FEDERAL COURT OF AUSTRALIA SZIGG v Minister for Immigration & Citizenship [2007] FCA 341 SZIGG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD2485 OF 2006 JESSUP J 27 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD2485 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIGG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 27 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be added as a second respondent to the appeal. 2. The name of the first respondent as shown in the title to the proceeding be amended to Minister for Immigration and Citizenship. 3. The appeal be dismissed. 4. The appellant pay the costs of the first respondent fixed in the sum 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 NSD2485 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIGG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE: 27 FEBRUARY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 4 December 2006 dismissing an application by the appellant for writs of prohibition, certiorari and mandamus directed to the Refugee Review Tribunal ('the Tribunal') and to the respondent Minister in relation to a decision by the Tribunal made on 8 December 2005 and handed down on 3 January 2006 to affirm the decision of a delegate of the Minister not to grant a protection visa to the appellant pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 In his grounds before the Federal Magistrate as set out in his application, the appellant contended that the Tribunal had not considered his application according to the Act because of its bias against him. He contended that the Tribunal had not considered his application with what he described as "correct jurisdictional steps". He contended that the Tribunal did not refer to any independent information in its consideration of his application. He contended that the Tribunal refused his application without giving what he described as "deep consideration of all the information provided by me". He contended that his application was refused in a very simple way and that he could not see any evidence to justify the making of the decision. Finally, he contended that the Tribunal failed to consider his claim. 3 Those contentions were considered comprehensively by the Federal Magistrate in his reasons dated 4 December 2006. He identified, correctly in my view, that the gravamen of at least one of the propositions being advanced by the appellant was that the Tribunal had contravened s 424A of the Act. In relation to that point his Honour said: I accept, as submitted by the First Respondent, that no s.424A of the Migration Act obligations arose in circumstances where there has been an absence of evidence before it primarily due to the non-appearance and non-attendance of the Applicant and the failure of the Applicant to provide any or any further adequate material in support of the application… His Honour referred to the judgment of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at pars [29] to [30]. 4 In his appeal in this Court the appellant relied upon a ground which asserted that the Tribunal failed to consider his application according to s 424A of the Act. When I asked him in what particular respect he said that the Tribunal had failed to comply with s 424A, the appellant was unable to provide any details. When I asked him whether he had read the Federal Magistrate's reasons for rejecting his point under s 424A, he said that he had not done so. It appears to me that the Federal Magistrate dealt properly and correctly with the appellant's case under s 424A, and nothing which has been put to me this morning casts any doubt upon the correctness of the way in which the Magistrate proceeded in this regard. 5 Turning to the allegation of bias which was contained in the original application filed before the Federal Magistrate, his Honour dealt with that allegation in the following terms: The Applicant having raised bias in the original supporting affidavit and having repeated the assertion again before the Court this day failed to provide any or any adequate particulars which would in any way justify a finding a bias, whether actual or apprehended. In this instance I can see no evidence that the Tribunal has been biased in its approach to the task of assessing the claim in circumstances where the applicant has not responded to the invitation to attend the hearing, has failed to attend the hearing and has failed to provide any further material in support of the application. 6 In his Notice of Appeal in this court, the appellant did not seek to rely upon the bias point. However, in his submissions before me this morning, he again alleged that the Tribunal had been biased against him, although I am not confident that his understanding of bias is that of the well-established jurisprudential concept which is justiciable in this Court. He told me this morning that he had not considered the Federal Magistrate's reasons with respect to the matter of bias, and he was unable to give me any reason why I should deal with the allegation on the merits in the absence of any reference to it in the Notice of Appeal. 7 Ms Hooper, appearing for the Minister this morning, dealt with the bias point on the merits, and I am prepared to proceed in accordance with the assumptions underlying her submission. She submitted that the Federal Magistrate was correct in the way in which he dealt with the point as set out in the passage I have quoted above. I accept that submission, and I agree that there is no suggestion in any of the material which was before the Federal Magistrate which would be sufficient to sustain an allegation of bias against the Tribunal. 8 The appellant relies upon two further grounds in his Notice of Appeal which appear not to have been raised, or at least raised squarely, in the proceedings before the Federal Magistrate. According to the established jurisprudence of the Full Court, I should not permit him to raise those new grounds unless I am satisfied according to a balance of the considerations to which Madgwick J referred in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 85 that such a course would be just and appropriate. In the circumstances of the present case, for reasons to which I will come in a moment, I am not disposed to give the appellant leave to raise these new grounds because they are manifestly devoid of merit and would not have any prospect of succeeding. 9 The first point was that the Tribunal did not give the appellant an opportunity to explain his case. On the material which was before the Federal Magistrate, the allegation contained in that ground is plainly wrong as a matter of fact. The material disclosed that the Tribunal considered all of the documents which the appellant had lodged with his visa application and, pursuant to s 425 of the Act, invited the appellant to appear before it so that he might further explain the grounds upon which he sought the grant of a protection visa and to answer questions from the Tribunal. It is manifest that the appellant received that invitation because he told me this morning that the reason that he did not go to the Tribunal on that occasion was that he got off the train at the wrong station. He told me further that, having done that, he did not proceed to contact the Tribunal to indicate to them the mistake he had made and to seek to make some further arrangement. In the circumstances I consider that the proposition that the Tribunal did not give the appellant an opportunity to explain his case is quite unmeritorious. 10 The other ground raised by the Notice of Appeal to which no reference had previously been made before the Federal Magistrate was that the Tribunal failed to consider the appellant's application according to s 91R of the Act. As Ms Hooper submitted this morning, s 91R simply did not enter the frame in the present case because the Tribunal rejected the factual basis of the appellant's claims. It did not reach the point at which it would have been required to consider whether an established element of persecution satisfied the terms of s 91R of the Act. In the circumstances I am of the view that had the appellant raised the matter of s 91R before the Federal Magistrate it would manifestly have provided no assistance to him in his case that the Tribunal failed to exercise its jurisdiction as required by the Act. 11 For those reasons I propose to dismiss the appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 13 March 2007 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: K Hooper Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 27 February 2007 Date of Judgment: 27 February 2007