Bilwani v Minister for Immigration & Multicultural Affairs

[2000] FCA 1097

Bilwani v Minister for Immigration & Multicultural Affairs [2000] FCA 1097
Migration

Bilwani v Minister for Immigration & Multicultural Affairs [2000] FCA 1097

MIGRATION - appeal from decision of primary judge to dismiss application for review of Refugee Review Tribunal's decision to refuse a protection visa - whether Tribunal erred in not addressing material questions of fact - whether Tribunal erred in basing its decision on the non-existence of a fact which did exist - whether transcript of the Tribunal's hearing establishes actual bias.

Migration Act 1958 s 430, s 476(1)(g)

SERGE OWOWOS BILWANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 51 OF 2000

SPENDER, MADGWICK, EMMETT JJ

9 AUGUST 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 51 OF 2000

BETWEEN:	SERGE OWOWOS BILWANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SPENDER, MADGWICK, EMMETT JJ
DATE OF ORDER:	9 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       The appeal be dismissed.

2.       The appellant pay the respondent's costs of and incidental to 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
NEW SOUTH WALES DISTRICT REGISTRY	N 51 OF 2000

BETWEEN:	SERGE OWOWOS BILWANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SPENDER, MADGWICK, EMMETT JJ
DATE:	9 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from the dismissal by a single judge of this Court, Finn J, on 8 December 1999 of an application for an order of review by Serge Owowos Bilwani. Mr Bilwani is a national of the Democratic Republic of Congo. He had been refused a protection visa both by the delegate of the respondent Minister and the Refugee Review Tribunal (the Tribunal), who were not satisfied that he was a refugee. Mr Bilwani sought review of the Tribunal's decision under Part 8 of the Migration Act 1958 (the Act). Mr Bilwani represented himself at the hearing before the Tribunal, before the learned primary judge, and on this appeal.

2       The application for review as filed listed only two grounds: first, "Decision was wrong", and second, "Decision was not unbiased". The ex tempore reasons for judgment of the primary judge assert that the ground of review in the application was merely "that the Tribunal's decision was wrong". There is no express reference in those reasons to the ground of the application that the Tribunal was biased.

3       The reasons for judgment of the learned primary judge indicate that, as presented to his Honour, Mr Bilwani's challenge was based on a claim that, contrary to the requirements of s 430(1)(c) of the Act, the Tribunal's statement of reasons did not address material questions of fact raised by him; and that in reliance on  s 476 (1)(g) of the Act, the Tribunal's decision was based on the non-existence of a fact that did exist - this being a reference to the finding by the Tribunal that Mr Bilwani was not a member of the Resemblement Congalais pour la Democratie (the RCD) and did not engage in activities organised by it. Mr Bilwani, by this ground, essentially challenges the correctness of that finding.

4       The essence of the primary judge's conclusion was:

"I should state at the outset that in substance Mr Bilwani has sought no more than to have this Court engage in merits review of the Tribunal's decision. Put shortly, the case he advanced to the Tribunal was not accepted in its essentials, the Tribunal weighing what he relied upon against independent evidence and country reports touching the issues he raised. It preferred the latter. The Tribunal equally was unimpressed by the applicant's failure to mention "relevant information" until late in the processing of his application. So clear cut is this case that little purpose would be served by a lengthy narrative of the factual setting and of the Tribunal's reasons for decision."

5       In respect of the claim based on non-compliance with  s 430 of the Act, the primary judge noted:

"All that Mr Bilwani has been able to point to in support of this claim is that the Tribunal and its reasons did not refer to all of the information he provided to it concerning his situation and events in Goma at the time of the Red Cross incident and that it did not fully evaluate or take into account the risks he faced if he goes to Kinshasa because of the circumstances in eastern Congo."

