SZTMH v Minister for Immigration and Border Protection

The appeal was brought by the appellant, a citizen of China, against the decision of the Federal Circuit Court of Australia that dismissed his application for judicial review of the decision of the Refugee Review Tribunal to refuse his application for a protection visa. The appellant sought to challenge the Tribunal's refusal to accept facts that were obvious to him, including the similarities between the Catholic Church in Australia and the underground Catholic church in China. The appellant also contended that the Tribunal was predisposed to refuse his application, thereby denying him procedural fairness, and that the Tribunal's decision was encumbered by characteristics that would lead a reasonable person to apprehend bias.

The primary issue before the court was whether the Tribunal's decision was affected by apprehended bias, which would render the decision unlawful. The court considered the appellant's allegations of bias, including the Tribunal's questioning of the appellant about his religious beliefs and activities, the Tribunal's reliance on US reports for country information, and the Tribunal's assessment of the appellant's likelihood of suffering harm in Fujian province. The court found that the Tribunal's assessment of the appellant's likelihood of suffering harm in Fujian province was appropriate, as it was reasonable to infer that the appellant would return there if he were to go back to China. The court also found that the Tribunal's use of country information sourced from US reports was appropriate, as the Tribunal was required to rely on reputable country information to establish the risk of harm to the appellant in his home province.

The court concluded that the record did not support a finding of apprehended bias, and that the appellant failed to establish jurisdictional error. Therefore, the primary judge dismissed the appellant's application for review. The appellant appealed the decision, raising additional grounds of appeal based on the judgment of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, which was delivered after the Circuit Court's judgment. The court granted the appellant leave to rely on the grounds based on WZAPN as those grounds were not raised before the primary judge. However, the court found that the grounds based on WZAPN did not have a reasonable prospect of success, as the court was not persuaded that the Tribunal failed to apply the correct test when assessing whether the appellant was at risk of serious harm within the meaning of s 91R of the Migration Act 1958 (Cth).

The court dismissed the appeal and ordered the appellant to pay the first respondent's costs of the appeal. The court found that the appeal had no reasonable prospect of success, as one ground had a reasonable prospect of success, but the remaining grounds had no reasonable prospect of success. The court did not find that s 486E of the Migration Act 1958 (Cth) was contravened, as the appeal had a reasonable prospect of success on one ground.