FEDERAL COURT OF AUSTRALIA SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 Citation: SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 Appeal from: SZOPX v Minister for Immigration and Citizenship [2011] FMCA 101 Parties: SZOPX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL File number: NSD 278 of 2011 Judge: FLICK J Date of judgment: 25 May 2011 Catchwords: MIGRATION – reasonable apprehension of bias – onus of establishing ground of review – ex tempore reasons – desirability of justice being done and being seen to be done Legislation: Migration Act 1958 (Cth) Cases cited: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, 148 FCR 446, cited Australian Securities Commission v Lucas (1992) 36 FCR 165, cited Jones v Ekermawi [2009] NSWCA 388, cited JRL, Re; Ex parte CJL [1986] HCA 39, 161 CLR 342, considered Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507, considered Reece v Webber [2011] FCAFC 33, cited R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, cited Sagar v O'Sullivan [2011] FCA 182, cited SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, considered SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280, considered SZHHF v Minister for Immigration and Citizenship [2008] FCA 1818, cited SZMJV v Minister for Immigration and Citizenship [2008] FCA 1709, cited SZNOT v Minister for Immigration and Citizenship [2010] FCA 105, cited SZNVM v Minister for Immigration and Citizenship [2010] FCA 261, cited SZOPX v Minister for Immigration and Citizenship [2011] FMCA 101, cited VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117, referred to Kirby, M, "Appellate Reasons" (2007) 30 Australian Bar Review 3 Date of hearing: 10 May 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: E Baggett Solicitor for the First Respondent: DLA Piper IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 278 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOPX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 25 MAY 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 278 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOPX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FLICK J DATE: 25 MAY 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Appellant is a citizen of China who arrived in Australia on 1 December 2009. 2 She applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 13 January 2010. That application was refused by a delegate of the Minister on 6 April 2010 and an application for review was lodged with the Refugee Review Tribunal on 3 May 2010. On 13 August 2010 the Tribunal affirmed the decision of the delegate. 3 On 14 September 2010 she filed an Application with the Federal Magistrates Court of Australia seeking review of the Tribunal's decision. That Application was heard by that Court on 18 February 2011 and on that date that Court published its reasons for its decision dismissing the Application: SZOPX v Minister for Immigration and Citizenship [2011] FMCA 101. 4 A Notice of Appeal was then filed with this Court on 11 March 2011. 5 The Appellant appeared before this Court unrepresented. She was accompanied by an interpreter. 6 The appeal is to be dismissed. The Grounds of Appeal 7 The Notice of Appeal sets forth the Grounds of Appeal (without alteration) as follows: 1. RRT had bias against me and did not make fair decision for my application 2. I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes underground house church members. 8 None of these Grounds have, with respect, any substance. 9 The first Ground contends that the Tribunal's decision is vitiated by reason of (presumably) a reasonable apprehension of bias as opposed to actual bias. Such an allegation must be "firmly established": Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J. 10 What is required of an administrator is that he retains a mind open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [71] to [72], 205 CLR 507 at 531 to 532 per Gleeson CJ and Gummow J. It is equally well-accepted, however, that an administrative decision-maker need not approach his task with a "blank mind". In Jia Legeng, Gleeson CJ and Gummow J observed: [71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias … [72] ... The state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. See also: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 to 554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ; Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [599], 148 FCR 446 at 591 per Weinberg J. 11 The onus of making out a ground of review in judicial review proceedings remains, of course, upon the applicant seeking relief: Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; Sagar v O'Sullivan [2011] FCA 182 at [41] per Tracey J. The onus of establishing the factual foundation for an alleged denial of procedural fairness thus also lies on the party alleging the breach: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]. Hill, Sundberg and Stone JJ there regarded it as "trite law that the onus of establishing the factual foundation for a claim of a breach of natural justice or a failure to afford procedural fairness lies on the party alleging the breach …". See also: Jones v Ekermawi [2009] NSWCA 388 at [39] per Sackville AJA (McColl JA and Handley AJA agreeing); SZNOT v Minister for Immigration and Citizenship [2010] FCA 105 at [10]. 12 In the present proceeding, it is not at all apparent that the Appellant sought to advance a reasonable apprehension of bias as a ground of review before the Federal Magistrate. It may be that any reliance upon bias as a ground for challenging the decision of the Tribunal is a ground raised for the first time on appeal. The manner in which the Appellant explained this first Ground of Appeal during the course of submissions did not appear to place any reliance upon bias as a ground of review. But such considerations may presently be left to one side. 13 There is simply no basis upon which any conclusion could be reached – either by the Federal Magistrate or this Court – that the Tribunal was biased or failed to make a "fair decision". There was no transcript or other evidence as to the manner in which the Tribunal proceeded during the course of the hearing before it. The sole basis upon which any such argument could potentially have been sustained before this Court was by reference to the reasons for decision of the Tribunal. 