He v Minister for Immigration & Multicultural Affairs [2001] FCA 1704

FEDERAL COURT OF AUSTRALIA

He v Minister for Immigration & Multicultural Affairs [2001] FCA 1704

XI XI ZHU HE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 2110 of 2001 KATZ J 3 DECEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2110 of 2001

BETWEEN: XI XI ZHU HE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: KATZ J

DATE OF ORDER: 3 DECEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1 The application be dismissed. 2 The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2110 of 2001

BETWEEN: XI XI ZHU HE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: KATZ J

DATE: 3 DECEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the RRT"). 2 The applicant in the present proceeding, Ms Xi Xi Zhu He, is a Chinese national. On 31 August 1998, she arrived in Australia with a visitor visa. On 18 September 1998, she applied to the respondent in the present proceeding, the Minister for Immigration & Multicultural Affairs ("the Minister"), for the grant of a protection visa. On 14 November 2000, a delegate of the Minister ("the delegate") decided to refuse to grant Ms He's protection visa application. (I note that I am unaware why it took the delegate almost twenty-six months to make his decision on Ms He's protection visa application.) On 12 December 2000, Ms He applied to the RRT for review of the delegate's decision. On 26 June 2001, the RRT handed down its decision the subject of the present application for review, which decision affirmed the delegate's decision. 3 For the purpose of the present proceeding, it is unnecessary to refer to the RRT's findings and reasons on the question whether Ms He was a refugee. It is, however, necessary to refer to certain events which occurred during the conduct by the RRT of its review of the delegate's decision. 4 On 8 March 2001, the RRT invited Ms He to appear before it at a certain location in Sydney on Monday, 21 May 2001, at 2.30 pm, to give evidence and present arguments relating to the issues arising in relation to the delegate's decision: see subs 425(1) of the Migration Act 1958 (Cth) ("the Act"). On 25 March 2001, Ms He advised the RRT that she intended to appear at the time and place specified in the RRT's invitation to her. 5 I next set out a passage from the RRT's statement of findings and reasons, which passage explains subsequent developments: "[22] On 21 May 2001, by facsimiled letter and medical certificate, the applicant's adviser informed the Tribunal that the applicant could not attend the hearing scheduled for later that day because of her current poor health situation. The Tribunal was requested to reschedule the hearing. The medical certificate, dated 17 May 2001, indicated that the applicant was suffering a viral infection and was unfit for work or school from 17 May until 21 May 2001. The Tribunal contacted the doctor that morning to confirm the certificate. The doctor indicated that the applicant was suffering from neck pain, but should be able to attend a Tribunal hearing, so long as she could stand up and move around if she needed to. [23] The applicant's adviser was contacted, who informed that the applicant had attended the doctor again and had been issued a second medical certificate, dated 20 May 2001. The adviser was informed that the doctor had been contacted, and that the applicant could attend the hearing. The adviser stated that he would try and contact the applicant. Later in the morning of 21 May 2001, the second medical certificate was received. The certificate indicated that the applicant was suffering from headache and neck pain, and was unfit for work or school from 20 May until 22 May 2001. The adviser contacted the Tribunal and informed that he was unable to contact the applicant, but had left a message on her answering machine to attend the hearing. [24] The applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. On 22 May 2001, the Tribunal contacted the adviser to find out why the applicant failed to attend the hearing, and to put the explanation in writing. The adviser asked why the Tribunal wanted an explanation when a medical certificate had been tendered. He stated that he did not know why the doctor had given the applicant a medical certificate and had told the Tribunal that the applicant could attend the hearing. The adviser stated that the doctor was 'two faced', and stated his intention to find out why the doctor told the Tribunal that the applicant could attend, when the adviser had stated that the applicant was sick for about two weeks. [25] The adviser was informed that he should contact the applicant and seek an explanation as to why she had not attended the hearing when she did not have permission from the Tribunal not to attend. He was informed that a written explanation was required as soon as possible. The adviser indicated that he would provide a written explanation that day. No explanation was received from the adviser, nor did the applicant contact the Tribunal and explain her failure to attend. [26] In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it." 6 Section 426A of the Act, referred to in the passage which I have just quoted from the RRT's statement of findings and reasons, provides as follows: "426A Failure of applicant to appear before Tribunal (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled." 7 Ms He's application to the Court for review of the RRT's decision was lodged by her in person on 23 July 2001. In it, she identified two grounds of her application: first, that the RRT's decision had been induced or affected by actual bias; and, secondly, that there was no evidence or other material to justify the making of the decision. The first of those two grounds was a ground of review of the RRT's decision under par 476(1)(f) of the Act as it read at the commencement of the present proceeding, while the second of those two grounds was a ground of review of the RRT's decision under par 476(1)(g) of the Act as it read at the commencement of the present proceeding. Subsequently, amendments to the Act have been made, but those amendments may be ignored for present purposes. 8 In support of her application to this Court for review of the RRT's decision, Ms He filed written submissions. It is apparent from those written submissions that Ms He's real concern about the outcome of her application to the RRT for review of the delegate's decision was with the RRT's not having rescheduled her appearance before it. Among other things, she said, "[I]t was unfair to refuse my application for a deferred hearing when I was so sick and could not attend the hearing. … I believe it is unfair to refuse my application for a deferred hearing under such circumstances and it was rare that the officer [that is, the member constituting the RRT] would have called the doctor to confirm whether I could attend the hearing. A doctor who was questioned like that would have changed his or her mind to state whether the patient was fit for the hearing because it was so unusual. If I were really fit for the hearing, the doctor would not have issued the doctor's certificate to prove that I was not fit for work or study. However, when the doctor was questioned like that he may have changed his mind for his or her own sake. I don't think the way the officer had done is usual, I can't see why the officer could not arrange another hearing for me, instead, he made a decision on my application without sufficient content. Under such circumstances, I believe that the decision of my application was induced or affected by actual bias of the officer. There was no evidence or other material[ ] to justify the making of the decision." 