SZLHO v Minister for Immigration and Citizenship [2008] FCA 1178

FEDERAL COURT OF AUSTRALIA

SZLHO v Minister for Immigration and Citizenship [2008] FCA 1178

Migration Act 1958 (Cth) s 424A, s 425

Re Refugee Tribunal; Ex Parte H (2001) 75 ALJR 982 cited Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited SZLHO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD688 of 2008

LOGAN J

5 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD688 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLHO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE OF ORDER: 5 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The Appellant is to pay the First Respondent's costs of and incidental to the appeal which are fixed in the amount of $2700. 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 NSD688 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLHO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE: 5 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of the People's Republic of China. He came to Australia on 13 February 2007. One month later, on 13 March 2007, he applied for a type of visa under the Migration Act 1958 (Cth) which is known as a protection visa. On 2 April 2007, a delegate of the Minister for Immigration and Citizenship, who is the first respondent in this appeal, decided to refuse that visa application. In turn, and as was his right under the Migration Act 1958, the Applicant sought the review of that refusal decision on the merits by the Refugee Review Tribunal ("Tribunal"). He did that by an application made on 4 May 2007. On 6 August 2007, for reasons which it then published, the Tribunal decided to affirm the decision of the Minister's delegate not to grant to the Appellant a protection visa. 2 Thereafter, the Appellant sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. On 24 April 2008, for reasons which were then published, the Federal Magistrates Court dismissed the judicial review application. From that decision, the Appellant appeals to this Court on three grounds. The grounds, as set out in notice of appeal and as particularised, are as follows: 1. The learned Federal Magistrates erred in finding that the Refugee Review Tribunal ("the Tribunal") assessed my review application properly. Particulars The Tribunal was not The Tribunal's decision was based on reasoning that was irrational and illogical or based on unwarranted assumptions or that the Tribunal failed to give consideration to relevant and significant evidence supporting the applicant's claim; and the Tribunal failed to assess evidence favouring the applicant or the Tribunal made its decision recklessly or the Tribunal failed to have genuine attempt to exercise jurisdiction. 2. The learned Federal Magistrates erred in finding that the Tribunal complied its obligations under s 424A(1) of the Act. Particulars In the Tribunal's s 424 letter, the Tribunal failed to disclose most of information that the Tribunal has considered as the reason or part of reason in making its final decision. The Tribunal has particularly failed to ensure me to understand the information that it has relied on directly in relation to my review application; and The Tribunal failed to give me a genuine opportunity to comment on the information that it has used as the reason or part of the reason in its final decision. 3. The learned Federal Magistrates erred in finding that the Tribunal complied with its obligations under s 425 of the Act. Particulars The Tribunal failed to clearly make me to understand the issues raised in the review application, such as the issues in relation to my protests and my detention, so that I could not make any comment or present my arguments against the issues. [sic] 3 In the course of his oral submissions, the Appellant also made reference to what he asserted to be bias on the part of the Tribunal member. 4 That was not a ground of challenge advanced before the learned Federal Magistrate. That in itself would not prevent a grant of leave to amend a notice of appeal in an appropriate case. In this instance, there is no evidence which would ground a claim either for actual or apprehended bias on the part of the member constituting the Tribunal in the material which comprised the record before the Federal Magistrates Court. There was no attempt to adduce further evidence, and thus no need to consider whether that exceptional course ought to be permitted. It suffices to note that the mere fact that a Tribunal chooses not to accept the claims made either in writing or orally for a protection visa does not in itself give rise to any basis for the setting aside of a Tribunal's decision on the basis of apprehended bias. More particularly, such a finding does not give rise to an objective possibility of bias, as that concept is described by the Full Court of the High Court in Re Refugee Tribunal; Ex Parte H (2001) 75 ALJR 982 at 983, para 5. 5 As a general comment, there is much force in the principal submission made on behalf of the Minister, which is that, as developed in oral argument, and as articulated in the notice of appeal, the Appellant has not engaged with the reasons for judgment of the Federal Magistrate so as to highlight where there is error in the reasoning of that Court. It is to be remembered that the function discharged by this Court is not that of the judicial review of a decision of the Tribunal, but rather the entertaining of an appeal on articulated grounds from the Federal Magistrates Court. 6 For all that, the Minister, by his counsel, very properly undertook the exercise of detailing, having regard to the notice of appeal, why it was that there was no error in the reasoning of the learned Federal Magistrate. In so doing, the assumption was made that the Appellant's case was that the learned Magistrate had erred in not accepting that the Tribunal's decision was flawed on one or more of the bases set out in the notice of appeal. That seems to me to be a fair way to approach the disposal of this appeal. What I therefore propose to do is, in short form, to deal with each of the bases of challenge set out in the notice of appeal.