SZHDU v Minister for Immigration

[2006] FMCA 830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 830

MIGRATION – Refugee – Falun Gong – failure to attend Tribunal hearing – impermissible merits review – no reasonable cause of action – application dismissed.

Migration Act 1958, ss.36(2), 65, 66(4), 474(2), 494D
Federal Magistrates Court Rules 2001, Rule 13.10(a)

Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 677
Xie v Immigration Department [1999] FCA 365
Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708
Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Yo Han Chung vUniversity of Sydney and Ors (2002) FCA 186
Kosi vMinister for Immigration [2003] FMCA 340
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119
VEAN of 2002 v Minister for Immigration (2003 ) 133 FCR 570
Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294
Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58
SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549
Twist v Randwick Municipal Council (1976) 136 CLR 106
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal Ex parte H [2001] HCA 28
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142

Applicant: SZHDU

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2659 of 2005

Judgment of: Nicholls FM

Hearing date: 26 May 2006

Date of Last Submission: 22 May 2006

Delivered at: Sydney

Delivered on: 26 May 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. E. Warner Knight

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed in upholding the respondent’s Notice of Motion pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.

2. The applicant to pay the first respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2659 of 2005

SZHDU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me an application filed in this Court on 21 September 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) (the Tribunal was joined as the second respondent at the first Court date in this matter) made on 10 August 2005, which affirmed the decision of a delegate of the respondent Minister made on 8 April 2005 to refuse a protection visa to the applicant.

2. This matter came on before me by way of Notice of Motion filed by the respondent on 31 March 2006 seeking that the application be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (“the Rules”) on the ground that no reasonable cause of action is disclosed in relation to the proceeding or claim for relief. In support of the Notice of Motion the respondent filed the affidavit, with annexures, of Elizabeth Warner Knight, a solicitor in the employ of the respondent Minister's solicitors, affirmed on 28 March 2006, for which leave was granted. I also have before me the respondent's written submissions filed on 23 May 2006.

3. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 15 November 2004 and applied for a protection visa on 24 November 2004. This was refused by a delegate of the respondent Minister. The applicant sought review by the Tribunal of that decision on 21 April 2005. I note relevantly, that the applicant had advised the Tribunal by way of his application that he had engaged a migration agent and nominated the agent to act for him in relation to his application for review (Court Book (“CB”) 56).  However, he did not nominate the adviser as the authorised recipient for correspondence. The applicant further advised of his mailing address to which correspondence in relation to his application should be sent, and this was given as the address of his agent (CB 57.2). The applicant’s claims are contained in the material that he had submitted in both the application for a protection visa (see CB 1 to CB 37). He made no claims in the application for review (CB 55 to CB 59) beyond a reference to the delegate’s decision.

4. The applicant’s claims to protection derive from his claim to be a Falun Gong practitioner in China. He claimed that prior to leaving China he was detained, tortured, lost his employment and was forced to live “in different place in different days since November 2002 with no fixed place”. He also claimed that he decided to leave China because of his experiences at the hands of the Chinese authorities arising out of his claimed involvement with Falun Gong.

5. The Tribunal:

   1)Wrote to the applicant by letter dated 22 April 2005, sent to his address for service (CB 60 to CB 61).  The letter explained the process by which the Tribunal proposed to review his application.  Relevantly, the letter explained the importance and the opportunity afforded to the applicant of attending a hearing before the Tribunal if he was invited to do so.  The letter also advised that the Tribunal expected the applicant to “immediately” send any documents, information or other evidence he wanted the Tribunal to consider.

   2)Wrote to the applicant's migration agent by letter dated 22 April 2005 (CB 62), providing the opportunity for the applicant to nominate the agent as the authorised recipient for correspondence. The applicant subsequently made this nomination (CB 63).

   3)On 17 May 2005, received a number of photographs (copied at CB 65 to CB 67) in an envelope indicating that they were sent from the migration agent's/authorised recipient's address (CB 64).  No explanation or covering letter appears to have been received by the Tribunal. However I note relevantly, that the envelope at CB 64 bears the relevant Tribunal file reference. 

   4)Wrote to the applicant by letter (sent to the applicant's authorised recipient by registered post) dated 13 July 2005, advising that it had considered all the material before it, but was unable to make a favourable decision on that information alone (CB 69 to CB 70). The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 5 August 2004 at 12:30 p.m. The letter advised that if he did not attend the hearing, and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

   I note that:

   1)On 28 July 2005 the applicant responded to the invitation by facsimile indicating that he wished to attend the hearing on the arranged date (CB 71). 

