SZDZT v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 5 The Tribunal found that the appellant was a citizen of the PRC but it was not satisfied that the appellant was a truthful witness. The appellant was unable to provide a satisfactory explanation for the inconsistencies between the claims the appellant made in his application for a protection visa and the claims the appellant made to the Tribunal. Accordingly the Tribunal was not satisfied that the appellant had ever held any Falun Gong material in the PRC or that he was ever detained by the authorities. The Tribunal accordingly was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention.

APPLICATION TO THE FEDERAL MAGISTRATES cOURT 6 By Amended Application filed in the Federal Magistrates Court on 23 April 2007 the appellant relied upon three grounds to challenge the decision of the Tribunal, namely bias; that there was no rational or logical foundation for the Tribunal's decision; and that the Tribunal relied on country information that was out of date. 7 Barnes FM noted there was nothing in the decision of the Tribunal to indicate any factual foundation for a finding of actual or apprehended bias on the part of the Tribunal and no evidence of any pre-judgment. Barnes FM referred to VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 in finding that no inference of bias or prejudgment can be drawn from the mere fact that the Tribunal has made adverse findings as to the credit of the appellant. 8 The appellant did not provide particulars in relation to his second ground of review and Barnes FM rejected it as having no factual basis. 9 Barnes FM similarly rejected the appellant's third ground of appeal because it had no factual basis and because a determination of the weight to be given to particular items of country information was a matter for the Tribunal. 10 In considering whether there were any other grounds upon which a finding of jurisdictional error in the Tribunal's decision could be made, her Honour noted that the Tribunal had asked the appellant to comment on adverse information pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act') and the inconsistencies in the evidence regarding his arrest and detention. Barnes FM found nothing in the material before the Court to indicate the Tribunal failed to comply with s 424A of the Act. 11 Her Honour accordingly dismissed the application.

APPEAL TO THE FEDERAL COURT 12 By Notice of Appeal filed on 31 July 2007 the appellant claims that the Tribunal was biased in not considering his application under s 91R of the Act; the decision of the Tribunal was not based on the evidence but upon assumptions of the 'officer'; and the country information relied upon by the Tribunal was irrelevant as it was out of date. These grounds are essentially the same as the grounds raised before the Federal Magistrates Court.

FINDINGS 13 At the commencement of the hearing before this Court, the appellant was informed that the function of the Court was to consider whether any error existed in the decision of the Federal Magistrate and not in the decision of the Tribunal: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCAFC 210 at [10]. None of the grounds of appeal alleged any error by Barnes FM, but because the appellant is unrepresented the Court will consider his claims. 14 The appellant has provided no particulars of his allegation that the Tribunal was biased. An allegation of bias is a very serious accusation of personal fault on the part of the decision maker. Such allegation must be specifically pleaded and clearly proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. Further, it is rare for a Court to find that an administrative decision maker acted in bad faith especially when all the Court has before it in support of the allegation is the record of the decision being challenged: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48]; VFAB v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102. 15 There is no evidence before the Court to suggest that the Tribunal had closed its mind to any argument in support of a conclusion contrary to the decision it made: see Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134 per North J. The Tribunal considered all of the appellant's claims and gave him the opportunity to respond to concerns which it held in relation to inconsistencies in the appellant's evidence. There is no evidence that the Tribunal had acted in a manner that would give rise to a reasonable apprehension of bias. 16 The appellant's claim relating to s 91R of the Act was not raised before Barnes FM and the appellant requires leave to raise such ground in this Court (see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51). In determining whether to grant leave the Court must consider the prospects of success of the new ground; whether an acceptable explanation has been provided why they were not raised in the Court below; whether it would be efficient to hear the new ground; the interests of the appellant; the precedent value of any consideration of the issue; whether there is any prejudice to the respondent and whether any such prejudice can be remedied; and where in all the circumstances do the interests of justice lie: see NAJT 147 FCR [166] per Madgwick J. 17 The Tribunal referred extensively to the operation of s 91R of the Act in its reasons and there is no indication that the Tribunal misunderstood the operation of s 91R in relation to the appellant's fear of persecution. Therefore the prospects of success of this ground are negligible. The appellant has not provided an explanation why this ground was not raised before Barnes FM and there would be no precedent value in allowing the appellant to rely on such ground. While any prejudice to the Minister in allowing this new ground would be insignificant, the overall interests of the administration of justice lie in not granting leave to raise this ground. 18 For the above reasons the Court dismisses this ground of appeal. 19 The appellant was unable to offer any submissions in relation to his second ground of appeal, namely that the decision of the Tribunal was based on the assumptions of the 'officer'. The claim in effect alleges that the second Tribunal took into account evidence and materials provided by the appellant to the earlier differently constituted Tribunal. 20 Barnes FM correctly noted that there is nothing to prevent a Tribunal from considering evidence given at a hearing of an earlier and differently constituted Tribunal. The Tribunal does not commit jurisdictional error by having regard to such evidence and claims even if the decision of the earlier Tribunal is found to be invalid. Not all steps taken in arriving at an invalid decision, or materials received leading to such invalid decision are themselves invalid: see SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291. Accordingly the Court dismisses the second ground of appeal. 21 As to the appellant's third ground of appeal, Barnes FM considered the appellant's claim that the Tribunal considered irrelevant country information in her finding that there was no factual basis for the claim. Her Honour found that the weight to be given to country information was a matter for the Tribunal and that because the Tribunal is not bound by the rules of evidence in conducting its review, it may obtain any information it considers relevant. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] the Full Court of this Court said:

It is not… an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court was to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that.

22 The Court finds no error as alleged and accordingly dismisses this ground of appeal. 23 There is no error in the decision of Barnes FM nor in the decision of the Tribunal and for the reasons given above the Court dismisses the appeal and orders the appellant to pay the costs of the Minister. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Appellant: The appellant appeared in person

Solicitor for the Respondent: Blake Dawson Waldron