SZOUO & Ors v Minister for Immigration & Anor [2015] FCCA 1430 (29 May 2015)

Last Updated: 1 June 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The decision of the second respondent made on 29 May 2014 affirming the decision of the delegate of the first respondent made on 19 September 2012 not to grant the applicants Protection visas is quashed.

(2) The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 19 September 2012 not to grant the applicants Protection visas.

(3) The first respondent pay to the applicants such costs to which the applicants are entitled as unrepresented parties.

SYG 1724 of 2014

First Applicant



SZUTG

Second Applicant



SZUTH

Third Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants seek judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection visas.
2. Only the first applicant (applicant) submitted claims for protection. The second applicant, the first applicant’s de facto partner, applied for a Protection visa as a member of the family unit of the first applicant. The third applicant is their child.^[1]
3. The principal ground on which the applicant seeks judicial review is bias. The applicants contend the Tribunal did not bring an impartial and unprejudiced mind to bear on their application for review.

Claims for protection

4. The applicant’s claims for protection are as follows:
   1. The applicant came to Australia in 2006 on a Student visa which was arranged by one of her father’s friends.^[2] In 2009 the applicant’s father left their hometown in Fujian Province to work in a tunnel construction project and failed to return home for a long time.^[3] In January 2010 the applicant went back to China and persuaded her father to come and visit her and her mother.^[4] Her father stayed for 3 days before leaving again.^[5] The applicant became concerned about her mother who “was always in low spirit and almost lost her confidence in her future”^[6], and spoke to a friend who had become a Catholic in the Roman Catholic Underground Church.^[7] The applicant’s friend suggested that she bring the applicant’s mother to attend church meetings where she could introduce the applicant’s mother to other church brothers or sisters.^[8]
   2. The applicant began attending the underground church at her friend’s home with her mother.^[9] After the first meeting, the applicant and her mother attended meetings of the Bible study group every Tuesday, Wednesday and Friday.^[10] The meetings were held at other church brothers’ or sisters’ homes to avoid the attention of the Public Security Bureau.^[11] In February 2010 the applicant and her mother were baptised at the last meeting of the Bible study group.^[12]
   100. The applicant’s brother was baptised in April 2010^[13] and when he started university he secretly evangelised to students on campus.^[14] In January 2011 the applicant returned to Fujian and began attending a Catechumen class organised by the underground church with her brother and her brother’s girlfriend.^[15] The applicant, her friend and her brother also worked as assistants in the Catechumen class.^[16]
   4. In February 2011, after the applicant had returned to Australia, her brother and his girlfriend attended a secret meeting in a park near the university campus.^[17] The meeting was discovered by authorities who tried to arrest the applicant’s brother and other students.^[18] The applicant’s brother tried to run away with his girlfriend but they were both beaten by the police.^[19] The applicant’s brother was beaten to death for resisting the police to try and protect his girlfriend.^[20]
   5. In March 2011 the applicant’s brother’s girlfriend and other students were arrested by the police.^[21] As a result of the students’ confessions, the applicant’s friend was also arrested for spreading “illegal religious beliefs” and developing “illegal religious organisation” among the students.^[22] The applicant’s mother was detained at a detention centre for two months from March to May 2011 and was tortured and mistreated.^[23] The applicant’s brother’s girlfriend was detained for one month.^[24]
   6. The applicant began to attend the Catholic Church in Australia in February 2010 and has since been attending church regularly.^[25] The applicant met the second applicant at church who is also a devout Catholic.^[26]
   7. The applicant and second applicant have been unable to have their marriage registered as the second applicant is unlawful and does not have a valid passport.^[27] Because of this, their son was born out of wedlock and the applicants will be forced to pay a fine on their return to China.^[28] However, the applicants are in serious financial hardship and will be unable to afford the fine, and the third applicant will become a “black child” who will be unable to survive in China.^[29]

