistencies with his evidence before the first Tribunal led this Tribunal to conclude that his evidence is neither truthful nor credible. 16 The Tribunal further concluded that it did not accept that the applicant, as he then was, was detained between May and November 2004 because of the substandard processing practices at the workplace as he had claimed. The Tribunal did not accept that upon his release from detention he made anti-government statements. The Tribunal found that his departure from China as described by him to the Tribunal was routine and uneventful. 17 The Tribunal concluded that in summary the Tribunal found no credible evidence that the applicant had ever suffered harm let alone serious harm in China for reasons of an anti‑government opinion attributed to him or, indeed, for his political opinion actual or imputed. Accordingly, against the background of that analysis of the evidence the Tribunal reached its findings of fact and having reached those findings, concluded that it could not be satisfied that the appellant had demonstrated a well-founded fear of persecution for a Convention reason. 18 Before the Federal Magistrates Court the appellant contended, as he does before this Court, that the decision of the Tribunal was reached in circumstances of evident bias; in circumstances reflecting a failure to comply with obligations cast upon the respondent by s 424A(1) of the Migration Act and by reason of the failure to discharge statutory duties in connection with s 91R of the Migration Act. 19 No particulars were given of those matters except to the extent of a restatement of legal conclusions supporting those grounds rather than factual or evidential content of the grounds. In relation to the matter of bias, Federal Magistrate Nicholls dealt with that matter at paragraphs [11] and [12]. I will not quote those paragraphs. It is sufficient to observe that an allegation of bias must establish a threshold reflected in terms of the observations of French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 in that it must reflect a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made. That formulation of the test was adopted by the Full Court of this Court in Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 per Spender, Cooper and Nicholson JJ and the adoption of that view was affirmed by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 particularly at [72] where Gleeson CJ and Gummow J said the test adopted by the Full Court was orthodoxy and accorded with the decisions of the High Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 91 and Johnson v Johnson (2000) 201 CLR 488. 20 Federal Magistrate Nicholls therefore in applying the correct standard was not satisfied that there was demonstrated actual or apprehended bias. 21 In relation to the contentions based upon s 91R of the Migration Act, his Honour dismissed this ground on the basis again that no particularity had been provided to support the complaint but, in any event, having regard to the analysis conducted by the Tribunal, it was clear that the Tribunal actually turned its mind to the provision by finding that there was no credible evidence that the appellant had ever suffered harm. That section has already been quoted by me and Federal Magistrate Nicholls dealt with those matters at paragraphs [16] to [19] of the reasons. I do not propose to repeat those paragraphs in these reasons. It is sufficient to say that there is no evident error to my mind in that analysis. 22 Federal Magistrate Nicholls also dealt with the contentions based on s 424A of the Migration Act and found that there was no failure to comply with obligations arising under that section on the part of the Tribunal and that the Tribunal had relied wholly on material and evidence that had been provided to the Tribunal by the appellant including oral evidence given by him at the two Tribunal hearings. That is a matter to which I will return shortly. 23 In the appeal before this Court the appellant raises the same contentions. As to the question of bias, I have already recited the legal threshold tests for establishing the contention of bias. There was no particularity given in support of the bias contention. There is no suggestion in the material that the Tribunal did anything other than turn its mind to the evidence before it; conduct an analysis of that evidence with a view to reaching a conclusion as to its weight and relevance; and reach conclusions that by reason of inconsistencies in the evidence, the Tribunal could not be satisfied that the matters had been established. In fact, in this matter, the conflicts of evidence formed a basis upon which the Tribunal could not be satisfied of the truthfulness of the evidence given by the appellant. Those conclusions were open on the face of the material and the reasons of the Tribunal are comprehensive. Those reasons analyse the foundation for the conclusions in terms of a proper process of reasoning. 24 There is no evidence put before this Court that supports the notion that there was an error on the part of Federal Magistrate Nicholls in failing to find that the Tribunal had reached conclusions in the way it did. In other words, bias was not made out. Similarly, there is no material which supports any conclusion that there was any error on the part of Federal Magistrate Nicholls in relation to the s 91R ground of appeal. 25 One question which has arisen for particular assessment is the question of whether it was appropriate for the Tribunal in evaluating the evidence of the appellant to have regard to evidence given to the Tribunal constituted in its earlier form. It is clear however, that information given to the earlier Tribunal is information given by the appellant as part of the 'application' and there is no failure to comply with s 424A(1) having regard to the exception contained in s 424A(3)(b) of the Migration Act. I regard the legitimacy of recourse by the Tribunal to the earlier evidence given by the appellant to an earlier Tribunal, as an entirely settled matter. Note the observations in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [39]. 26 In addition, the Tribunal's appraisal of the appellant's testimony and its assessment of conflicts of evidence and conclusions reached in relation to credibility do not constitute 'information' for the purposes of s 424A(1) of the Migration Act (note SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, [14] – [21]; 81 ALJR 1190 at 1195 and 1196, particularly [18], per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). 27 Having regard to all of these matters, I am not satisfied that any error on the part of Federal Magistrate Nicholls has been demonstrated. It naturally follows therefore that the appeal must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 6 November 2007 Solicitor for the Appellant Appellant – Self Represented Counsel for the First Respondent: Ms R A Pepper and Mr J Spinak Solicitor for the First Respondent: Blake Dawson Waldron Solicitors Date of Hearing: 6 November 2007 Date of Judgment: 6 November 2007