FEDERAL COURT OF AUSTRALIA SZJDO v Minister for Immigration and Citizenship [2007] FCA 274 SZJDO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD2363 OF 2006 JESSUP J 26 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD2363 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJDO 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 name of the first respondent as shown in the Court heading on the appeal be amended to Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The appellant pay the costs of the first respondent fixed in the amount of $2,000. 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 NSD2363 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJDO 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 15 November 2006 dismissing an application for judicial review with respect to a decision of the Refugee Review Tribunal ('the Tribunal') dated 16 June 2006 and handed down on 6 July 2006. In that decision the Tribunal affirmed the decision of the delegate of the Minister to refuse the appellant a protection visa pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 In her amended application before the Federal Magistrates Court the appellant set out the following grounds of review: 1) The Tribunal did not refer to independent information for the consideration of my application for a protection visa. The Tribunal referred to out to date information for consideration of my application, did not refer to any correct independent information. 2) Because of the bias towards me, the Tribunal did not consider my application according to s 91R of the Migration Act and s 424A of the Migration Act. The Tribunal failed to assess the chance of my persecution on my return to China. The Tribunal failed to carry out its statutory duty. I was notified the reason or part of the reason for affirming the decision. I did not have the opportunity to comment on it. 3) The Decision from RRT has not been supported by sufficient evidence. 3 As to the first of those grounds the Federal Magistrate held that the Tribunal did not make reference to any independent country information and under the Act was not required to do so. The court held that the Tribunal affirmed the decision under review solely on the basis of its consideration of the appellant's claims, and, having regard to the paucity of the evidence and the general lack of detail in the appellant's claims, was unable to be satisfied that the appellant met the criteria for refugee status. The court held that there was no error in the Tribunal's decision of the nature alleged in the first ground. 4 With respect to the appellant's allegation of bias, the court noted that that was a serious allegation, and held that there was nothing that would indicate bias on the part of the Tribunal, either actual or apprehended. The court went on to consider whether the second ground, which included the allegation of bias, extended also to an allegation that the Tribunal failed to carry out its statutory duty in some unparticularised way. The court noted that the Tribunal dealt with the appellant's claims in a comprehensive fashion and made conclusions that were open to it on the evidence and material before it. Further, the court held that there was no substance in any suggestion that the Tribunal had not complied with s424A of the Act. It observed that the Tribunal had regard to the material contained in the appellant's protection visa application, and having read the material and evaluated its content and weight, found itself unable to be satisfied that the appellant's claims were made out. 5 Insofar as the Tribunal had concluded that the appellant's allegations were not credible, the court accepted a submission that the Tribunal intended to convey the sense that it was not satisfied that the appellant's claims had been established. The court therefore held that the second ground had not been made out. 6 With respect to the third ground, the Federal Magistrates Court noted that the Tribunal had provided reasons for its inability to be satisfied that the appellant had met the criteria for being a refugee. It noted that the Tribunal had identified its concerns in this regard, particularly with respect to the lack of detail in support of the appellant's claims, including those aspects of the claims that would have been explored at a hearing. In this respect a feature of the case was that the appellant did not respond to the invitation given to her by the Tribunal to appear before it at an oral hearing. 7 The court concluded that the Tribunal's decision was not affected by jurisdictional error, that it was, therefore, a privative clause decision, and that the court had no jurisdiction to interfere. 8 At the hearing of the appeal this morning the appellant represented herself. She advanced the following grounds of appeal: 1) The Tribunal failed to carry out its statutory duty. The Tribunal had not notified me the reason or part of the reasons for affirming the decision, I lost the opportunity to comment upon it. 2) The Tribunal had bias against me and failed to consider my claims for my application for a protection visa. My application was not considered according to Migration Act 1958. 3) I lodged my application to be reviewed at Federal Magistrates court, the court failed to find out the above mentioned errors. 