SZJQA v Minister for Immigration

[2007] FMCA 1414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1414

MIGRATION – Review of decision of the Refugee Review Tribunal – allegation of apprehension of bias – no material before the Court to support the allegation – no jurisdictional error – application dismissed.

Migration Act 1958, s.91R

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102

Applicant: SZJQA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3214 of 2006

Judgment of: Nicholls FM

Hearing date: 16 August 2007

Date of Last Submission: 16 August 2007

Delivered at: Sydney

Delivered on: 16 August 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms D Watson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application made to this Court on 2 November 2006 is dismissed.

3. The applicant to pay the first respondent’s costs in the sum of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3214 of 2006

SZJQA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. The sole ground of the application made to this Court on 2 November 2006 is that there is an apprehension of bias in relation first, to the manner in which the Tribunal conducted the review and second, in relation to the manner in which the Tribunal dealt with the applicant’s evidence at the hearing.

2. The relevant test for apprehension of bias is whether the well informed lay observer would reasonably apprehend that the Tribunal did not bring an open mind to the proceedings: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425.

3. There is no evidence before the Court to support the allegation of bias and for that reason I dismiss the application made to this Court on 2 November 2006.  In relation to the allegation of apprehension of bias there is, as is required by all the relevant authorities to which I have referred (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102), no evidence before this Court. The applicant has had an opportunity to put evidence before the Court and that opportunity was not taken up in the appropriate way and in the timely fashion in the more than reasonable time that was available to the applicant. I have rejected the request for an adjournment for the reasons given. Without evidence, a complaint of apprehension of bias in the Tribunal is simply not made out.

4. The application to the Court was clearly drafted with the assistance of solicitors. The allegation of an apprehension of bias was the sole ground in the application, but I should indicate that I have read the Tribunal’s decision. I note in particular the reference made earlier by Mr Turner, to the Tribunal’s treatment of s.91R(3) of the Migration Act 1958 (“the Act”).  On what is before the Court, I cannot discern any error, let alone jurisdictional error, in the way the Tribunal approached that issue, noting that the issue was specifically raised with the applicant and his advisor at the hearing.  Mr Turner stated that Mr Patel had briefed him on that issue, and the issue was the subject of subsequent submissions.  Whatever Mr Turner may have had in mind, on the material before me, I cannot discern any jurisdictional error, nor could I otherwise discern jurisdictional error on the part of the Tribunal.  For all these reasons, the application is therefore dismissed.

5. As to the issue of costs, I understand the applicant’s submission that he does not have funds.  Unfortunately, that does not assist the Court because a lack of funds is not a sufficient reason for the costs order not to be made.  In my view, it is not an issue of such a nature as would cause the Court not to make that order.  That is the first thing, so I will make a cost order.

6. Now as to the amount of such costs order, what I must look at is the work that has been done by the Minister’s solicitors and whether what is being sought is a reasonable amount in those circumstances.  Part of the work that has been done is clearly in preparing court books, in writing submissions to the Court, and in Ms Watson’s attendance here today, all of which is part of the costs that the respondent would have incurred.  Attendance on earlier occasions by the Minister’s solicitor at directions, and subsequent action by the Minister’s solicitors in obtaining consent from the applicant’s solicitors in working out the timetable by which the conduct of the case would proceed before the Court, are also expenses to which the Minister has been put.

7. It is clear also, and I accept Ms Watson’s submissions, that there would have been communications with solicitors, Parish Patience, in seeking to progress this matter, and in all the circumstances therefore, on what is before me, noting of course, that the Minister could have sought an amount of $5,000 pursuant to the relevant schedule to the Rules of this Court (which I only take as a guide by which I am not bound), but noting that the amount sought is well within the guideline amount, I am satisfied that it is a reasonable amount and will make the order in that amount.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Amy Douglas-Baker

Date:  4 September 2007