SZECK v Minister for Immigration

Case •

[2004] FMCA 1075

•

13 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECK v  MINISTER FOR IMMIGRATION [2004] FMCA 1075
MIGRATION – Refugee – objection to competency – bias – apprehended bias.

Migration Act 1958

Ngu v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 54
Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476
Re RRT & Anor; Ex parte H & Anor
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durairajasingham (2000)168 ALR 407

Applicant: SZECK
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: SYG2429 of 2004
Delivered on: 13 December 2004
Delivered at: Sydney
Hearing date: 13 December 2004
Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondent: Mr L Leerdam
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. That in upholding the respondent's notice of objection to competency the application is dismissed.

  2. The applicant to pay the respondent's costs set in the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2429 of 2004

SZECK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

  1. This is an application filed in this Court on 30 July 2004 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 April 2003 and was given orally on that date and subsequently also notified to the applicant by letter dated 10 April 2003, to affirm the decision of a delegate of the respondent Minister made on 26 April 2002 to refuse a protection visa to the applicant.

  2. The applicant is a citizen of Bangladesh who arrived in Australia on


    10 May 1999 and applied for a protection visa on 16 July 2001.  The applicant's claims before the Tribunal were his fear from harm from the Awami League activists, because of his political opinion, in particular, due to his involvement with the local Bangladesh Nationalist Party student wing. Also, his fear arising from his exposure of the “scam”, which is the way that the Tribunal has described it, by which he came to Australia, and fear of harm arising from a false case made out against the applicant brought by those involved in the “scam” that brought him to Australia some of whom at least are said to be members of another political party, Jamaate-Islami. As I recorded earlier the applicant filed his application to this Court on 30 July 2004. He attended the first Court date in this matter on 30 August 2004 assisted by an interpreter in the Bengali language. On that date, the Court made orders, and I note without the applicant's consent, but nonetheless orders were made by the Court that the applicant file and serve an amended application giving complete particulars of each ground relied upon. No such application has been filed.

  3. At the date of filing of his application to this Court the applicant indicated that he wished to access the Court’s Legal Advice Scheme. However, at the time of the first Court date he indicated that he did not wish to participate in the Scheme. Before me today the applicant, who appeared unrepresented, assisted by an interpreter in the Bengali language, confirmed that the latter of the two indications, that is, that he did not wish to participate in the Scheme, represented his most recent and current position.

  4. I also have before me today a Notice of Objection to Competency filed by the respondent on 18 August 2004 and written submissions filed on 23 November 2004 on behalf of the respondent. In those submissions, the respondent does not appear to press the objection to competency but appears to seek dismissal of the application on its merits.  At the hearing before me today Mr Leerdam, for the respondent Minister, advised that the Minister would press the issue of the notice which in any event will ultimately still require me to look at the substantive merits of this application.

  5. The case of Ngu v MIMIA [2003] FCAFC 54, a Full Federal Court decision, upheld the judgment of Nicholson J, who at first instance held that an appeal against a privative clause decision lodged outside the time limits in s.477 of the Migration Act is in those circumstances incompetent, unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error, regard must be had to section 474 of the Migration Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476. If the Tribunal decision in the case before me is a privative clause decision pursuant to s.474 of the Act, then the time limit provided in s.477(1A) of the Act would apply. Also pursuant to s.477(2) of the Act the Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit. On the issue therefore of whether the respondent's Notice of Objection to Competency should be upheld or not I am required to determine whether the decision complained of is a privative clause decision. This of course requires an examination of the application to the court and any substantive issues raised in the proceedings to determine whether the Tribunal decision is effected by jurisdictional error.

  6. I also have before me an affidavit filed by the respondent’s solicitors on 18 August 2004 and sworn by a solicitor in the employ of the respondent's solicitors.  The affidavit has annexed to it a copy of a letter from the Tribunal to the applicant with a copy to the applicant's then migration adviser dated 10 April 2003, providing the applicant with a copy of its decision and reasons.  As the decision was given orally on 7 April 2003 pursuant to s.430D(1) of the Act the applicant is taken to be notified on the decision on the day on which the decision is made. I took the subsequent letter to the applicant to be compliance with the requirement that a statement be given to the applicant within 14 days.

  7. The applicant appears before me today unrepresented and I have already made reference to the applicant's position on accessing the Legal Advice Scheme. He was assisted by an interpreter in the Bengali language.  The applicant put to the Court a number of matters that were a recitation of some of the facts before the Tribunal. Being mindful of the fact that the applicant appeared before me today unrepresented I explained to the applicant the different functions and roles of the Tribunal and the Court and pressed him to focus on matters that would show “legal error” in the way the Tribunal had done its job.

  8. In his application to the Court the applicant claims three grounds. None are particularised.  The first two grounds may be taken together and they are:

    “1)The tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.

    2)The Tribunal is a neutral body which is in the business of considering any refugee case in light of the authentic information and reliable witnesses and should be unbiased.  It is a matter of regret the tribunal was not free from biasness and prejudice while reviewed by claim. As such the applicant was deprived from the natural justice.”