6       His Honour said:

"What Mr Bilwani is presently seeking is to go beyond the identification of the substantial issues, and the reasons and findings dealing with those, and to trespass into the impermissible territory of merit review. It is not the responsibility of the Tribunal in complying with the requirements of s 430 to refer to, and to respond to, each and every item of information provided by an applicant to it, the more so when the significance to be attributed to such information might itself be contingent upon a finding on the applicant's credibility. Here there can be no doubt that the Tribunal identified the material questions of fact on the information before it. In my view it [dealt] with them adequately and appropriately. Mr Bilwani was not believed. There was no reviewable impropriety committed by the Tribunal in reaching its decision on his credibility. The present ground of complaint is no more than an attempt via s 430 to circumvent the consequences of that adverse decision. It is without warrant. I can discern no reviewable deficiency in the Tribunal's reasons statement."

7       As to the claim based on s 476(1)(g) of the Act, the learned primary judge concluded that the Tribunal had rejected this claim for reasons of credibility, and that:

"It was, in the circumstances, open to the Tribunal to arrive at the decision it did. All the claim amounts to is again one of merit review."

8       Mr Bilwani's notice of appeal, filed on 18 January 2000, states under the heading "Grounds" that:

"His Honour erred in finding that the Refugee Review Tribunal had [not] failed to provide adequate reasons as required by the s430 of the Migration Act 1958 and it was not open to persua[s]ion in favour of the Appellant."

9       In the written submissions in support of the first limb of these grounds of appeal, Mr Bilwani said:

"I find that the tribunal made an error of law because my member did not consider some of my major claims and that therefore she did not correctly perform her duty under [the] Migration Act 1958 which required her to produce a statement of reasons in accordance with section 430." (typographical mistakes corrected).

10       He then set out some claims which he says were not taken into consideration, and continued:

"All these details were not taken in consideration by the tribunal I hereby request the court to consider all these details and give me a fair trial."

11       Mr Bilwani also repeated his claim that the Tribunal had erred because it did not accept his claims concerning his involvement in the RCD.

12       Concerning the claim that the Tribunal failed to provide adequate reasons, it is clear that, as Finn J said, it is not necessary for the Tribunal to refer to every allegation or piece of evidence before it. The finding by the primary judge was that:

"...there can be no doubt that the Tribunal identified the material questions of fact on the information before it. In my view it [dealt] with them adequately and appropriately."

13       In the context of the broader passage of His Honour's reasons earlier set out, this finding reveals no error; nor is there any reviewable error in the Tribunal's failure to find as the appellant contended concerning his involvement with the RCD.

14       As to the question of bias, there is no specific reference to this ground of Mr Bilwani's application in the ex tempore reasons for judgment of the learned primary judge, nor in the written submissions of Mr Bilwani on the appeal. On the material available to this Court when the appeal was heard on 30 May 2000, the claim of bias appeared to have been based on the fact that Mr Bilwani's claims had not been accepted, or that not all of them had been the subject of an express finding by the Tribunal.

15       Out of an abundance of caution, the Court granted leave to Mr Bilwani to put before it the transcript of proceedings before the Tribunal and at first instance in this Court, so that the Court might consider for itself whether there might be anything in that material which had been overlooked and which could provide a basis for an appeal by Mr Bilwani on the basis of bias.

16       The Court has had the opportunity to examine each transcript in detail. There is nothing in either transcript which suggests that the proceedings before the Tribunal, or its conclusions, were affected by bias, nor any basis for thinking that the learned primary judge failed to deal adequately with a matter that was before him. In particular, there is no basis to doubt the correctness of the learned primary judge's finding that:

"There was no reviewable impropriety committed by the Tribunal in reaching its decision on [Mr Bilwani's] credibility."

17       The evidence in the transcript of the manner in which the hearing was conducted by the Tribunal does not even suggest, let alone establish, actual bias.

18       For the above reasons, the appeal has to be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Madgwick and Emmett.

Associate:

Dated:        8 August 2000

#DATE 9:8:2000

The Appellant appeared in person
Counsel for the Respondent:	Mr Justin Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 May 2000
Date of Judgment:	9 August 2000