   2)However, on 4 August 2005, the applicant’s migration agent notified the Tribunal by facsimile communication (CB 72) that the applicant would not be attending the hearing.

   3)On 5 August 2005 at 12:10 p.m. the Tribunal received another facsimile from the applicant’s migration agent advising that the applicant would not be able to attend the hearing as he would be interstate, and requested that the hearing be rescheduled to September 2005 (CB 73). 

   4)On 8 August 2005 the Tribunal again wrote to the applicant (through his authorised recipient) advising that it had agreed to the request for another hearing date and invited the applicant to a hearing on 17 August 2005 (CB 76 to CB 77). 

   5)On 9 August 2005 the applicant’s migration agent sent a completed “Response to Hearing Invitation” form by facsimile (CB 78) to the Tribunal which advised that the applicant did not wish to give oral evidence, and consented to the Tribunal making a decision without taking any further action to enable him to appear before it.

6. The Tribunal's decision record is reproduced at CB 82 to CB 89. In its “Findings and Reasons” at CB 87.5 to CB 89.4 the Tribunal found that:

   1)It was required to determine whether the applicant had a well founded fear of persecution for a (Refugee) Convention reason.

   2)The applicant had been informed that the Tribunal was unable to accept his claims on the basis of the material before it, and he was offered the opportunity (to attend the hearing) to give evidence and make submissions, yet he had not availed himself of that opportunity.  

   3)The applicant had been given notice by the delegate's decision of the deficiencies in his evidence.

   4)There were a number of issues requiring more detailed evidence, as on what was before it, the Tribunal could not be satisfied that he held a genuine fear of persecution or that any such fear was well founded.

   5)Particularly, the applicant did not provide sufficient evidence to support his assertion that he was a Falun Gong practitioner and without the opportunity to question him, it could not make relevant findings in his favour.

   6)It could not accept that the applicant had a well founded fear of persecution for a Convention reason should he return to China.

7. In his application before me now the applicant puts forward as the grounds of the application:

   “1.Error of law in my operation processing by Department of Immigration.

   2.RRT did not have all my evidences before they did the decision. Some photos I will provide you soon.

   3.Everyone know I will be in jeal if I go back China now.”  

   No particulars whatsoever are provided in support of these grounds.

8. I note relevantly from the Court's file, and from the evidence in the affidavit of Elizabeth Warner Knight, that:

   1)The applicant attended at the first Court date in this matter before a Registrar of this Court on 20 October 2005 and was assisted by an interpreter in the Mandarin language. 

   2)Orders were made (by consent) that, amongst other things, the applicant file and serve any additional evidence and any amended application with complete particulars by 6 January 2006.

   3)On that date the applicant advised that he wanted to participate in the Court's Legal Advice Scheme.  A lawyer on the panel of the scheme was appointed.  The Court wrote to the lawyer, and relevantly to the applicant, advising of the need for an amended application to be filed by 6 January 2006.

   4)On 19 December 2005 the respondent's solicitors sent the bundle of relevant documents to the panel lawyer.

   5)In the Court file, in a letter that I showed to the applicant before me today dated 10 February 2006, the panel lawyer advised that he had been unable to contact the applicant and stated that “having sent a letter and noting his mobile phone is always switched off”, no legal advice was provided. 

   6)The applicant had already filed an amended application.

9. The applicant’s amended application, filed on 22 December 2005, contains the following grounds:

   “1.Error of law (section 494D) in my application processing by DIMIA.

   2.RRT did not have all my evidence before they did the decision. They just follow DIMIA decision.

   3.     I will provide some photos to the Court.

   4.     Everyone know I will be in jeal if I go back China now.

   5.DIMIA and RRT did not consider the difficult on me to collect new evidence from China and they did not provided substantial evidence before they did the decision.

   6.     I think RRT and DIMIA had jurisdiction errors.”

10. At the hearing before me the applicant was unrepresented. He appeared with the assistance of an interpreter in the Mandarin language. Ms. Warner Knight appeared for the respondents and pressed the Notice of Motion. The applicant made a number of statements to the Court.  Relevantly, I note that these were statements from the Bar table and not provided to the Court in any evidentiary context.

    1)First, the applicant asserted that he had received a letter from the Tribunal on 13 July 2005 and this was a reference to inviting the applicant to a hearing.  The applicant's complaint, with which I will deal below, was that the Tribunal had, in effect, already made up its mind at that point to refuse his application.