14 But it will be a "rare and exceptional case" where bias can be demonstrated solely by reference to the published reasons for decision: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668. Albeit in the context of resolving an allegation of actual bias, as opposed to a reasonable apprehension of bias, von Doussa J there relevantly observed: [38] In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing … or a failure to enquire into and to obtain readily available and important information relating to central matters for determination … an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias. See also: Reece v Webber [2011] FCAFC 33 at [47] per Jacobson, Flick and Reeves JJ. 15 The reasons for decision of the Tribunal in the present proceeding do not make out the present case to be such a "rare and exceptional case". Those reasons record an analysis of the "relevant law" and a detailed account of the "claims and evidence". That account of the "claims and evidence" also sets forth a number of instances in which the Tribunal "raised with the applicant" issues of concern to it. The reasons conclude with "findings and reasons". Those "findings" include (in part) findings critical of the "evidence" relied upon by the Applicant and include (for example) instances of "inconsistencies, omissions and conflicts". But the very task of the Tribunal is to make "findings" and in many cases those "findings" include a rejection of the "evidence" being advanced by a claimant. A reasonable apprehension of bias is not exposed simply by reason of a Tribunal rejecting claims as made. The reasons of the Tribunal in the present case – it may be noted – include not only "findings" adverse to the Appellant; they also contain "findings" accepting parts of the claim. The reasons expose nothing other than the Tribunal fairly evaluating the "claims and evidence". Any suggestion as to bias on the part of the Tribunal is misplaced. 16 The first Ground of Appeal is dismissed. 17 The second Ground seeks to contend that the hearing before the Federal Magistrate was "not fair". The Appellant maintains that "I clarif[ied] all my points at the hearing" but that the Federal Magistrate "refused my application". As submitted on behalf of the First Respondent, this Ground was susceptible of being construed as a criticism of the Federal Magistrate for delivering an ex tempore judgment – namely a judgment "on my hearing date". As explained by the Appellant, however, it was more a criticism of the Federal Magistrate for not believing the claim as to the genuineness of her religious beliefs. Either way, the Ground is without substance. 18 The mere fact that the Federal Magistrate delivered an ex tempore judgment provides no reason in itself to question the "fairness" of the result: SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280. Sackville J there relevantly observed: Bias or Apprehended Bias [39] The appellant's principal complaint about the RRT's consideration of his claims was that it had made a decision first and had tailored its reasons to fit the decision. This complaint, however, misunderstands the significance of an oral decision handed down at the conclusion of a hearing. As the Magistrate pointed out, it is commonplace for courts and tribunals to announce a decision or give ex tempore reasons immediately the hearing is completed. There are obvious reasons why such a course is desirable. Not the least is that it avoids the uncertainty and anxiety experienced by the parties pending the making of a decision. Sometimes ex tempore or oral decisions are necessary to enable the decision maker to cope with a very heavy workload. The making of such a decision is not of itself indicative of bias or of insufficient attention to the claims made by an applicant. See also: SZHHF v Minister for Immigration and Citizenship [2008] FCA 1818 at [19] to [21] per Middleton J; SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [45] per Katzmann J. 19 As a general proposition it may be accepted that it "would ordinarily be difficult to establish" a ground of review by reason of a Federal Magistrate delivering ex tempore reasons for decision: SZMJV v Minister for Immigration and Citizenship [2008] FCA 1709 at [16] per Foster J. But some reservation is nevertheless expressed as to the desirability of ex tempore reasons as a matter of course. It is of importance in any area of judicial decision-making, and especially of importance in an area of decision-making which so immediately affects the lives of applicants for refugee status under the Migration Act 1958 (Cth), to in fact give – and to appear to give – detailed consideration to the arguments being advanced. An argument which initially may appear to be totally lacking in substance may conceal an argument containing some merit which only emerges with time and further deliberation. Justice, it has been repeatedly said, must not only be done but must manifestly be seen to be done: e.g., Re JRL; Ex parte CJL (1986) 161 CLR 342 at 349 per Gibbs CJ, at 351 to 352 per Mason J. The manner in which grounds of review and grounds of appeal are invariably expressed by unrepresented litigants in cases arising under the Migration Act only compounds the desirability of ensuring all applications are properly considered. The desirability of delivering ex tempore reasons, however, must remain a matter dictated primarily by the facts and circumstances of the case under consideration, the complexity of the legal and factual issues to be resolved, the assistance provided to the Court by the parties, whether the Court is exercising original or appellate jurisdiction and by the personal judgment of the particular Judge involved. As noted by the Honourable Michael Kirby, judges are "individualists" and "[p]erhaps the hard wiring of some brains is more complicated than others": "Appellate Reasons" (2007) 30 Australian Bar Review 3. 20 No criticism can be directed at the Federal Magistrate for delivering ex tempore reasons in the present proceeding. The law and facts were within a limited compass and were readily susceptible of being resolved expeditiously. Other cases may warrant a different conclusion. 21 Nor is there substance in the second Ground of Appeal as explained by the Appellant. Obviously enough, the mere fact that a litigant loses provides no basis for appeal. Mere dissatisfaction with the decision of the Federal Magistrate exposes no appellable error. The decision of the Federal Magistrate has, in any event, been reviewed. No error emerges from those reasons. 22 The third Ground of Appeal is perhaps but a repetition of the second Ground. 23 As explained by the Appellant during the course of the hearing of the appeal, and what was otherwise apparent from the Grounds of Appeal, the Appellant impermissibly sought for both the Federal Magistrate and this Court to undertake a review on the merits of the claims she was advancing. She repeatedly emphasised her desire to have more time in which to produce "further documents" to support the genuineness of her religious beliefs. The exact nature of these "further documents", however, was not identified other than to characterise them as documents that would support the genuineness of her religious beliefs. But there was no adequate explanation as to why such documents were not produced – as they should have been – to either the delegate or the Tribunal. In May 2010 the Appellant had been invited to attend before the Tribunal. And that hearing ultimately took place, after having been postponed, in July 2010. Given the expiration of time between the giving of notice and the hearing, there is no basis for concluding that the Appellant has been denied a fair opportunity to present her claims. Having failed once before the Tribunal, what the Appellant now impermissibly seeks is a second opportunity in the hope that "further documents" may lead to a different conclusion. Conclusions 24 The appeal is to be dismissed. There is no reason why the normal rule as to costs should not be applied such that costs should follow the event. ORDERS 25 The Orders of the Court are: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 25 May 2011