SZMYI v Minister for Immigration and Citizenship

[2009] FCA 934

FEDERAL COURT OF AUSTRALIA

SZMYI v Minister for Immigration and Citizenship [2009] FCA 934

Migration Act 1958 (Cth) s 424

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 applied ; SZKLK v Minister for Immigration [2008] FCA 1125 cited ;

SZMYI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 678 of 2009

Logan J
18 August 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 678 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMYI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	18 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

the text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 678 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMYI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	18 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is a citizen of the Peoples’ Republic of China.  He came to Australia in January 2008.  The following month, on 11 February, he made application to the Department of Immigration and Citizenship for what is known as a protection visa under the Migration Act 1958 (Cth). On 14 May 2008 a delegate of the Minister for Immigration and Citizenship (Minister) decided to refuse that application. The Minister is the First Respondent to the appeal. There has been, as one might expect, no appearance by or on behalf of the named second respondent, the Refugee Review Tribunal (Tribunal). It was that Tribunal which came to consider the decision made by the Minister’s delegate. It did so upon the Appellant’s availing himself, as was his right, of the opportunity for external merits review of the Minister’s delegate’s decision by the Tribunal.

2. As it happened, the Tribunal decided to affirm the decision of the Minister’s delegate.  I will make some further observations in relation to the course of proceedings before the Tribunal shortly.  The Appellant then sought the judicial review of the Tribunal’s decision in the Federal Magistrates Court.  On 16 June this year the Federal Magistrates Court dismissed the judicial review application for reasons which were published that day.  It is from that decision that the Appellant appeals to this Court.  The grounds of appeal are as follows:

   1.The Refugee Review Tribunal had bias against me and did not make fair decision for my application.

   2.I lodged application to the Federal Magistrates Court to give my reasons why RRT is not fair but they ignored my application and the judge refused my application on my hearing date.  It is not fair.

   3.I believe that my application was not considered reasonably by the judge at the Federal Magistrates Court. [sic]

3. As can be seen, the grounds of appeal are tersely and generally stated indeed.  It may be said of ground 1 that it does not engage, as a ground of appeal to this Court should, with the error said to have been made by the Federal Magistrates Court.  Rather, in form, it invites this court to undertake an exercise of original jurisdiction in reviewing a decision of an administrative tribunal.  That misapprehends the nature of the jurisdiction that the Appellant has sought to invoke upon the lodgement of an appeal.  This notwithstanding, the Minister has, with respect very properly, treated ground 1 as an endeavour on the part of the Appellant to challenge the decision of the Federal Magistrates Court on the basis that that court ought to have concluded that the Tribunal was biased.

4. I shall consider each of the grounds of appeal in turn.

5. Even construed in the benign way in which, like the Minister, I consider ground 1 ought to be approached, it suffers from the vice of not highlighting whether the bias alleged is actual or apprehended and offers no particulars as to how either such conclusion is said to be open. 

6. In approaching whether there is any merit in this ground however viewed, it is convenient to detail something of the course of proceedings before the Tribunal.  Such detail is offered by the learned Federal Magistrate in her reasons for judgment at paras 19, 20, 21 and 22 from which I now quote:

   19.On 22 May 2008 the tribunal wrote to the applicant informing him that the tribunal had considered the material before it but was unable to make a favourable decision on that material alone.  The letter invited the applicant to attend a hearing on 27 June 2008 to give oral evidence and present arguments.

   20.On 27 June 2008, the applicant attended the hearing before the tribunal at which he gave evidence. 

   21.Following the hearing on 5 September 2008, the applicant provided the tribunal with a letter from Mr L. in support of his application.  The tribunal found the applicant’s application to be similar to that of Mr L., also an applicant before the Refugee Review Tribunal.  The tribunal invited the applicant to attend a further hearing on 8 October 2008 in order to explore its concerns with the applicant about, inter alia, the similarity of his claims to those of Mr L.  The tribunal note that the applicant said he may provide a statement from Mr L.  The tribunal gave the applicant a further two weeks to respond in writing. 

   22.On 31 October 2008, the applicant responded to the tribunal’s concerns and claimed not to have known Mr L. prior to arriving in Australia.

7. In the result, the Applicant’s statement with respect to his not knowing Mr L. prior to arriving in Australia, proved to be a significant one in terms of the Tribunal’s approach to the overall assessment of the Appellant’s credibility.  For reasons which the Tribunal sets out in the Tribunal’s reasons for decision, the Tribunal decided that this particular statement was not true: see in particular, para 78 and para 79 of the Tribunal’s reasons, especially the concluding sentence of para 79:

   The applicant’s denial that he knew [Mr L.] prior to his arrival in Australia leads the tribunal finds that the applicant is not a witness of credit [sic].