    2)Second, the applicant stated that ultimately it was his migration agent who made the decision for him not to go to the hearing, and made statements that he had been sick. Again, I reminded the applicant of the need for him to put any relevant matters to the Court in an appropriate evidentiary context and that the Registrar had provided such an opportunity to him.  But in any event, to the extent that the applicant now sought to put to the Court that the failure to attend the hearing before the Tribunal was either at the action, instigation or advice of his migration agent, this is of course a matter between the applicant and the migration agent on what has been presented before me, would not form the basis of any ground to show jurisdictional error on the part of the Tribunal.

    3)I should just note that I reminded the applicant that if he now had a complaint about his agent’s conduct, that there was an appropriate authority to which any such complaint could or should be directed, but that on what was before me any such complaint does not serve to show jurisdictional error on the part of the Tribunal.

    4)This also applies to the applicant's request that the Court intervene and remit the matter to the Tribunal on humanitarian grounds because he had been “sick in Melbourne”. He appeared to imply that this also was the reason that he was unable to attend the hearing. Again, no evidence of this has been provided to the Court, but in any event, and importantly, there is no evidence before the Court now that this inability to attend was ever put to the Tribunal and that the Tribunal ignored such an issue. 

11. I should deal with one matter that arose during the course of the hearing.  The applicant claimed that he had not received a copy of the court book from the respondent.  In this regard, the applicant could provide no explanation.  I took into and marked as Respondent's Exhibit 1 (“RE1”), a copy of a letter tendered by Ms. Warne Knight, dated 17 November 2005, showing that the bundle of relevant documents was sent to the applicant at what he confirmed was his address for service and residential address.  But in any event, I adjourned the proceedings to enable the applicant, with the assistance of an interpreter in the Mandarin language, to go through the material in the court book. In any event, this was largely material known to the applicant as it contained his applications to the Minister's Department, to the Tribunal, various correspondences (including correspondence from his migration agent), and of course the Tribunal's decision. I did not see it as necessary in this regard, for any further opportunity to be provided to the applicant in all the circumstances.

12. I accept the respondent’s written submissions that the applicant’s application does not disclose a reasonable cause of action. For the applicant's benefit, I note that an application for summary dismissal should be approached with some caution, and that an order summarily dismissing proceedings on the basis that the application for review fails to disclose a reasonable cause of action should only be made where there is no real question to be tried or where the claims are clearly untenable and cannot succeed: Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 677 at [1] per Selway J., Xie v Immigration Department [1999] FCA 365 at [20] per Carr J. and Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708 per Finn J. at [3]-[6]. I also note Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 per Drummond J., at 468:

    “A complainant must therefore have at the outset of the inquiry into his complaint sufficient material … to show that he has more than a remote possibility of a well-founded claim, if he is to defeat an application for the summary dismissal of the case that can be made at the start of the inquiry.”

13. For the applicant to ultimately succeed in his application, he would need to show that the Tribunal's decision is infected with jurisdictional error. The applicant's originating application and amended application to this Court do not identify any grounds by which it could be said that the Tribunal decision was affected by jurisdictional error. In essence the application[s] focus on the merits of the applicant's claims before the Tribunal. The Court does not have jurisdiction to conduct a review of the merits; (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). But of course the issue before me today is whether the application before me discloses any reasonable cause of action such that it should be permitted to go through to a final hearing and the issue of whether it would be futile to allow it to do so or not.

14. Further, in circumstances where an applicant is unrepresented, it has been held that a Court should independently consider whether an arguable case, based on the material, could be made out by the applicant: Yo Han Chung vUniversity of Sydney and Ors (2002) FCA 186, also Kosi vMinister for Immigration [2003] FMCA 340. I accept the respondent’s submissions that no arguable case can be made out on the material before me. Further, I accept that the findings made by the Tribunal were open to it on the material and circumstances before it.

15. The relevant statutory requirements, s.65 and s.36(2) of the Act, provide that a protection visa must only be granted if the decision maker is satisfied that the person applying for the protection visa relevantly satisfies the requirements as set out in s.36(2) and meets the definition of refugees contained in Article 1A(2) of the Refugees Convention. On what was put before the Tribunal, it could not be satisfied that the applicant met the requisite criterion for the grant of a protection visa. No jurisdictional error is revealed merely because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied as to the applicable criteria (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [77]).