9 I will deal first with the "no evidence" ground relied on by Ms He. 10 Subsection 476(4) of the Act as it read at the commencement of the present proceeding had the effect that an applicant could not succeed on the "no evidence" ground set out in par 476(1)(g) of the Act unless the applicant also established one of two additional matters. Relevant for present purposes was the matter set out in par 476(4)(b) of the Act. The combined effect of pars 476(1)(g) and 476(4)(b) of the Act was that an applicant who wished to succeed on the "no evidence" ground was required to establish: first, that the decision-maker had based the decision on the existence of a particular fact; secondly, that that particular fact on the existence of which the decision had been based did not exist; and, thirdly, that there had been no evidentiary material before the decision-maker from which it had been open to the decision-maker to conclude that that particular fact did exist. An additional refinement regarding a "no-evidence" case was that it could only be made out in respect of the decision-maker's ultimate decision, not in respect of an interlocutory procedural decision by the decision-maker. Yet another refinement was that the applicant could seek to establish the non-existence of the particular fact on the existence of which the ultimate decision had been based only by evidence admissible according to the rules of judicial evidence. For a recent decision of mine in which I discussed many of the above matters, see Rasel v Minister for Immigration & Multicultural Affairs [2001] FCA 443 (20 April 2001, unreported). 11 The probability that, when the "no evidence" ground was included in her application for review, the above intricacies of the law of judicial review on the "no evidence" ground were present to the mind either of Ms He or of anyone advising her is not great. Indeed, I suspect that what the drafter may have had in mind by including the ground was that the mere absence of any oral evidence given by Ms He at an appearance before the RRT meant that there was no evidence to justify the making of the RRT's decision. Be that as it may, in the present proceeding, Ms He has identified no particular fact on which, according to her, the RRT's ultimate decision was based, still less sought to establish by evidence admissible according to the rules of judicial evidence that that fact did not exist and that there was no evidence before the RRT of its existence. It is therefore apparent that her "no evidence" ground must fail. 12 I turn next to Ms He's "actual bias" ground. 13 In Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87 at 104, French J said that actual bias, within the meaning of par 476(1)(f) of the Act, "… must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him [or her] unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made". 14 French J's definition of actual bias for the purpose of par 476(1)(f) of the Act was accepted by all three members of a Full Court of this Court which reversed his judgment in Jia: see Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556 (Spender and R D Nicholson JJ; Cooper J dissenting). On an appeal to the High Court of Australia in which the Full Court's judgment was in turn reversed, Gleeson CJ and Gummow J described the test of actual bias which had been applied both by French J and by the Full Court as "orthodox": see Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at 438, [72]; see also at 451, [130] (Kirby J); and at 463, [176] (Hayne J). I will proceed herein on the basis of French J's definition. 15 As I understand Ms He's submissions, she points to two matters as establishing actual bias in the relevant sense on the part of the RRT: first, that the RRT sought, on the day of her scheduled appearance, to check with the doctor concerned the information contained in the medical certificate supplied; and, secondly, that the RRT decided not to reschedule Ms He's appearance before it. I have inferred that Ms He relies on those two matters both from her written submissions to which I have already referred above and from her oral submissions made during the course of the hearing today. 16 In my view, those two matters, whether considered alone or in combination, do not come close to establishing actual bias on the part of the RRT, even ignoring the seriousness of the making of an allegation of actual bias against a decision-maker. 17 As to the RRT's seeking, on the day of Ms He's scheduled appearance before it, to check with the doctor concerned the information contained in the medical certificate supplied, I can see nothing unfair or otherwise inappropriate in such conduct, still less find in it any suggestion of a state of mind on the RRT's part which rendered it unwilling or unable ultimately to evaluate Ms He's claims to be a refugee. 18 In that connection, it should be noted that the medical certificate about which the RRT made inquiries, although dated Thursday, 17 May 2001, was not brought to the RRT's attention on that date. Instead, it appears to have been faxed to the RRT three days later, on Sunday evening, 20 May 2001, and to have been first seen by the RRT on Monday, 21 May 2001, the day of Ms He's scheduled appearance before the RRT. Further, the certificate covered a period ending on Monday, 21 May 2001, and said nothing specifically about Ms He's ability to appear before the RRT. Instead, the certificate was created on a pre-prepared form, which merely spoke of her being unfit for "work/school". 19 As to the RRT's deciding not to reschedule Ms He's appearance before it, again, I can see nothing unfair or otherwise inappropriate in such conduct, still less find in it any suggestion of a state of mind on the RRT's part which rendered it unwilling or unable ultimately to evaluate Ms He's claims to be a refugee. 20 In that connection, I note that the RRT sought from Ms He, after her non-appearance before it at the scheduled time and place, an explanation of her non-appearance, given the circumstances, but none had been forthcoming by the time it made its decision in the matter. 21 In the result, I will dismiss with costs Ms He's application for review of the RRT's

decision. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate: Dated: 14 December 2001 The Applicant appeared in person.

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Blake Dawson Waldron

Date of Hearing: 3 December 2001

Date of Judgment: 3 December 2001