8. In turn, that particular conclusion, together with conclusions which the Tribunal reached concerning the Appellant’s claimed adherence in China to Christianity, led the Tribunal to reject the basis upon which the appellant had claimed a protection visa.  That was, in essence, a fear of persecution based on a claimed adherence to the Christian faith. 

9. I note that in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at para 69, it is observed in respect of a claim of actual bias, that such a claim must be “distinctly made and clearly proved”. There is no evidence which would support a claim of actual bias.

10. The course of proceedings before the Tribunal does not evidence a basis upon which one might apprehend that the tribunal was biased.  I had occasion in SZKLK v Minister for Immigration [2008] FCA 1125 to review various authorities in respect of an apprehended bias claim, and I shall not repeat what is there stated in that regard. It suffices to note that there must be some evidence upon which a reasonable bystander might conclude that the administrative decision-maker or Tribunal was biased even if, in fact, that decision-maker or Tribunal was not actually biased. Once again, the evidence as to the course of the proceedings before the Tribunal does not support such an apprehension. Neither does the Tribunal’s reasoning process as disclosed in the Tribunal’s published reasons support that.

11. There is no evidence of the transcript of proceedings before the Tribunal put forward on behalf of the Appellant.  That avenue therefore, by reference to which an apprehended bias case might, in some circumstances, be raised, is not open. 

12. In the court below, the learned Federal Magistrate was faced with the difficulty of grounds of review which were also, like the appeal grounds, generally and tersely stated.  Her Honour, in particular, was faced in ground 1 with an allegation that the Tribunal did not consider the Appellant’s application for review “fairly”.  Her Honour did not, in terms, address an allegation of unfairness constituted by bias, be it actual or apprehended, but that is hardly a basis for criticising her Honour’s decision given the generality of the ground of review.  What her Honour did conclude at para 48 of her reasons for judgment was that:

    A fair reading of the tribunal’s decision record makes clear that the tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the tribunal (re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at 67 per McHugh J).

13. That conclusion is inconsistent with a conclusion that the Tribunal’s reasons are tainted by an apprehension of bias.  Further, I respectfully agree with that particular assessment of the Tribunal’s decision. 

14. However one approaches the question of what was the embrace of the unfairness ground promoted before the Federal Magistrates Court, the end result is an absence of any evidence which would support error on the basis of apprehended, let alone actual, bias on the part of the Tribunal.  Rather, the motivation, as it seemed to emerge in the course of the Appellant’s oral submissions, for the allegation was that the Tribunal had made a decision with which the Appellant did not agree.  As the learned Federal Magistrate rightly observed at para 49 of her reasons for judgment, that complaint invites merits review which the Federal Magistrates Court cannot undertake and which, a fortiori, this Court cannot undertake on appeal. 

15. I therefore see no merit in ground 1. 

16. Ground 2 focuses not on the Tribunal but rather on the Federal Magistrates Court in terms of alleged unfairness. I find it impossible to see that the Federal Magistrates Court ignored the Appellant’s judicial review application. Instead, her Honour seems, with respect, to have gone out of her way to try and give content to generally stated grounds of review. Thus in the course of considering ground 1, and even though the section was not in terms mentioned in the judicial review application, her Honour has scrutinised the Tribunal’s process to see whether it entailed compliance with section 424 of the Act insofar as the Tribunal had sought a copy of the Appellant’s visitor visa file. It is unnecessary to pass upon her Honour’s consideration of that issue because whether there was an obligation arising under s 424 does not feature in the grounds of appeal. I mention it only to demonstrate that, by example, that her Honour has hardly ignored the application.

17. More generally, her Honour’s reasons for judgment disclose a comprehensive engagement by her with the grounds of review such as they were.  Thus, if one regards ground 2 of the grounds of appeal as a complaint that a particular ground of review was ignored in the court below, it has no merit. 

18. If one reads appeal ground 2 as a complaint of unfairness, the following discloses an absence of any merit.  Insofar as rules of procedural fairness required the affording to the Appellant of an opportunity to be heard before the Federal Magistrates Court, that requirement was patently met.  Insofar as the procedural fairness requirement extended to hearing by an impartial judicial officer affected not by either actual or an apprehension of bias, there can be no merit in such a contention.  The only evidence of proceedings before the Federal Magistrates Court reposes in the reasons for judgment, and they show a dispassionate treatment of the merits of the grounds of review.

19. Further, as I have already observed - and this is no criticism of the learned Federal Magistrate - her Honour has gone out of her way to try and give content to general grounds of review.  That is hardly the act of a judicial officer who might even be apprehended to be bias.  Rather, it is eloquent to the contrary.  I therefore dismiss ground 2. 

20. That leaves appeal ground 3 which, in effect, is a complaint about an absence of reasonable consideration of the judicial review application by the court below.  That adds nothing in content to ground 2.  I dismiss it for reasons already given. 

21. It follows from the above that the appeal must be dismissed. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       20 August 2009

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	18 August 2009
Date of Judgment:	18 August 2009