SZELD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1246

FEDERAL COURT OF AUSTRALIA

SZELD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1246

MIGRATION – appeal from a decision of the Federal Magistrates Court – failure to consider claim of bias in Refugee Review Tribunal – proceeding remitted for determination of that claim

SZELD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 663 reversed in part
Re Refugee Review Tribunal;Ex parte H (2001) 179 ALR 425, (2001) 75 ALJR 982 cited

SZELD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1002 OF 2005

GYLES J
22 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1002 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZELD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	22 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be upheld.

2.The order of the Federal Magistrates Court of Australia be set aside.

3.The proceeding be remitted to the Federal Magistrates Court of Australia for determination according to these reasons.

4.The respondent pay the costs of the appellant of this appeal.

5.The costs of the original proceedings before the Federal Magistrates Court of Australia await the result of the remitted hearing and be dealt with by that Court.

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	NSD 1002 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZELD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	22 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court of Australia (SZELD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 663) dismissing an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking to set aside the decision of the Refugee Review Tribunal (the Tribunal) which affirmed the decision of a delegate of the Minister to refuse to grant the appellant a protection visa pursuant to the Migration Act 1958 (Cth). The appellant is a citizen of India claiming a protection visa on the basis of, in effect, wrong attribution of political opinion, he having been unwittingly involved with a Muslim terrorist.

2. The Tribunal did not accept the credit of the appellant.  It regarded the story he told as inherently implausible and unsupported by any corroboration at all, notwithstanding ample opportunity to provide the corroboration including an adjournment of the Tribunal proceedings.  The learned Federal Magistrate considered the case and rejected all of the attacks upon the Tribunal's findings for reasons which, except in one respect, cannot be criticised.  The appeal to this Court has no substance save for that one matter.  The application to the Federal Magistrates Court included the following ground:

   ‘The way the Tribunal conducted investigation of this claim proves that this decision was premeditated.  It also reflects the Tribunal was narrow minded and bias.’

3. There was an amended application that was regarded by the learned Federal Magistrate as effectively adding other claims.  The reasons of the Federal Magistrates Court do not refer at any stage to the claim of bias.  In my opinion, that claim clearly fell for decision. 

4. Counsel for the Minister on this appeal submits that the decision of the High Court in Re Refugee Review Tribunal;Ex parte H (2001) 179 ALR 425, (2001) 75 ALJR 982 sets out the test for bias in these circumstances. When it is properly understood, this was simply a decision by the Tribunal as to the credit and credibility of the claims made, well within the jurisdiction of the Tribunal to make, and that no case for bias was made out. The difficulty with that submission is that the decision as to credibility which, on the face of it is quite open to the Tribunal, cannot stand if the decision was affected by actual or perceived bias. It is no answer to the claim for bias that the decision is within jurisdiction if not affected by bias.

5. Prima facie, where the Federal Magistrates Court does not deal with a point arising for decision, it is best that the matter be remitted to that Court to enable that consideration to take place.  That is particularly so in the case of a claim of actual or perceived bias as the judgment involved requires an examination in some detail of the nature of the case presented, the course of proceedings before the Tribunal and the reasons of the Tribunal.  It is undesirable that this Court on appeal should have to undertake that task in the first instance.  In the case of appeal from the Federal Magistrates Court, this Court will be comprised by a Full Court unless the Chief Justice decides otherwise.  But whether a Full Court is involved or not, it is not normally the task of this Court in this type of case to examine on appeal the relevant facts for the first time. 

6. Of course, there can be cases where the claim of bias is so obviously baseless that the judgment can be made on appeal without the necessity for return to the Federal Magistrates Court.  In my opinion, this is not such a case.  Without indicating any view at all to indicate that I think that the Tribunal was affected by bias, or that it would be so perceived, there are some aspects of the matter which will require close consideration.

7. In no particular order, firstly, there is reference by the Tribunal member to questioning the appellant about a letter written by his migration agent in which he had advised that the application had little chance of success.  Next, it appears that the Tribunal asked the appellant why his application for a visa to the USA had been refused in 1999.  I can find no reference to this in the supporting material and counsel for the Minister could not assist me.  Lastly, in its findings and reasons the Tribunal referred to the fact that the appellant did not repeat various claims to the Tribunal and referred to the meagre oral testimony which he provided.  The Tribunal's own account of the proceedings before it indicated that on more than one occasion the appellant had confirmed the information in his primary visa application and his statutory declaration.  There was no occasion for the appellant to do more than that.  Furthermore, the nature of the oral testimony was essentially a matter for the Tribunal which is, of course, an inquisitorial body.  I need say no more than that.  The issue will require consideration of all the relevant facts by the Federal Magistrates Court.  Of course, it may be that amongst those facts is the apparent strength or otherwise of the case, but I say no more about that.

8. With some regret I feel compelled to uphold the appeal.  I set aside the order of the Federal Magistrates Court.  I remit the proceeding to the Federal Magistrates Court for determination according to these reasons.  The respondent is to pay the appellant's costs of this appeal. Costs of the original proceeding before the Federal Magistrates Court should await the result of the remitted hearing. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             5 September 2005

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	J Mitchell
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 August 2005
Date of Judgment:	22 August 2005