9 The first of those grounds appears to be a complaint that the Tribunal did not observe the requirements of s 424A of the Act. This was a case in which the Tribunal was simply not satisfied that the appellant had put before it sufficient factual material which would support her claim to be held to be a refugee within the meaning of the Refugees Convention. This was not a case in which information provided in the appellant's protection visa application was part of the reason why the Tribunal affirmed the decision of the delegate. Nor was this a case in which a proposition articulated by the appellant at a hearing before the Tribunal was contradicted by omissions in her protection visa application with the result that the contradiction between the two stories given by the appellant became, in effect, information for the purposes of s 424A of the Act. This was a case in which the only material that the Tribunal had at its disposal was that provided by the appellant in her original application. 10 The appellant did not accept the invitation of the Tribunal to appear before it at a hearing to give more complete or more satisfactory expression to the particulars of her circumstances or to the merits of her application. In the circumstances, the Tribunal had only the material originally provided by the appellant to go on, and it took the view that that material was insufficient to sustain the claims which the appellant made. This does not, I consider, constitute reference to information on the part of the Tribunal of the kind with which s 424A of the Act is concerned. 11 In this regard I would refer to the judgment of the Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, where Finn and Stone JJ referred to what they described as a considerable body of case law with regard to the term 'information' in s 424A of the Act. Their Honours said that that word did not encompass what they described as 'identified gaps, defects or lack of detail or specificity in the evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps ....' Their Honours' conclusions had the support of a later Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 225 in the judgment of Moore J, and at 259-260 and 263 in the judgment of Allsop J. As to the latter, the reservations which Allsop J expressed about the references by Finn and Stone JJ to identified gaps etc, should, in my assessment, be seen as referable to a circumstance in which the gaps as such were said to be information which would lead to an affirmation of the decision of the delegate in the face of other material at the hearing of an application for review by the Tribunal. 12 I regard the present case as one which sits squarely within the conventional connotation of the "gaps and defects" observations of Finn and Stone JJ, that is to say, as one in which there never was any sufficient basis in the material before the Tribunal, from any source, such as would justify overturning the decision of the delegate. 13 The reasons which I have just expressed on this matter substantially conform to those given by the Federal Magistrate at pars 31-34 of her reasons. She referred to the judgment of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, and gave reasons based upon that judgment for her view that the mere fact that the whole of the material before the Tribunal was inadequate to persuade the Tribunal that the appellant should have been accorded refugee status did not give rise to any concerns under s 424A of the Act. 14 The Magistrate referred also to the judgment of the Full Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10, in connection with what was then the appellant's first ground dealing with the matter of independent country information. The appellant had not given expression to that particular aspect of this ground in this appeal, but it is sufficient for me to conclude, as I do, that she has not indicated any respect in which the Federal Magistrate was in error in dealing with this ground. 15 On the matter of bias, I agree with the Federal Magistrate that that is a serious allegation and I am bound to say that I regard it as quite unsatisfactory that an allegation of that kind should be made against the Tribunal when there is not a shred of evidence to support it. I am not at all confident that the appellant knew exactly what she was alleging when she used this expression. Before me, she said that by the reference to bias she meant to convey that the Tribunal had refused her application without conducting an investigation. The Tribunal had no reason to conduct an investigation. If it had been asked to do so and had refused to do so, questions of the proprietary of that course might have arisen, but even then, it would have been a long way short of any proper basis to make an allegation in the nature of bias. 16 To the extent that the Tribunal dealt with the appellant's case at a fairly cursory level, the appellant herself was responsible for that course. Manifestly, from its reasons, the Tribunal was anxious to understand more about the appellant's application and the circumstances which lay behind it. But, because the appellant's application was expressed in the briefest and most summary terms and because she did not provide any further particulars and she did not attend at a hearing, the Tribunal had no alternative but to affirm the decision under review. The suggestion that it demonstrated bias in doing that is without foundation. I agree with the conclusion of the Federal Magistrate in that regard and cannot find any error in the way she approached the matter. 17 For those reasons I propose to dismiss the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 5 March 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: S Zarucki Solicitor for the Respondent: Clayton Utz Date of Hearing: 26 February 2007 Date of Judgment: 26 February 2007