FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSMD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2304 |
| Catchwords: MIGRATION – Application seeking review of Refugee Review Tribunal decision – refusal to grant applicant a Protection (Class XA) visa – allegation of apprehended bias on the part of Tribunal Member – relevant principles – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5E, 91X, 420, 424A, 474 |
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- Case
- [2014] FCCA 2304
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included whether the RRT's conduct and conclusions gave rise to a reasonable apprehension of bias, preventing it from making an effective decision. Specifically, the applicant contended that the RRT was unreasonably committed to a pre-formed conclusion, refusing to accept the applicant's account of detention and rape by prison guards, and disregarding country information that contradicted its findings on housing demolition. Further issues involved whether the RRT asked itself the wrong question by focusing on independent verification of sexual assault and land acquisition rather than the objective test of a "well-founded fear" of persecution. The applicant also argued that the RRT breached procedural fairness under section 420 of the Migration Act by denying the applicant the opportunity to be heard on adverse findings, particularly concerning its own inquiries into the applicant's assertions about sexual assault, land acquisition, and bride price. Finally, the applicant alleged a breach of section 424A of the Migration Act due to the RRT making adverse findings based on its own inquiries without informing the applicant.
Lloyd-Jones J considered the applicant's grounds of appeal, which centred on the RRT's alleged bias and failure to afford procedural fairness. The Court examined whether the RRT's approach, particularly its insistence on independent verification and its apparent pre-judgment of the applicant's claims, demonstrated a closed mind, referencing the principles in *Minister for Immigration v Jia*. The Court also analysed whether the RRT's focus on objective proof of specific events, rather than the applicant's subjective fear, constituted a jurisdictional error. The application of section 420 and 424A required the Court to determine if the RRT had made adverse findings based on its own investigations without providing the applicant an opportunity to respond, thereby denying procedural fairness.
The judgment of Lloyd-Jones J is not fully detailed in the provided text, but the grounds of appeal indicate that the applicant sought a declaration that the RRT's decision was not protected by section 474 of the Migration Act due to bias and jurisdictional error, and that the RRT breached procedural fairness.
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
The grounds of the Further Amended Application are as follows:1. The Applicant appeals against or in the alternative seeks a declaration as specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 11 December 2012.Particularsi. Section 5Eii. Transcript to be particularised in submissions 14 days in advance of hearing.2. The Tribunal’s conduct of proceedings and conclusion was such that a reasonable person would apprehend them to be encumbered by bias, and was thus not an effective decision that is protected by Section 474. Particularsi. The Tribunal, “come what may” refused to accept that the Applicant had been held in detention and raped by prison guards whilst they were under the influence of alcohol. See decision record generally, and especially paragraphs 60, 70, 71, 72, 73, 74.ii. The general finding of the Tribunal indicates on the balance of reasonableness that it was “so committed to a conclusion already formed as to be incapable of alternation, or of being persuaded differently, whatever evidence or argument may be presented (Minister for Immigration V Jia (2001) 205 CLR 507). See decision generally and especially 60, 70-74, 75 and 76. See also paragraph 62 and following, whereby the Tribunal accepted the Applicant’s “general knowledge” to determine her nationality, but not as “support” of anything else.iii. The Tribunal’s findings regarding the Tribunal’s assertion as to the unlikelihood of forcible and wide spread demolition of housing are at variance with all country information and all knowledgeable research. The Tribunal disregarded the information put before it, other than “country information” provided by a website that the Tribunal itself acknowledges is conducted by the PRC Government. See decision generally and paragraph 61.iv. Transcript to be particularised in submission 14 days in advance of hearing3. The Tribunal asked itself the wrong question and thus did not arrive at an effective decision that is protected by Section 474. Particularsi. See the Decision generally, and evidence and submissions.ii. The Tribunal had regard, not to the objective test of whether or not there was a “well founded fear” of persecution on the part of the Applicant, but on whether or not she could obtain independent verification of sexual assault whilst in prison, and government confirmation of land acquisitions perpetrated by that same Government.iii. The Tribunal held to the Applicant’s disadvantage, that she had attempted to lobby government agencies before fleeing.4. The Tribunal breached Section 420 and made a jurisdictional error by denying the applicant procedural fairness by reason of there being a reasonable apprehension of bias.Particularsi. See requirements as to verification and all other grounds above, and failure to give the Applicant the “benefit of the doubt” i. See approach generally “to not believe” in the absence of verification as to sexual assault and compulsory acquisition of land, and finding as to bride pride with giving the Applicant an opportunity to rebut.ii. Transcript to be particularised in submissions 14 days in advance of hearing.5. The Tribunal breached Section 424A.Particularsi. The Tribunal made a finding as to its “disbelief” as to the bride price asserted in sworn evidence after having made its own enquiries. It failed to inform the Applicant that it had done so or that it may make findings adverse to the Applicant based on such “information”, thereby rendering it impossible for the Applicant to be heard in advance of that finding.ii. The Tribunal made a finding to the effect that it “disbelieved” the evidence as to compulsory land acquisition after having made its own enquiries. It failed to inform the Applicant that it had done so or that it may make findings adverse to the Applicant based on such “information”, thereby rendering it impossible for the Applicant to be heard in advance of that finding.iii. Transcript to be particularised in submissions 14 days in advance of hearing.