SZRBA v Minister for Immigration - [2013] FCCA 1361

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRBA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1361

Catchwords:
MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Reviewer’s reasons for recommendation repeated passages used in earlier reasons in similar matters – allegation that the Reviewer was biased or that a reasonable observer might have apprehended the possibility that he was.

Legislation:
Migration Act 1958, ss.36, 46A, 91R, 195A

Applicant:

SZRBA

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 55 of 2012

Judgment of:

Judge Cameron

Hearing dates:

14 June 2012, 22 August 2012

Date of Last Submission:

25 September 2012

Delivered at:

Sydney

Delivered on:

24 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr S.J. Burchett

Solicitors for the Applicant:

Carroll & O’Dea Lawyers

Counsel for the First Respondent:

Mr H.P.T. Bevan

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 55 of 2012

SZRBA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 1 May 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 16 October 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 21 December 2010 an officer in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 1361
Decision Date: 24 September 2013

CaseChat Overview and Summary

The applicant, SZRBA, sought judicial review of a recommendation made by an independent merits reviewer that the applicant not be recognised as a person to whom Australia has protection obligations. The dispute concerned allegations of bias on the part of the reviewer. The matter came before Judge Cameron of the Federal Court of Australia.

The central legal issue before the Court was whether the reviewer's reasons for making the recommendation were tainted by bias, or whether a reasonable observer might have apprehended the possibility of such bias. This arose from the reviewer's practice of repeating passages from earlier reasons in similar matters when formulating the current recommendation.

Judge Cameron considered the principles of apprehended bias, which require a consideration of whether a fair-minded lay observer, having considered the facts, would apprehend that the reviewer might not bring an impartial mind to the decision. The Court found that the repetition of identical or near-identical passages in reasons for decision in different cases, without specific adaptation to the facts of the particular case under review, could lead a reasonable observer to apprehend bias. This was because it suggested a predetermined outcome or a failure to engage with the specific evidence and arguments presented by the applicant in their matter. The Court concluded that the reviewer's reasons did not demonstrate a proper engagement with the applicant's case, and therefore, the recommendation was vitiated by apprehended bias.

The Court ordered that the recommendation made by the independent merits reviewer be set aside.

Orders