SZSJM v Minister for Immigration and Border Protection
[2013] FCA 1260
•22 November 2013
FEDERAL COURT OF AUSTRALIA
SZSJM v Minister for Immigration and Border Protection [2013] FCA 1260
Citation: SZSJM v Minister for Immigration and Border Protection [2013] FCA 1260 Appeal from: SZSJM v Minister for Immigration & Anor [2013] FCCA 561 Parties: SZSJM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1026 of 2013 Judge: KATZMANN J Date of judgment: 22 November 2013 Legislation: Migration Act 1958 (Cth) ss 91R, s 476A(2)(a), 476(4)(a) Date of hearing: 22 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant appeared in person. Solicitor for the First Respondent: Ms M Stone of DLA Piper Solicitor for the Second Respondent: The Second Respondent filed a submitting appearance.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1026 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSJM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
22 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The title of the first respondent be amended to “Minister for Immigration and Border Protection”.
2.The appeal be dismissed.
3.The applicant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1026 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSJM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE:
22 NOVEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of the People’s Republic of China. She applied for a protection visa shortly after she arrived in Australia, claiming to fear persecution in China because she had violated the country’s one-child policy and had been forced to have an abortion. The application was refused by a delegate of the Minister and her application to have the delegate’s decision overturned on review by the Refugee Review Tribunal was also unsuccessful. She then applied for judicial review in the Federal Circuit Court of Australia but the court was not persuaded that the tribunal’s decision was affected by jurisdictional error. In the result, her application for judicial review was dismissed. She now appeals to this Court.
In her notice of appeal the appellant pleaded that the primary judge erred by failing to find first, that the Departmental case officer treated her unfairly and secondly, that the tribunal failed to take her claim into account “according to s 91R of the Migration Act 1958 [(Cth)] because the tribunal member was biased against [her]”. These contentions are not particularised and the appellant filed no submissions in support of her appeal. Nor did she advance any argument at the hearing to substantiate them.
Neither contention is made out.
The first ground can be disposed of shortly. The primary judge correctly found that he had no jurisdiction to review the actions of the Department where the tribunal had conducted a review. That is the effect of s 476A(2)(a) of the Migration Act, the delegate’s decision being a “primary decision” within the meaning of s 476(4)(a).
As for the second ground, the claim of bias was not directly made in the court below. There, the appellant alleged that the tribunal had treated her unfairly and that she had been discriminated against. It is, of course, conceivable that bound up in the allegation of unfair treatment was a claim of bias but nothing in the primary judge’s reasons suggests that this was the way the case was argued below. It appears, at least, that his Honour took the appellant to be complaining about the tribunal hearing being conducted in her absence.
The tribunal issued an invitation to the appellant to attend a hearing, but she failed to appear at the appointed place on the appointed date. There was apparently no explanation for her non-appearance and nothing before the tribunal to suggest she was ill. In the circumstances, having satisfied itself that the invitation had been sent to the appellant’s most recently advised address, the tribunal proceeded to determine the case in her absence. This is a course the tribunal was entitled (though not obliged) to follow: Migration Act, s 426A. In its decision record the tribunal set out the appellant’s statement in support of her visa application, noted that it was for her to make out her case and found that her claims were lacking in essential detail. On the limited material it had, the tribunal was not satisfied that she was entitled to the visa. That in itself does not denote bias.
Allegations of actual bias must be clearly made and strictly proved. Here, the species of bias was not identified, nor the reason behind the allegation. The appellant offered no evidence of actual bias either in the court below or in this Court and there was no material to suggest that a fair-minded lay observer might reasonably apprehend that the tribunal might not bring an impartial mind to the resolution of the issues so as to make out a claim of ostensible bias.
The only matter the appellant raised in argument, when invited to speak in support of her appeal, was that she did not receive the tribunal’s letter until after the hearing. When I asked her what relevance that had to the issues on the appeal, she replied “nothing significant”.
The appellant made the same complaint to the federal magistrate. His Honour satisfied himself that the appellant was taken to have received the letter within the period prescribed for the purposes of the Migration Act and that the tribunal was entitled in the circumstances to hear and determine the appeal. His Honour’s reasoning discloses no error. Indeed, I am satisfied he was correct.
For these reasons the appeal must be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 26 November 2013
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