SZIVC v Minister for Immigration and Citizenship
[2008] FCA 1727
•18 November 2008
FEDERAL COURT OF AUSTRALIA
SZIVC v Minister for Immigration & Citizenship [2008] FCA 1727
SZIVC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1121 of 2008
EDMONDS J
18 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1121 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZIVC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
18 NOVEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1121 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZIVC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
18 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from a judgment of the Federal Magistrates Court (Lloyd-Jones FM) given on 27 June 2008: SZIVC v Minister for Immigration & Anor [2008] FMCA 854. His Honour dismissed an application for constitutional writs in respect of a decision of the second respondent (‘the Tribunal’) dated 7 July 2007. The Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection visa.
BACKGROUND
The appellant is a citizen of China who arrived in Australia on 4 October 2005 and lodged an application for a protection visa on 17 November 2005. He claimed to fear persecution in China for reason of his religion, namely Taoism. On 15 December 2005, a delegate of the Minister refused to grant a protection visa to the appellant. On 16 January 2006, he applied to the Tribunal for review of that decision.
The Tribunal made a decision on 11 April 2006 affirming the delegate’s decision; however, this decision was set aside by this Court on appeal from The Federal Magistrates Court.
Upon remittal, the reconstituted Tribunal sent a copy of the first Tribunal’s decision to the appellant by letter dated 4 April 2007 indicating that it too may draw adverse conclusions for similar reasons. In response to that letter, the appellant sent a statutory declaration made by him to the Tribunal together with statutory declarations made by four members of Tien Dao. The appellant then attended a hearing conducted by the Tribunal on 6 June 2007 and gave evidence and presented arguments. The Tribunal handed down its decision on 16 August 2007 affirming the decision of the delegate.
TRIBUNAL’S DECISION
The Tribunal did not accept that the appellant was a member of, or even a believer in, Tien Dao and found that he had not participated in the sect in any of the ways he claimed. It rejected his claim to have been arrested and detained, and also that he was or continued to be of adverse interest to the police or Chinese authorities. It was not satisfied that any conduct in Australia was engaged in otherwise than for the purpose of strengthening his claim to be a refugee and so had no regard to it in accordance with s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’).
For those reasons, the Tribunal was not satisfied that the appellant met the criteria for the grant of a protection visa and affirmed the decision under review.
PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT
The appellant raised three grounds of review in the court below:
1.A breach of s 425 of the Act;
2.breach of s 424A; and
3.apprehension of bias.
In respect of the first ground, the appellant argued that the Tribunal had failed to raise three matters with him: its view of the statutory declarations made in support of his application; his identity card; and his motivation for joining a sect that was being ruthlessly oppressed. The court rejected the first of these, finding that the appellant was aware that the extent and nature of his practice of Tien Dao in both China and Australia was in issue (at [12]) and, in any event, the question was raised at the hearing (at [15]). The court found that the identity card was not critical to the Tribunal’s decision (at [19]) and that the Tribunal had put the appellant’s motivation to him for comment at the hearing (at [23]).
The s 424A ground also concerned the statutory declarations. His Honour found at [26], that the declarations fell within s 424A(3)(b) of the Act and gave rise to no obligation under s 424A(1). His Honour also found that the Tribunal’s findings in respect of the declarations were not ‘information’ within the meaning of s 424A (at [27]), and in light of the Tribunal’s conclusions concerning s 91R(3), the declarations were not the reason or part of the reason for its decision (at [28]).
The third ground also relied on the statutory declarations. However, his Honour found that the Tribunal’s consideration of them, taken in the context of the whole decision, did not support a finding of apprehended bias (at [30]).
NOTICE OF APPEAL TO THIS COURT
The appellant filed a Notice of Appeal in this Court on 17 July 2008. The Notice of Appeal is repetitive of the submissions filed in the court below and makes no attempt to identify any error in the judgment on appeal.
The first ground, breach of s 424A, is based upon the Tribunal’s consideration of the four statutory declarations as well as the identity card. There are three answers to this ground. First, any information concerning the statutory declarations was given by the appellant to the Tribunal and so is excluded from s 424A(1): s 424A(3)(b). Second, it is clear that the appellant argues that the Tribunal should have given him particulars of its views concerning the statutory declarations. The Tribunal’s views or thought processes are not information within the meaning of s 424A(1): SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]. Third, in respect of the identity card, the Tribunal relied on no ‘information’ to reject it; in fact, it came to no concluded view about it or the appellant’s true identity, and in any event, decided the application on other grounds. In other words, there was no ‘information’ relating to the card that the Tribunal considered would be the reason or part of the reason for its decision.
For these reasons, the court below was correct to find that there was no breach of s 424A of the Act.
The second ground is apprehended bias. The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41 at 70 – 71; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90 – 92; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 – 345; and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27] – [32]. Further, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws 170 CLR at 90; Ebner 205 CLR at 343; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 563 – 564. In light of this, it is important to take into account the whole of the review process, and the whole of the Tribunal’s reasons as well as the fact that those reasons are necessarily prepared at the end of the review.
This ground is based upon the assertion that a reasonably informed bystander might apprehend that the Tribunal might have been biased because it gave little weight to the statutory declarations without taking evidence from the makers of those declarations. This assertion pays insufficient attention to two critical matters: first, when the appellant was invited to a hearing by the second Tribunal, he was asked whether he wanted the Tribunal to take evidence from any other persons. In his response, he indicated that he did not. Second, one of the reasons the Tribunal gave no weight to the statutory declarations is that they were in almost identical form. That much is clear from the most cursory inspection of the statutory declarations which appear to be no more than boiler plates.
I agree with the submission of the Minister that the approach taken by the Tribunal was a reasonable one. This, taken together with the balance of the reasons for the Tribunal’s decision, does not in anyway support any reasonable apprehension of bias. His Honour was correct to reject this ground.
APPEAL HEARING
The appellant was unrepresented on the hearing of his appeal. He raised a matter not raised in his notice of appeal, namely, that the Tribunal had failed to consider an essential aspect of his claim. The aspect that the appellant said the Tribunal failed to consider was what might happen to a person involved in Tien Dao who returned to China. The Minister submitted that the Tribunal did not overlook this issue; indeed, it was pointed out that the Tribunal acknowledged ‘... that the treatment of some people involved in Tien Dao may involve serious harm and systematic and discriminatory conduct amounting to persecution’. However, the Minister further pointed out that the Tribunal was ‘… not satisfied, on the evidence before it, that the [appellant] was a member of Tien Dao or that he was even a believer in Tien Dao’, and that is the explanation why the issue was not directly considered in respect of the appellant. I agree.
CONCLUSION
The court below was correct to find that there was no jurisdictional error in the Tribunal’s decision and the appeal must 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 Justice Edmonds. Associate:
Dated: 18 November 2008
Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr J Smith Solicitor for the First Respondent: DLA Phillips Fox
Date of Hearing: 13 November 2008 Date of Judgment: 18 November 2008
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