Tribunal’s reasons for decision

5. The Tribunal concluded the applicant did not have a subjective fear of persecution.^[30] That finding was based on four matters. The applicant returned to China twice; the applicant renewed her Chinese passport in Australia; the applicant failed to lodge an application for a protection visa until five years after she arrived in Australia in 2007;^[31] and the applicant applied for a protection visa “only after being approached by compliance”.^[32]
6. The Tribunal also found the applicant was not a genuine practising Christian.^[33] That finding was based on a number of matters. The Tribunal found implausible the applicant’s evidence that it was within the period of one month that she failed to reconcile her parents, attended underground Catholic gatherings, and was baptised.^[34] The applicant had no baptismal certificate from China.^[35] The applicant exhibited considerably greater knowledge of Christianity at the hearings before the Tribunal than at the time of her interview with the delegate.^[36] The testimony the applicant gave before the Tribunal about her knowledge of Christianity “was rehearsed and memorised in order to achieve a migration outcome”.^[37] In any event, the testimony the applicant gave in relation to her knowledge of Christianity “was at best superficial, and lacked spontaneity”.^[38]
7. Further, the Tribunal referred to, but gave no weight, to evidence given by the priest of a Catholic church the applicant attended in Australia. The priest was not aware of the applicant’s circumstances, or that she had returned twice to China; he could not recall discussing with the applicant or her partner that they had two children out of wedlock; and did not know how she or her partner came to Australia.^[39]
8. Given the Tribunal’s findings that the applicant was not a genuine practising Christian, and that the applicant had been able to depart China legally without hindrance, to return there twice without hindrance, and apply for a new Chinese passport, the Tribunal found the applicant’s claims of harm to members of her family for reasons of religion were not credible.^[40] In addition, the Tribunal found implausible that the applicant could depart China legally and that after she left China, and in rapid succession, her mother was arrested and her brother was killed.^[41]
9. As to the applicant’s claims based on her having had a child out of wedlock, the Tribunal found the applicants would be in a position to pay any social compensation fee that may be payable in relation to the child.^[42] That was so because both applicants have secondary education, they have gained work experience in Australia, and they have extensive family in China. The Tribunal also found that any liability to pay a social compensation fee would be pursuant to the enforcement of generally applicable laws.^[43]

Grounds of application

10. The application for judicial review raises the following grounds:
    1. The Applicant appeals against or in the alternative seeks a declaration as specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 29 May 2014 on the grounds that it was not a decision under the act.

Particulars

1. Section 5E
   2. Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious.

2. The Tribunal appeared to “come what may” not permit the facts as to religious intolerance in China to be considered and the social intolerances that face persons born out of wedlock. The Tribunal misapplied the required application of the Refugee Convention with respect to the applicant’s status as an unmarried mother.
3. The Tribunal appeared to not permit the facts as to the application of the Refugee Convention to be considered.
4. The Tribunal was apparently so predisposed to refuse to believe the applicant as to deny them procedural fairness by way of statutory breach
5. The Tribunal’s conclusion was encumbered by characteristics which would leave a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.
6. Such other grounds as this Honourable Court may deem just.

11. Although a lawyer drafted the application, the applicants were not legally represented at the hearing before me. The second applicant spoke for all applicants. He made no submissions in relation to any of the grounds specified in the application. Instead, the second applicant relied on a document containing a number of submissions (Written Submissions) which he handed up in Court during the hearing.