16. Further, I note that in similar circumstances where an applicant failed to appear before the Tribunal in the face of a letter as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of the claims. The applicant did not attend. The applicant cannot now complain that the Tribunal was not able to be satisfied as to the matters that it needed to be so satisfied before a protection visa could be granted.

1. Relevantly, I note the respondent’s reference to SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 per Allsop J. at [29]:

   “[t]he reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited”. 

2. In the Full Federal Court decision of NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119, which I am bound by, the Court held at [57]-[61] that it was not enough for an application to recite familiar heads of jurisdictional error if those grounds are plainly untenable.

   “In the context of a failure to take up the invitation to explicate the claims, it was entirely legitimate to describe the claims as "vague and unsubstantiated". In the context in which the words were used, they do not betray any failure of the Tribunal to appreciate and take into account the claims (or any of them) of the (absent) applicant… 58 The statement by the Tribunal that the appellant had not described "how and when he joined and how he came to the adverse attention of the authorities" was clearly, from what follows in the reasons, a summary of the doubts entertained which caused the Tribunal to write to the appellant to invite him to a hearing. They betray no failure to attend to the claims of the appellant, which, from the balance of the reasons, were plainly taken into account… 59 In these circumstances, the application to this Court was plainly untenable… 60 The application asserted a formulated ground which, in terms, amounted to an assertion of a recognised head of jurisdictional error. That may be sufficient to avoid the operation of Order 20 rule 2(1)(a) as the basis for summary dismissal, that no reasonable cause of action was disclosed… 61 Order 20 rule 2 is not, however, limited to applications or other documentation (whether by way of pleading or application), which do not, on their face, disclose assertions of recognised bases for relief. If, as here, the assertion of a recognised head of jurisdictional error is plainly untenable and unarguably doomed to fail, the written statement of a ground of jurisdictional error will not prevent summary disposal.”

3. The applicant's first ground of complaint in the amended application (expanding slightly on the first ground in the originating application) asserts an error of law in the processing of his application by the Minister's Department. The reference to s.494D of the Act may suggest some complaint about the Minister's communication with, or through, the applicant's authorised recipient. This could be seen as a complaint that the letter from the Minister's delegate notifying the refusal of the application for a protection visa (CB 38 to CB 39) was incorrectly addressed, perhaps in the manner found by the Full Federal Court in VEAN of 2002 v Minister for Immigration (2003 ) 133 FCR 570. The letter here was addressed to the applicant and not the authorised recipient, even though it was sent to the authorised recipient's address. However, I note that any defect or failure in the notification of the delegate's decision would not affect the validity of the decision (see s.66(4) of the Act). Nor did any such failure prevent the making of the application for review.

4. In any event, whatever the complaint of error on the part of the Minister's delegate may be, this does not reveal error on the part of the Tribunal, which after all is the decision that the applicant has said is the subject of the application for review to this Court. 

5. But even if the applicant were to complain about the delegate's decision and any alleged defect, and I note in this regard grounds 1, 5 and 6, relevantly the Court would not hear a challenge to a primary decision where there has been a de novo review decision because the review decision “cured” the primary decision: Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294, per Wilcox J.:

   “The decision is invalid because the decision maker failed to take into account relevant matter, but the matter has already been reconsidered by a second decision maker empowered to make whatever decision would initially to have been made and who has taken into account relevant matter, the initial defect may reasonably be regarded as “cured”.”

6. In my view there is clear law that a Tribunal decision will “cure” a delegate’s decision. In Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 906 the Court said at [92]:

   “The decision in Alvaro (supra) makes it clear that sections such as s 415, which permit the review body to exercise all the powers and discretions that are conferred by the Act on the original decision-maker, and which provides for it to make its own decision on the merits, will cure many defects which may have rendered the original decision invalid. Once the jurisdiction of the review body (here, the RRT) is enlivened, the decision it makes supersedes the original decision, and the invalidity of the original decision is irrelevant. As Alvaro illustrates, the section permits discretions and powers to be exercised by the RRT which were never even considered by the original decision-maker. See, in a comparable setting; McDougall v Warringah Shire Council (1993) 30 NSWLR 258.”

   I also note and rely on the subsequent analysis at [93] to [96] inclusive.

7. There is further clear authority that Tribunals have the power to review and reconsider even legally invalid decisions as well as valid decisions of the Minister’s delegate: See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58. I also note Federal Magistrate Smith in SZGMZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1549, in particular at [23] and [24]. I have read that Judgement and with respect agree with what is set out at those paragraphs. In particular I note at [23]:

   “… In my opinion, the structure of decision-making under the Migration Act leaves the Minister and her delegates functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas under s.65, in circumstances where merits review has been sought and obtained under Pt.7 in relation to a protection visa application. An intention that the primary power should be regarded as exhausted in such a case is shown by the strict and mandatory time limits for seeking review, and by the absence of any power of reconsideration by the primary decision-maker.”

   I should just note here that the term “cured” has not been defined, but that the term has been adopted at the highest judicial levels.  In this regard I refer to Twist v Randwick Municipal Council (1976) 136 CLR 106 per Mason J. at [116]. To the extent that the applicant may seek to complain about the delegate's decision, such a decision, even infected with jurisdictional error, would be cured by the Tribunal's decision.

8. In the case before me, the applicant has had the opportunity to seek a de novo merits review.  That opportunity was taken up and the decision on review is now the very subject of these judicial proceedings.  It is that decision which needs to be examined. In all the circumstances it is clear that a Court would decline to give the relief sought by the applicant to the extent that he may be seeking to challenge any validity of the delegate's decision, on the ground that there would be no real purpose in doing so. So this complaint, to the extent that it can be discerned from grounds 1, 5 and 6, would clearly fail. There would be no utility in allowing the application before the Court now in this respect to continue.

9. The applicant's second ground is that the Tribunal did not have all his “evidence” before making the decision and it “just followed the DIMIA's decision”.  In relation to the first limb, that is that the Tribunal did not have all of the applicant's evidence before it, the Tribunal, in my view, gave the applicant every opportunity to present his evidence at a hearing which had been scheduled and on his request, rescheduled. There is nothing before me to show that it was not open to the Tribunal to proceed to make a decision on what was before it. Nor is there anything in the material to show that the Tribunal should further defer making its decision to enable the applicant to collect “new evidence” from China as is put forward at ground 5 of the amended application.  I cannot see that the Tribunal in this context rushed to a decision with any undue haste.  The application to it was made on

   
   

   21 April 2005.  The Tribunal, in writing, explained the process by which the review would be conducted.  The first invitation to a hearing was sent in July 2005 for a hearing on 5 August 2005 and this was rescheduled for 17 August 2005. On 9 August 2005, the applicant advised through his migration agent that he did not want to come to the hearing in circumstances where the purpose of the hearing had been advised.  He consented to the Tribunal proceeding to make a decision. There is nothing before me to show that the applicant or his migration agent put to the Tribunal any difficulty in obtaining evidence or that they sought any further adjournment for that purpose. This complaint also clearly cannot be made out. 

10. The second limb could be a complaint that the Tribunal did not bring an open or a fresh mind to the review, such as to ground a complaint that the Tribunal was biased, acted with bad faith or with the apprehension of bias. The applicant has been given the opportunity to put before the Court any evidence, which would include evidence of alleged bias, bad faith or apprehension of bias on the part of the Tribunal. For the applicant’s benefit I should at first note that an allegation that the Tribunal acted with bias is an extremely serious matter. Such allegations of bias, whether actual bias, or the apprehension of bias, must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more than just the conclusion reached by the Tribunal to support this claim. Also allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the applicant's claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872). Also, the application fails the test of establishing bad faith as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20] because the allegations of bad faith are not clearly alleged, no attempt at proof is offered and no personal fault or absence of honesty on the part of the decision maker has been made out. There is nothing before me to show that any such complaint could or would succeed.

11. The applicant’s third ground makes reference to “some photos”. While I noted that the applicant had brought photos or appeared to have brought some photos to the Court, despite opportunity, this matter was not pursued.  To the extent that this may refer to photos copied in the court book, as I have already said, these were sent to the Tribunal in circumstances where it appears they were sent by or through the applicant's migration agent. They were, on the best information available to the Court, placed on the Tribunal's file and would be encompassed in the Tribunal's consideration of the material that it said it had before it.  In any event, I note that the photos, again on the best evidence before the Court, were provided without any explanation or supporting documentation.

12. The applicant's fourth ground clearly does not rise above a request for impermissible merits review. This is of course a matter for the Tribunal and not a matter that the Court can entertain. 

13. Ultimately, on what is before me I cannot see that the applicant's application, even as amended or on any of the material before me, discloses any reasonable cause of action such that it should be tested at a final hearing. In my view, to do so would be futile. As no reasonable cause of action has been shown or is evident to the Court, I uphold the Minister's Notice of Motion and dismiss the applicant's application pursuant to Rule 13.10 of the Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 14 June 2006