SZLTH v Minister for Immigration and Citizenship (No 2) [2008] FCA 1697

JUDGE: JAGOT J

DATE: 13 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against an order of the Federal Magistrates Court dismissing the appellant's application for judicial review in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZLTH v Minister for Immigration & Anor [2008] FMCA 880. Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees). Section 474 of the Migration Act protects "privative clause decisions" (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error. 2 The appellant is a citizen of China. She arrived in Australia on 3 June 2007. She applied for a protection visa on 17 July 2007. The respondent Minister's delegate refused the application on 2 August 2007. The appellant applied to the Refugee Review Tribunal for a review on 31 August 2007. The Tribunal affirmed the decision on 29 October 2007. The appellant appealed to the Federal Magistrates Court on 12 December 2007. In her application the appellant identified two grounds of appeal. First, that the Tribunal ignored significant evidence in relation to the appellant's application (being evidence relating to her husband's application for a protection visa, which the appellant described as "tied closely" to her own application). Secondly, that there was a reasonable apprehension of bias on the part of the Tribunal (in that the Tribunal failed to consider the appellant's claims of persecution on political and religious grounds). 3 In her notice of appeal to this Court the appellant (in substance) repeated the claims made to the Federal Magistrates Court. Hence, the first ground of the notice of appeal is particularised as the Tribunal ignoring significant evidence (being her husband's application and evidence). The second ground is particularised as the reasonable apprehension of bias. 4 With respect to the first appeal ground the primary judge noted that the reference in the appeal to significant evidence about her husband precedes an extract from the appellant's own statement about her husband in support of her application. In consequence, the primary judge observed that it could not be said that this was a matter not before the Tribunal. This fact is evident from the Tribunal's statement of decision and reasons. The Tribunal referred to the appellant's statement attached to the protection visa application in considerable detail, including the references in it to her husband having provided money for the printing of political material and other financial support for the appellant's (and other people's) political activities. The primary judge also noted (as is the fact) that the Tribunal was not satisfied about the appellant's claims. 5 The primary judge further observed that, insofar as the appellant's first appeal ground was based on other material concerning her husband (that is, evidence her husband had given in support of his application for a protection visa): - (i) no such evidence was in the material before the Court, and (ii) it was the appellant's duty to make her own case and submit any material which she wished to use to the Tribunal (citing Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] in which the Full Court of the Federal Court said that in "a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance…"). 6 I see no error in the primary judge's disposition of the appellant's first ground of appeal (being the same first ground in the appeal to this Court). 7 The primary judge also correctly dismissed the apprehension of bias allegation. As the primary judge observed: - (i) the evidence does not include a transcript or tape of the proceedings before the Tribunal, (ii) it will be a rare case in which an apprehension of bias can be established by reference only to the Tribunal's reasons for decision (citing SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17]), and (iii) the function of the Tribunal as an inquisitorial body must also be kept in mind (citing Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312; [2008] FCA 185 at [12] – [14]). The primary judge thus concluded that the second ground had to be dismissed. 8 I agree with the primary judge's analysis of the appellant's second ground of appeal. The Tribunal clearly did consider (and at some length) the appellant's claims of persecution by reason of her political and religious activities. The Tribunal did not accept the appellant's claims. As the primary judge found the appellant's complaints of unfairness with respect to the Tribunal's decision, whilst understandable (given that the Tribunal decided the matter against the appellant), amount to nothing more than an invitation to impermissible merits review. 9 For these reasons the appeal must be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot .