SZEKC v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Smith given on 25 May 2005, which dismissed an application for review of a decision of the Refugee Review Tribunal dated 27 July 2004 affirming a decision of a delegate of the Minister not to grant a protection visa to the appellant. 2 The appellant appeared before me with an interpreter and did not make any substantive oral submissions but relied on a set of written submissions. 3 The grounds of appeal are set out in the Amended Notice of Appeal. Those grounds raise issues as to procedural fairness, bias and, more specifically, in one case, a failure to inform the appellant of material which might be used against him. To some extent, these grounds overlap. 4 In relation to the first ground, I am not persuaded that there was any failure to afford procedural fairness in not giving a longer period of time to the appellant to seek documents to support his case. The appellant had, in total, a period of two months within which to gather these documents and the Tribunal granted the appellant an additional week. The Federal Magistrate took the view that this was a sufficient time and one must approach the case on the basis that the appellant knew that he was required to produce documents well prior to the hearing in order to substantiate his case. I find that this ground is not made out. 5 Another ground that is raised by the appellant is that the Tribunal was guilty of actual or ostensible bias. This appears to turn on a statement made by the Tribunal at p 8 of its reasons to the following effect: 'I asked the applicant what evidence he had asked for. He indicated that it was evidence that he had made a complaint to the police. I put to the applicant that two months seemed to be sufficient time in which to obtain further evidence. The applicant claimed that it was difficult to get evidence from India. I indicated to the applicant that he could have a further seven days in which to provide any further evidence as I considered that two months was ample time in which to obtain documents. I also put to the applicant that there is independent evidence before me indicating that it is very easy to obtain false documentation in India (See Danish Immigration Service & Danish Refugee Council 2000, "False passports and other documents," in Report on fact-finding mission to Punjab (India): The position of Sikhs 21 March to 2 April 2000, March/April, p.42. The applicant did not respond directly to this, instead reiterating that he was trying to get further evidence.' 6 The gist of any argument as to bias, as I understand it, is that the Tribunal member prejudged the matter by indicating that there was independent evidence about falsification and that this meant the member would not give attention to any documents whatsoever that were produced by the applicant before the Tribunal. I do not consider, on a fair reading, that the statement of the Tribunal provides support for this conclusion. The material referred to is of a general nature. It is reasonable to take into account this material, and the amount of weight given to it is a matter for the Tribunal member. 7 In my view, the statement does not support any allegation of ostensible or actual bias. In reaching this conclusion, I have also taken into account the allegation of the appellant that there was a failure to afford procedural fairness. I do not think that there is any substance in either of these two grounds, either alone or taken cumulatively. There was no material put before me to indicate any other basis on which bias or prejudgment could be alleged. 8 Having regard to what I have said before, it is apparent that I do not consider that there was any failure to accord natural justice by pre-warning the appellant that the independent material as to the availability of false documents in India may be used to assess the credibility of any documents produced. 9 In these circumstances, I am not persuaded that there has been any error of law or principle in the decision of the Federal Magistrate or of the Tribunal. Accordingly, I dismiss the appeal with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.