SZENJ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant is from India. He is aged 30 years. He arrived in Australia in January 2004. He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the ground of his Sikh religion and his membership of the political party Akali Dal. His application was refused on 16 February 2004. There have been two decisions of the Refugee Review Tribunal affirming the decision to refuse a protection visa. The first decision was made on 18 August 2004. The appellant appealed to the Federal Magistrates Court and the Federal Court of Australia. On 13 March 2006 the matter was remitted by consent to the Tribunal for reconsideration. The second Tribunal decision was made on 12 July 2006. The appellant again appealed to the Federal Magistrates Court. His application was dismissed on 26 February 2007. He appeals to this court against that decision. 2 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts. 3 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court. The appeal is, however, confined to an error of law usually amounting to jurisdictional error. 4 Behind every application for a protection visa lies a factual basis. The factual basis in the present case is that the appellant claimed to fear persecution from the Indian authorities and members of the India Congress Party because of his Sikh religion and political opinion. He claimed that in 1994 there were several incidents where he was threatened and attacked by members of the terrorist Khalistan Movement. When he complained to police they asserted that he was a terrorist. He was forced to leave his family home. He does not claim he was persecuted between 1996 and 2002. However, when the Congress Party gained power in 2002, he claims that he and his family were targeted as supporters of the Akali Dal Party. He claims that he was harassed by police and interrogated for extended periods. He claims that he was in Botswana from 2002 until he came to Australia. 5 The Refugee Review Tribunal, constituted by Mr S Norman, was not satisfied that the appellant had a real chance of persecution, either from terrorist groups, from being a Sikh or from his support, or his father's alleged support, of the Akali Dal Party. The Tribunal did not dismiss the fact that the appellant may have been detained on two or three occasions by local police in 2002. However, it stated that even if this evidence was accepted, it was not satisfied that the appellant would continue to be of adverse interest if he relocated within India. This was because it was not satisfied that he would "express [his political or other convictions] in any way that would give rise to more than a remote chance he would come to the adverse attention of any person or group (or the State) in India". Further, it was satisfied that it was reasonable to expect the appellant to safely relocate within India. 6 The reality of this case is that the appellant has lost it on the facts. However, the only appeal relates to the law. Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts. This raises problems for the many appellants who are in a similar position to the present appellant. However, if there is a relevant error of law an appeal will be successful. Accordingly, I now turn to that question. 7 The grounds of appeal relied on in the present case fall into two broad categories. The first relates to the way in which the appeal proceeded before the Federal Magistrate. The second relates to the substance of the decision of the Refugee Review Tribunal. 8 One of the claims in the first category is that the Federal Magistrate who heard the case did so in a way which demonstrated actual bias or reasonably apprehended bias. In Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 231 ALR 663, the High Court of Australia dealt with a claim, which had been upheld by the Full Federal Court of Australia, that a judge of that court had conducted himself in a way which would give rise to a reasonable apprehension of bias. In the course of giving their judgment in the appeal, Crennan and Kirby JJ, with whom Gummow ACJ agreed on the point, stated at [117]: "An intermediate appellant court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first". Accordingly, I must deal first with the bias claims made on behalf of the appellant. I note, however, that it is the second group of claims which address the question of whether the decision of the Refugee Review Tribunal is tainted with appealable error. Were I to uphold the claim of bias (see Concrete at [117]), it would seem that the proper course would be for me to send the matter back for reconsideration by the Federal Magistrates Court rather than to deal with the substantive issue relating to the validity of the decision of the Refugee Review Tribunal. 9 I propose to say at the outset that I think that the claim of bias, whether actual or apprehended, is entirely without foundation. I have read large parts of the transcript which has been put before me and I have, in particular, read all the parts of the transcript that were specifically referred to by the appellant's solicitor and to the parts of the transcript that are reproduced in the appellant's written submissions. I had played to me a substantial section of the recording of the hearing and had the opportunity to listen to that while I read through the recorded parts as they appeared in the written transcript. My first impression of my reading of the transcript and of listening to the recording of the hearing was that the proceeding took place in a way which is entirely normal and acceptable and in a way which occurs in courts in Australia every day of the week. 10 I particularly thought that in the way she addressed the appellant's solicitor, the learned Federal Magistrate proceeded with moderation. I did not notice her at any stage to raise her voice in any way that was untoward. The appellant has urged upon me that from time to time she interrupted. All I can say about that is that if interruptions by judges of counsel can give rise to a claim of apprehended bias, then there would be very many such claims that could be made. I noticed, although the appellant's solicitor did not refer to it, that there were occasions when he interrupted the Federal Magistrate. 11 I do not propose to leave this matter simply with my initial observations because the appellant put carefully considered and prepared submissions to me relating to the detail of the claim and the basis on which it was made out and I propose to address those matters. The primary matter which was raised by the appellant - and it is a matter which in some circumstances could give rise to some elements of complaint - was that, without any application having been made on the part of the respondent Minister, the Federal Magistrate referred to the prospect of her imposing a costs order personally upon the appellant's solicitor. 12 I accept that such orders should be made only in the rarest of circumstances where serious lapses of proper conduct have occurred for such an order to be justified. Like Mansfield J in Kumar v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCA 18, I am conscious of the fact (and think it is quite a significant matter) that the moment a personal costs order is made against a lawyer, a problem of conflict immediately arises between the lawyer and his client. Such conflicts do not assist the administration of justice. It therefore seems to me that it is not generally appropriate, except in a serious case and even then only when an application is made by a party, that consideration should be given to the imposing of a personal costs order. I am not, of course, saying that it is not open to the court to impose a personal costs order of its own motion. However, the Federal Magistrate did not proceed in this case to impose any personal costs order and so no consequence arises in that regard. It seems to me, having read carefully the material and having listened to the recording, that in the way in which the Federal Magistrate dealt with the matter, even if she might have desisted from raising the matter unless an application had been made, her conduct fell a very long way short of anything that could amount to actual or apprehended bias. 13 The appellant did raise some other matters specifically on the issue of bias. I have given consideration to all of those matters and again I think that they have no substance. One particular matter was the fact that, apparently, the Federal Magistrate had read the first of the decisions of the Refugee Review Tribunal, rather than the second decision of the Refugee Review Tribunal, prior to the hearing and understood that that first decision was the decision under review. I have read the parts of the transcript relating to that matter and it seems to me that, again, it does not give rise to any claim of bias. 14 Submissions were put to me as to the precise test which applies in a case of bias. The appellant contended for a passage in the decision of the High Court of Australia in Re Refugee Review Tribunal; Ex Parte H [2001] 179 ALR 425 at page 434 as the appropriate test. That test is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided". The conclusions I have arrived at apply if that is the correct test. However, whatever the correct test is, I still arrive at the same conclusions. 15 Another issue raised before me was whether the question of bias could be raised in this appeal, it having not been raised before the Federal Magistrate. In the light of my decision on the substance of the matter, I do not need to deal with this question. 16 The actual issues relating to bias are framed in grounds in the amended notice of appeal which are reproduced in the appellant's written submissions. Lest it should be thought by my summary approach to the issues that I have not considered the detail of those matters, I will now refer to the particular grounds, which are as follows: