SZJBD v Minister for Immigration and Citizenship [2008] FCA 922

FEDERAL COURT OF AUSTRALIA

SZJBD v Minister for Immigration and Citizenship [2008] FCA 922

MIGRATION - judicial review – allegation of apprehended bias by the Refugee Review Tribunal – applicant tried to tender the tape recording of hearing before the Tribunal – Federal Magistrate refused to admit tape recording into evidence Migration Act 1958 (Cth) s 425 Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 MZXLD v Minister for Citizenship [2007] FCA 1912 SZJBD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2192 OF 2007

SIOPIS J

20 June 2008

PERTh (HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2192 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJBD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 20 JUNE 2008

WHERE MADE: PERTh (HEARD IN SYDNEY)

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. Orders 1 and 2 of the Federal Magistrate dated 17 October 2007 are set aside. 3. The appellant's application for judicial review is referred back for rehearing to the Federal Magistrate. 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 NSD 2192 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJBD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 20 JUNE 2008

PLACE: PERTH (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 The appellant is a citizen of People's Republic of China who arrived in Australia on 19 May 2003. On 30 June 2003 the appellant lodged an application for a protection visa with the Department of Immigration Multicultural and Indigenous Affairs on the grounds that she feared persecution because she was a Falun Gong practitioner. 2 A delegate of the first respondent refused the application for a protection visa. The appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The decision of the Tribunal as originally constituted was set aside and the review application was referred back to the Tribunal for rehearing. 3 The appellant attended a hearing before a differently constituted Tribunal. The Tribunal asked the appellant a number of questions about Falun Gong. The Tribunal found the appellant to be an unreliable and untruthful witness and rejected her application. 4 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. One of the grounds relied on was bias. Before the Federal Magistrate, the appellant claimed that the Tribunal asked her "misleading questions" and that she had been "bullied" by the interpreter. The appellant asked that the Federal Magistrate listen to the tape of the Tribunal hearing, which she had with her, to substantiate her claims. The Federal Magistrate declined to listen to the tape. The Federal Magistrate dismissed the appellant's application for judicial review. 5 The appellant appeared in person before me. She complained that the Tribunal had been biased and that the Federal Magistrate should have listened to the tape. I have construed the appellant's contention to be that the Federal Magistrate erred in failing to receive into evidence the tape recording of the proceeding which the appellant relied upon in support of the ground of review founded on apprehended bias. 6 In my view, the appeal should be allowed.