12. The first six paragraphs of the Written Submissions repeat contentions the applicant advanced before the Tribunal in support of her claims for protection. As I explained to the second applicant, this Court does not have jurisdiction to determine whether the applicant had a valid claim for a Protection visa, or to determine whether the Tribunal was correct not to accept the applicant’s claims. The Court’s jurisdiction is limited to determining whether the Tribunal has made a jurisdictional error. The first six paragraphs of the Written Submissions, therefore, disclose no jurisdictional error by the Tribunal.
13. The seventh paragraph of the Written Submissions contends the Tribunal failed to consider the applicant’s claim “carefully, impartially and correctly”. In paragraph 9 of the Written Submissions, it was submitted that “what the Tribunal actually did was to trip my devout wife up”.
14. Whether or not the Tribunal correctly considered the applicant’s claims is not an issue that can be raised on an application for judicial review of the Tribunal’s decision. Whether or not the Tribunal considered the applicant’s claims impartially, however, is a question which, if answered in the affirmative, would disclose a jurisdictional error by the Tribunal. That submission falls within grounds 4 and 5 of the grounds of application.
15. The second applicant also made oral submissions. In substance, the second applicant submitted the Tribunal acted unfairly by the questions it asked the applicant in order to determine whether the applicant was a genuine Christian. He submitted the Tribunal asked the applicant less than ten questions, and the questions the Tribunal asked were unusual, or unusually difficult. Further, the applicant submitted that the purpose for which God presented the Bible was not that God wanted people to remember it in every detail by heart. The main purpose was to “increase our faith and our belief in him”, and that “God hope that we can rid of our sins and that we can reunite with Him in heaven”.
16. The issue, therefore, that arises is whether the Tribunal was biased. More particularly, the issue is whether the Tribunal’s questioning of the applicant about her knowledge of Christianity, and the Tribunal’s assessment of the answers given to those questions, manifested bias.

Legal principles

17. The Tribunal will make a jurisdictional error for a reason that involves bias in two circumstances. One is where the Tribunal is biased in fact. The other is where there is a reasonable apprehension of bias. I will not consider the applicant’s claim that the Tribunal was in fact biased. If I am not satisfied the evidence establishes a reasonable apprehension of bias, it will necessarily follow I would not be satisfied on the evidence that the Tribunal was actually biased.
18. The starting point is a principle that applies to judges:^[44] a judge is disqualified from hearing a case if there is the appearance of bias; and there will be an appearance of bias if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.^[45]
19. The application of this principle, which has been referred to as the “apprehension of bias principle”,^[46] requires two steps.^[47] The first is “the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits”. The second is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
20. One class of conduct that might lead a judge to decide a case other than on its legal and factual merits is prejudgment. “Prejudgment” refers to a state of mind that is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.^[48] A judge may manifest prejudgment by expressing a “premature disbelief in the credibility” of a party or witness,^[49] or by expressing concluded views during the hearing.^[50] The requirement that a judge not prejudge a case, however, does not require the judge’s mind to be blank; the question is “whether it is open to persuasion”.^[51] Further, the apprehension of bias principle “does not require the absence of any predisposition or inclination for or against an argument or conclusion”.^[52] It has been said that:^[53]

Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing these opinions, and being given an opportunity to deal with them.

21. Another class of conduct that might give rise to a reasonable apprehension of bias is hostility and, in general, conduct which departs from proper standards of fairness.^[54]
22. Whether or not conduct might give rise to a reasonable apprehension of bias is decided by reference to what “a fair-minded lay observer might reasonably apprehend”. This “hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective”.^[55] While the fictional observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness is to be considered in the context of ordinary judicial practice”.^[56]
23. The apprehension of bias principle applies to administrative tribunals in general,^[57] including the Tribunal.^[58] The practical operation of the apprehension of bias principle, however, may operate differently when applied to a decision-maker that is not a court.^[59] That means:^[60]

[T]he rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings Moreover . . . regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned.

24. These observations have been applied to the statutory functions and procedures of the Tribunal:^[61]

The kind of conduct on the part of the Tribunal that might give rise to a reasonable apprehension of bias needs to be considered in the light of the Tribunal’s statutory functions and procedures. Conduct which, on the part of a judge in adversarial litigation, might result in such an apprehension, might not have the same result when engaged in by the Tribunal. That is another matter.

