MZYYY v Minister for Immigration and Citizenship
[2013] FCA 479
•2 May 2013
FEDERAL COURT OF AUSTRALIA
MZYYY v Minister for Immigration and Citizenship [2013] FCA 479
Citation: MZYYY v Minister for Immigration and Citizenship [2013] FCA 479 Appeal from: MZYYY v Minister for Immigration & Anor [2013] FMCA 34 Parties: MZYYY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 90 of 2013 Judge: NORTH J Date of judgment: 2 May 2013 Date of hearing: 2 May 2013 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms G Costello Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 90 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZYYY
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
2 MAY 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The first respondent have the transcript for the hearing before the Refugee Review Tribunal produced, filed and served on the appellant by Monday 6 May 2013.
2.The appellant indicate by email to the solicitors for the first respondent the passages on which the appellant intends to rely in support of the grounds of apprehended bias.
3.The appeal be adjourned to 10.15 am on Thursday 9 May 2013.
4 Costs reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 90 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZYYY
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
2 MAY 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an appeal from orders made by the Federal Circuit Court of Australia (formerly the Federal Magistrates Court) on 31 January 2013. The Judge rejected an application for review of a decision of the Refugee Review Tribunal made on 5 June 2012. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant the appellant a Protection (Class XA) visa.
One ground of review relied on before the Federal Circuit Court was that the hearing by the Tribunal was affected by apprehended bias. This ground was explained in the judgment of the Federal Circuit Court as follows:
48.The applicant for the first time raised in his oral submissions in reply the proposition that the Tribunal was biased against him.
49.The applicant has not put forward any application to adduce transcript of the hearing, nor sought any adjournment to enable him to do so.
50.There is nothing in the Tribunal’s Reasons for D[e]cision, including its detailed account of the events at the hearing itself, that gives rise to any possibility that a reasonable and informed observer would form the view that the Tribunal was not capable of bringing an unprejudiced mind to the matter. To the contrary, in the passages to which I have earlier referred, the Tribunal adopts a sympathetic and favourable position to the applicant. This ground must also fail.
(Emphasis added).
Before the Court the appellant was not legally represented. He was assisted by an interpreter in the Telugu language.
When the hearing of the appeal commenced, the appellant challenged certain fact findings made by the Tribunal. It was explained to the appellant that the Court had a limited role on the appeal as judicial review does not allow the Court to revisit the fact findings made by the Tribunal. Rather, judicial review concerns the Court considering the way in which the Tribunal went about the hearing and whether the hearing conformed with legal requirements.
In response to that explanation the appellant raised the question of the fairness of the hearing. He said that the Tribunal appeared to be unhappy with the responses he gave to questions. The appellant gave the Court the impression that he regarded the treatment which he received from the Tribunal as unfair because he considered that the Tribunal had come to a conclusion that his case was not sustainable before hearing what he had to say. He said that he had raised the matter before the Federal Circuit Court.
As to the availability of the transcript of the Tribunal hearing, the appellant said that he thought that the solicitors or counsel for the Minister had given a CD of the recording of the Tribunal hearing to the Federal Circuit Court.
Ms Costello appeared as counsel for the Minister before this Court and before the Federal Circuit Court. Her recollection was that the Judge said in relation to the apprehended bias submission that, if he required reference to the transcript of the Tribunal proceeding, he would let the parties know.
The Judge determined the apprehended bias application solely on the terms of the decision of the Tribunal (see [50]). He did not have recourse to the transcript for the reason that the appellant did not apply to adduce transcript of the hearing (see [49]).
This approach did not have sufficient regard to the fact that the appellant was not legally represented before the Tribunal.
It is of fundamental importance that the proceedings before the Tribunal are conducted in accordance with fair processes. Whilst disappointed litigants often feel that they have not been fairly treated by the result, it is not so usual that they perceive that they were not fairly listened to during the process. Consequently, if such an allegation is raised it needs to be scrutinised carefully. Usually there should be reference to the transcript and not solely to the reasons for the decision. This is particularly so where the appellant is not legally represented before the Tribunal. A further reason to refer to the transcript in this case is that a cursory reading of the Tribunal’s reasons suggest that the Tribunal member might have been particularly negative about the appellant’s case.
It would be inefficient in the circumstances of this appeal to remit the matter to the Federal Circuit Court to consider the claim of apprehended bias based on reference to the transcript.
Rather the appellant should have leave to adduce the transcript of the Tribunal hearing as further evidence on the appeal.
It is also desirable that the appeal be concluded quickly. It is not practical for the appellant to arrange for the production of the transcript. Consequently, the Minister should produce, file and serve the transcript of the Tribunal hearing.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 14 June 2013
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