  9. These are clearly assertions of bias or apprehended bias on the part of the Tribunal which the applicant says deprived him of natural justice.  Natural justice or procedural fairness clearly encompasses the bias rule which requires a decision maker to be impartial and to be seen to be impartial in the making of a decision. It is well established that the test of actual bias requires that a decision maker has a state of mind so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently.  The question is whether the mind of the decision maker is open to persuasion. Actual bias is not necessarily to be inferred from behaviour during the conduct of proceedings, such as discourtesy or impatience but would always be a question of fact and degree as to whether a closed mind can be inferred, but as might be shown for example, by hostility during the course of the proceedings.

  10. Apprehended bias is concerned with, as the High Court has said in the case of Re RRT & Anor; Ex parte H & Anor at [28]:

    “Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

  11. Such allegations made by the applicant before me today are of a very serious nature as in relation to bias they go to the heart of the integrity of the Tribunal, and in the case of the apprehension of bias go to perceptions of how the Tribunal conducts itself, in the context where the Courts, and the statutory regime have well established principles of the need to act fairly. See for example, s.420 of the Act, where the objective of being fair is clearly enunciated.

  12. Clearly, such allegations should not be made lightly.  In the case before me today no particulars whatsoever are provided. Nor was the applicant able to put anything to me today to support the assertion of bias or the apprehension of bias. It is understandable that the applicant is aggrieved and does not agree with the Tribunal's decision. The applicant put before me today that he told the truth to the Tribunal. The Tribunal did not believe him. The applicant can only explain this by saying the Tribunal must have been biased. However in the absence of anything else before me the assertions of bias and the apprehension of bias cannot be made out.

  13. The third ground, in part, again goes to bias in that the applicant asserts the Tribunal failed to take a “fresh look” and I do not need to take this any further in light of what I have already said.  In part this ground also takes issue with the Tribunal's findings on the applicants credibility where the applicant asserts the Tribunal has totally ignored the applicant's claim which was “hundred per cent true” and failed to take into account the relevant legal issues.

  14. It is clear from a plain reading of the Tribunal's record of decision that the applicant failed before the Tribunal because the Tribunal did not believe his claim.  The Tribunal variously noted the following:

    -the applicant's tardiness in pursuing his claims (Court Book 81.4); 

    -his “multiple vagueness or silence” (CB 82.3); 

    -his “low profile” (CB 82.5); 

    -that he has “exaggerated or fabricated” that threat (CB 82.6); 

    -did “not believe the applicant's claim about the scam”  

    -did “not believe the false case claim” (CB 84.2)

    -the “inadequacies and inconsistencies of the applicant's claims and the way they were presented” (CB 84.9)

    and saw as all leading to a conclusion that the applicant did not and does not have a genuine fear of Convention related persecution.

  15. The Tribunal also found that in relation to his claims regarding the BNP association, that even though it did not believe the applicant and that he had exaggerated and fabricated the threat and found that he had a low political profile, that nonetheless he would be able to relocate elsewhere in his country (see CB 83.3). 

  16. In relation to the “scam”, the Tribunal did not believe the applicant's claim but said at 83.8:

    “However if I am wrong and the scam claim is true then I do not see it as Convention related because it is clear that the essential and significant motivation for the scamsters to seek out the applicant is not because of his or their political opinion but simply because he has exposed the scam.”

  17. In relation to the claim that a false case had been made out against the applicant, the Tribunal looked at the alternative, if the Tribunal's finding that it did not believe the applicant's claim, was wrong. Again the Tribunal found that this claim was not Convention related, and found in any event that the judicial system would provide justice to him (CB 84.3). 

  18. These findings, including the findings on credibility were all open to the Tribunal to make on the material before it, and are, of course, matters for the primary decision maker “par excellence”. In this regard the respondent's written submission refers me to McHugh J, in Re MIMIA; ex parte Durairajasingham (2000) 168 ALR 407 AT [67]. Also, even though detailed reasons are not required the Tribunal did give reasons for its findings made on the claims and material before it. The applicant’s claim that the Tribunal failed to take into account relevant legal issues is not particularised. But to the extent that this may be an attempt to argue a general failure to take into account relevant considerations, there is nothing before me to support this allegation. The Tribunal dealt with the applicant’s case as presented and dealt with each of his claims.

  19. The applicant has not raised matters, nor is there anything before me to show any error on the part of the Tribunal let alone jurisdictional error. The applicant's claims were discussed with him at the hearing and the applicant has brought no evidence to the contrary and before me today the applicant has been unable to show any error or jurisdictional error. On this basis this is a privative clause decision. The application to the Court was lodged well outside the time limit, of 28 days contained in s.477 of the Act. In fact, it was lodged well over 15 months after the date of notification (being 7 April 2003). The respondent's objection to competency must be upheld and the application to the Court is therefore dismissed.

    RECORDED:  NOT TRANSCRIBED

    ORDERS DELIVERED

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Katrina Samuel

Date:  14 February 2005

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