25. The characteristics of the Tribunal that need to be taken into account when considering the practical application of the apprehension of bias principle to the Tribunal include “the non-adversarial form of its procedures, the nature of the matters it is required to consider in coming to a decision”, and the Act “which in some respects directly modifies those requirements”.^[62] The characteristics of the Tribunal that must be considered when determining the content of the apprehension of bias principle as it applies to the Tribunal are also identified in the following passage from the reasons of judgment of Allsop J (as his Honour then was) in NADH v Minister for Immigration and Multicultural and Indigenous Affairs:^[63]

The Tribunal . . . must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

26. In light of these authorities, the apprehension of bias principle, as it applies to the Tribunal, may be stated as follows: there will be an apprehension of bias by the Tribunal if a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review. While the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Tribunal member, the reasonableness of the apprehension is to be considered in the context of the statutorily mandated functions and procedures of the Tribunal.
27. Relevant to the claim of apprehended bias made in these proceedings is the extent to which regard may be had to the reasons for decision of the Tribunal in determining whether there is any apprehended bias. In cases where actual bias has been alleged, it has been said “it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”.^[64] The same must be true in cases of apprehended bias; and for the same reasons:^[65]

Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing . . . or a failure to enquire into and to obtain readily available and important information relating to central matters for determination . . . an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

Do the facts demonstrate apprehension of bias?

28. I now consider whether the evidence establishes that a fair-minded lay observer might reasonably apprehend the Tribunal might not have brought an impartial and unprejudiced mind to the applicant’s case for review. The first step is to identify that which could be said might have led the Tribunal to decide the applicant’s case other than on its legal and factual merits. There are two matters to consider: the questions the Tribunal asked of the applicant’s knowledge of Christianity; and the findings the Tribunal made in relation to those answers.

Tribunal’s questioning of applicant’s knowledge of Christianity

29. The Tribunal member began by asking questions about the applicant’s baptism, the significance of baptism for Christians, and in particular Catholics, and what was the significance of the water and pouring of the water.^[66] After asking further questions in relation to the applicant’s baptism, the Tribunal asked whether the applicant read the Bible, whether she had her own Bible, when the applicant first started to read the Bible, whether the applicant knew the Old and New Testaments, whether the applicant recalled what the first book of the Old Testament is called, and whether the applicant knew the story of Abraham, and whether the applicant knew about Moses.^[67] At that point in the hearing, it appeared the interpreter was having difficulty interpreting the names from the Bible to which the Tribunal member was referring in his questions. The hearing was adjourned to another day.
30. The second hearing commenced with the Tribunal member resuming his questions on the applicant’s knowledge of Christianity. The Tribunal asked who was the longest living person in the Bible, whether the first applicant knew who, according to Genesis, “the 1^st murder victim was in history”, what “the dove carries in [its] beak when it returns to Noah’s ark”, what God conveyed as a signal or a message of His covenant with Noah and all living creatures, which “plague fell upon Egypt from the sky”, what “Moses’ sister’s name was”, who went with Moses to confront the pharaoh, why Jesus was condemned to death, whether “the crowd at the trial had anything to do with Jesus being sentenced to death”, where was the actual place of Jesus’s crucifixion, whether the applicant had heard of Golgotha, whether there were “a number of momentous events that occurred” when “Christ died on the cross”, when Jesus rose from the dead “where did he 1^st appear to 2 of his disciples”, how long after His resurrection did Jesus remain on earth before he was taken up to heaven, what were Jesus’s final instructions to His disciples before he was taken up to heaven, what visible sign of the Holy Spirit did the disciples see on the day of the Pentecost, the name of the garden in which Jesus was arrested, what the name is of the second book of the Old Testament, what the Israelis were supposed to put on the doors of their houses to save themselves from the last plague in Egypt, how Aaron was related to Moses, and “what book that’s in”, and “how often does Jesus say that we must forgive someone”.^[68]

What the Tribunal made of the answers

31. The Tribunal made a number of findings in relation to the evidence the applicant gave in answer to the questions I have set out above. First, the Tribunal noted the applicant “provided considerably greater knowledge of Christianity at her hearing than she did at the time of her departmental interview”.^[69]Second, the Tribunal rejected the explanation the applicant gave for the improvement in her knowledge and instead found “the applicant’s testimony was rehearsed and memorised in order to achieve a migration outcome”.^[70] Third, the Tribunal found that “even after having ample opportunity to study up on Christianity, . . . the applicant’s answers contained numerous errors”^[71] and “her lack of knowledge of Christianity is demonstrative of the fact that she is not a genuine practicing [sic] Christian”.^[72] Finally, the Tribunal found that, overall, “the applicant’s testimony in relation to her knowledge of Christianity was at best superficial, and lacked spontaneity, particularly at her first hearing”.^[73]

What would a fair-minded observer make of the Tribunal’s questions and findings?

