SZHVV v Minister for Immigration and Citizenship [2007] FCA 273

FEDERAL COURT OF AUSTRALIA

SZHVV v Minister for Immigration and Citizenship [2007] FCA 273 SZHVV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1976 OF 2006

JESSUP J

26 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1976 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHVV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J DATE OF ORDER: 26 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be added as the second respondent in the proceeding. 2. The name of the first respondent in the title to the proceeding be changed to Minister for Immigration and Citizenship. 3. The appeal be dismissed. 4. The appellant pay the first respondent's costs of the appeal fixed in the amount of $1,800. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1976 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHVV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 26 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 27 September 2006, dismissing the appellant's application for writs of prohibition, certiorari and mandamus directed to the respondent Minister and the Refugee Review Tribunal. The application arose out of a decision given by the Tribunal on 31 October 2005 by which it affirmed a decision of the delegate of the Minister to deny the appellant a protection visa under the Migration Act 1958 (Cth) ('the Act'). 2 Before the Federal Magistrate the appellant relied upon a single ground, namely, that the Tribunal failed to carry out its statutory duty. That ground was particularised in a way which made it clear that the appellant alleged that the Tribunal had failed to comply with s 424A of the Act. Those particulars appeared to assert that the Tribunal had relied upon information to affirm the decision of the delegate which had been obtained only from the appellant's protection visa application and had not been the subject of a note in writing to the appellant from the Tribunal as required by the section. The s 424A ground is the first of two substantive grounds relied on by the appellant in his appeal. 3 The appellant relied upon SAAP v Minister for Immigration and Multicultural and Ethnic Affairs (2005) 79 ALJR 1009, and he has repeated that reliance in his appeal before this court today. The Federal Magistrate dealt with that submission in the following terms (at [22]): Even in the context of the illumination provided by SZEEU v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ("SZEEU") as to what constitutes information for the purposes of s.424A I cannot see that the Tribunal relied on any information which carried with it an obligation to be put to the applicant in the manner set out in s.424A(2). I cannot see that the Tribunal's decision, even in part, relied on information put only to the first respondent's Department and not then subsequently put to the Tribunal. With these authorities firmly in mind it is clear that the Tribunal's decision turned on information, including country information, and information provided by the applicant at the hearing, which the Tribunal found to be unreliable. 4 I have read the Tribunal's reasons for decision dated 31 October 2005, and I agree with the assessment of the Federal Magistrate that, insofar as information adverse to the appellant constituted the reason, or a part of the reason, why the delegate's decision was affirmed, the Tribunal obtained all of that information from things which the appellant had said to it during the hearing and his responses to the Tribunal's questions at that time. I quote two sentences from the Tribunal's decision: "The applicant's responses during his evidence before the Tribunal were not impressive. His evidence was at times implausible, vague, unconvincing and contradictory." The Tribunal proceeded to give examples of the matters to which it referred in those summary statements. In my opinion, this is not a case in which information relied upon by the Tribunal as the reason or part of the reason for affirming the delegate's decision was obtained otherwise than from the appellant himself within the meaning of s 424A(3)(b). 5 The other substantive ground of appeal in this court relied upon by the appellant is that the Tribunal did not believe his claims because of its bias against him. The allegation of bias is a serious one and I am not confident that the appellant understands the concept in the way in which it is legally significant in Australian public law. 6 The appellant told me today that he understood bias to be a kind of improper view as to a certain matter. He said that he made his bias allegation in this court for the first time because, after thinking about it, he realised that the Tribunal did not have a proper attitude towards him. The appellant appears to have been particularly concerned about the circumstance that the Tribunal took into account the fact that he left China on his own passport and without any apparent attempt on the part of the authorities to restrain him. I am not confident that I understand exactly how the appellant seeks to use the concept of bias in relation to this circumstance, but one way or another it was a new ground which apparently occurred to the appellant as being worthy of inclusion in his notice of appeal. 7 If I were to permit this new ground to be taken on appeal, I would have to be persuaded that on balance favourable answers would be given to sufficient of the questions identified by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 85, to justify the exercise of my discretion in favour of permitting the new ground to be taken. A very significant issue to which his Honour referred in that judgment was whether the new ground would have a reasonable prospect of success. A successful allegation of bias would of course be a highly relevant matter in judicial review proceedings with respect to the deliberations of a statutory tribunal. However, nothing which the appellant has put to me today, and nothing which appears from my perusal of the material, particularly the decision of the Tribunal of 31 October 2005, provides any basis for a contention either that the Tribunal was biased in fact or that an objective, fair-minded observer would reasonably apprehend that the Tribunal was biased. I do not consider, therefore, that this ground would have any prospect of success. In those circumstances I would refuse leave to the appellant to include it in his challenge to the decision of the Federal Magistrate. 8 Having looked at the Tribunal's reasons, they appear to me to be free of any jurisdictional error, and having read the Federal Magistrate's reasons, he appears to have dealt with every aspect of the appellant's challenge to the Tribunal's jurisdiction in accordance with law and without error. 9 In those circumstances I propose to dismiss the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.