32. A fair-minded observer who knows nothing about Christianity other than that the Bible is its holy book, that it contains many narratives, and that it is a very long book, would have been impressed with two aspects of the Tribunal’s questions. The first is their intense specificity. Who, according to “Genesis”, was history’s first murder victim? What did the dove carry in its beak when it returned to Noah? By what signal or message did God convey his covenant with Noah and all living creatures? Where did Jesus first appear to two of his disciples? The second aspect of the Tribunal’s questions which would have impressed the fair-minded observer is their randomness. They extend from the “first murder” in history (a reference, it may be assumed, to Cain’s murder of his brother Abel, as related in Genesis, Chapter 4), to the narratives of Abraham, Noah, Moses, and then to Jesus.
33. From these matters the fair-minded observer might reasonably consider that the Tribunal’s purpose in asking the questions was not to determine whether the applicant genuinely held a Christian belief, but, instead, to expose her ignorance with a view to confirming that she did not hold genuine Christian beliefs. A fair-minded observer would have agreed with paragraph 9 of the Written Submission that “what the Tribunal actually did was to [seek to] trip” the applicant up.
34. Even if the Tribunal’s questions by themselves might not have led a fair-minded observer to apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the determination of the applicant’s case, the fair-minded person might have so apprehended on reading what the Tribunal made of the applicant’s answers. On the one hand the Tribunal found the applicant’s inability to correctly answer some of the questions indicated a “lack of knowledge of Christianity” which, in turn, demonstrated the applicant is not a genuine practising Christian.^[74] On the other hand, where the applicant did correctly answer the Tribunal’s questions, the Tribunal did not find the correct answers indicated the applicant was a practising Christian. Instead, the Tribunal found the correct answers were rehearsed and memorised “in order to achieve a migration outcome”,^[75] and, in any event, manifested a knowledge that was “at best superficial” and lacking in “spontaneity”.
35. The Tribunal’s findings would have indicated to a fair-minded observer that, whichever way the applicant answered the Tribunal’s questions, the Tribunal intended to find the applicant was not a genuine practising Christian: for the Tribunal, the applicant’s answers to its questions either disclosed ignorance, and hence the absence of a genuine belief in Christianity, or, if answered correctly, disclosed a knowledge that has been rehearsed and memorised for the purpose of securing a favourable visa outcome and, thus, also demonstrated the applicant was not a genuine practising Christian. In other words, whichever way the applicant answered, the Tribunal would have found her answers demonstrated the absence of a genuine belief in Christianity. That would have demonstrated to a fair-minded observer that the Tribunal did not bring an impartial and unprejudiced mind to the determination of the applicant’s case.
36. This conclusion relies on the actual reasoning and findings of the Tribunal. As I have noted earlier in these reasons, it would be a rare case where a reasonable apprehension of bias could properly be inferred from the Tribunal’s reasons. What is before me, however, is one such rare case. The Tribunal’s reasons disclose an approach to the assessment of the applicant’s claimed Christian faith that relied on a logic that necessarily led to the Tribunal’s concluding the applicant was not a genuine practising Christian.
37. The applicants succeed on their ground that the Tribunal determined the applicant’s case for review in circumstances that gave rise to a reasonable apprehension of bias.

Other matters

38. Although not raised in the grounds of application, the Tribunal’s questioning of the applicant’s knowledge potentially brings into consideration the question whether the Tribunal’s conclusion the applicant did not demonstrate knowledge of the Bible was itself based on a proper basis for concluding that a practising Christian ought reasonably to have possessed the knowledge the applicant was found not to have possessed. That question would have arisen because of the following observations of Kenny J in Minister for Immigration and Citizenship v SZLSP:^[76]

Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.

39. Had I not concluded the Tribunal conducted itself in a manner that gave rise to a reasonable apprehension of bias, I would have invited submissions from the Minister about whether the Tribunal’s questions assumed that a person who genuinely practised Christianity would reasonably be expected to have knowledge of the matters to which its questions were directed and, if the Tribunal did proceed on that assumption, whether there was any rational foundation for that assumption and, if not, whether the Tribunal made a jurisdictional error by proceeding on that assumption.

Conclusion and disposition

40. The applicants have succeeded in establishing the Tribunal conducted itself in a manner that gave rise to a reasonable apprehension of bias.
41. I propose, therefore, to order that the Tribunal’s decision be quashed, and that it determine the applicants’ application for review according to law. I also propose to order that the Minister pay to the applicants such costs as they may be entitled as unrepresented litigants.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis



Associate:



Date: 29 May 2015

^[1] CB1-39

^[2] CB59, [1]

^[3] CB59, [2]

^[4] CB60, [3]

^[5] CB60, [3]

^[6] CB60, [4]

^[7] CB60, [4]

^[8] CB60, [4]

^[9] CB60, [5]

^[10] CB60, [5]

^[11] CB60, [5]

^[12] CB60, [5]

^[13] CB61, [6]

^[14] CB61, [7]

^[15] CB61, [8]

^[16] CB61, [8]

^[17] CB62, [9]-[10]

^[18] CB62, [10]

^[19] CB62, [10]

^[20] CB62, [10]

^[21] CB62, [11]

^[22] CB62, [11]

^[23] CB62, [11]

^[24] CB63, [12]

^[25] CB63, [14]

^[26] CB63, [15]

^[27] CB63, [16]

^[28] CB63, [16]

^[29] CB63, [16]

^[30] CB189, [73]

^[31] The applicant in fact arrived in Australia in 2006.

^[32] CB189, [73]

^[33] CB190, [82]

^[34] CB189, [74]

^[35] CB189, [75]

^[36] CB190, [78]

^[37] CB190, [79]

^[38] CB190, [80]

^[39] CB191, [87]

^[40] CB190, [84]

^[41] CB191, [85]

^[42] CB191-192, [90]

^[43] CB192, [93]

^[44] In this section of my reasons, I repeat almost verbatim the analysis of the principles I undertook in SZSNU v Minister for Immigration & Anor [2013] FCCA 1219

^[45] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492 ([11]); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 ([6]); Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at 437 ([31])

^[46] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 ([6])

^[47] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 ([8])

^[48] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 ([72])

^[49] Black v Black [1951] NZLR 723 at 729 (Cooke J)

^[50] Examples are discussed and cited in J Tarrant Disqualification for Bias, The Federation Press, 2012 at 122-128

^[51] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531 ([71]) (Gleeson CJ and Gummow J)

^[52] Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 ([72]) (Gleeson CJ and Gummow J)

^[53] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 ([13])

^[54] Examples are discussed and cited in J Tarrant Disqualification for Bias, The Federation Press, 2012 at 197-203

^[55] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 ([12])

^[56] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 ([13])

^[57] See for example R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-554

^[58] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128

^[59] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 343-344 ([4])

^[60] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [5]

^[61] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at 138 ([27])

^[62] Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at 138 ([27])

^[63] [2004] FCAFC 328; (2004) 214 ALR 264 at 269 ([19])

^[64] SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] (von Doussa J)

^[65] SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] (von Doussa J)

^[66] Transcript of Tribunal hearing, day 1, pages 20-22. The transcript is annexed to the affidavit of Y Wu made on 23.06.14

^[67] Transcript of Tribunal hearing, day 1, pages 24-25

^[68] Transcript of Tribunal hearing, day 2, pages 2-9. This transcript is annexed to the affidavit of D Wu made on 23 June 2014.

^[69] CB190, [78]

^[70] CB190, [79]

^[71] CB190, [79]

^[72] CB190, [79]

^[73] CB190, [80]

^[74] CB190, [79]

^[75] CB190, [79]

^[76] [2010] FCAFC 108 at [39]