SZFOR v Minister for Immigration and Multicultural Affairs and Anor

APPEAL TO THE FEDERAL MAGISTRATES COURT 10 On 24 January 2005 the appellant filed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking orders that the Tribunal's decision be set aside and that his case be remitted for rehearing. The grounds relied upon claimed that the Tribunal did not give him 'any other chance to explain my application'. He claimed that he was unable to attend the hearing because he was delayed in traffic and that he tried to contact the Tribunal but no one could assist him because of language difficulties. He also claimed that there was information and evidence which had not been considered by the Tribunal. 11 On 5 May 2005 the appellant filed an Amended Application. The grounds relied upon claimed that the Tribunal did not give him the opportunity to explain his claims; that the Tribunal's satisfaction that he was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief; that the Tribunal did not observe the requirement of the Act and that the Tribunal failed to consider his claims. The appellant also claimed that the Tribunal did not provide adequate particulars of the independent information nor give him an opportunity to respond to the substance of the information. 12 Nicholls FM heard the application. He noted that the allegation that the appellant did not attend the hearing because he was delayed in traffic was not the subject of any evidence. Nicholls FM also noted that the appellant had consulted a lawyer engaged by the Federal Magistrate Court's Legal Advice Scheme on 22 September 2005 with the assistance of an interpreter. However, no evidence was put before the Court sufficient to justify a further opportunity for the appellant to provide evidence. 13 The appellant, through an interpreter, told Nicholls FM that he had experienced difficulty in obtaining relevant documentation from the PRC as he had no one to assist him. Nicholls FM noted that whilst the Court was sensitive to problems that unrepresented, non-English speaking appellants face in pursuit of protection, the appellant's statement did not demonstrate any jurisdictional error. 14 Nicholls FM also noted that the Tribunal's decision was handed down a month after the scheduled hearing date, but that no attempt had been made by the appellant to explain his non-attendance at the hearing. His Honour noted that the Response to Hearing Invitation form contained a statement that the Tribunal would hear the Application for Review in the absence of the appellant if he failed to attend. Nicholls FM also added that the provisions of s 422B of the Act applied. 15 Nicholls FM considered the allegation that the Tribunal's decision was not based on a 'rational or logical foundation' but found there were no particulars provided in support of such allegation. He also considered the allegation that the Tribunal failed to consider the appellant's claims, but found that there was no basis for such assertion. 16 Nicholls FM also considered the allegation that the Tribunal had failed to provide particulars of independent country information and that it had failed to give the appellant an opportunity to respond to that information. His Honour relying upon Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 concluded that there was no obligation on the part of the Tribunal to provide to the appellant particulars of any such information or to provide the appellant with an opportunity to respond. His Honour further noted that the Tribunal's decision was based upon a lack of satisfaction that the appellant was a Falun Gong practitioner and that it did not rely on independent country information in reaching its decision. 17 His Honour also considered claims that the Tribunal was biased because it did not accept that the appellant was an 'underground Church member'. Nicholls FM noted that there was no material before the Court to justify such submission. Nicholls FM nevertheless considered the statement made by the appellant in his Protection Visa application wherein the appellant said of his Falun Gong practice, 'I believe it is like my religious belief'. Nicholls FM held that if the appellant was intending to refer to the Falun Gong movement as 'an underground Church' then the Tribunal's decision was based upon a lack of satisfaction that the appellant was so involved. His Honour found that no error existed merely because the Tribunal did not accept the merits of the appellant's claims. 18 His Honour referred to authorities demonstrating that actual bias required evidence of prejudgment by the decision maker: see Minister for Immigration and Multicultural and Indigenous Affairs v GIA [2001] HCA 17 at [69], [71-72], [127]. His Honour referring to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27-32] observed that where an apprehension of bias is raised a standard of reasonableness is to be applied, and His Honour noted that the appellant brought no evidence to ground such a complaint of bias, observing that rarely could such a complaint be established on the decision record alone: see FVAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872. 19 Nicholls FM also considered the submission that the Tribunal should have referred to 'independent materials'. However, His Honour noted that no such materials were specified by the appellant. 20 Lastly, Nicholls FM considered a submission that the Tribunal, prior to making its decision, should have notified the appellant of the reasons upon which it was to rely to refuse his application. His Honour found that the Tribunal's adverse thought processes do not constitute information for the purposes of s 424A(1) of the Act and that there was no obligation upon the Tribunal to put adverse findings to the appellant. His Honour referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [65] (per Moore J); at 206 (per Allsop J); Tim v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; VAAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123. His Honour also noted that the Tribunal had, by its invitation to attend the hearing alerted the appellant to the very issue with which it was concerned, namely insufficiency of details, and provided him the opportunity to attend the hearing to enable the appellant to provide further evidence. No such evidence was provided and Nicholls FM considered that there was no ground of reviewable jurisdictional error in the Tribunal's decision.

APPEAL TO THIS COURT 21 By Notice of Appeal filed in this Court on 5 September 2006, the appellant claims that he was not given a proper opportunity to explain his case; that the Tribunal was biased against him and did not consider his application according to law; that the Tribunal failed to carry out its statutory duty; and that the 'Federal Court' failed to find jurisdictional error made by the Tribunal. 22 The appellant attended the hearing before me and relied upon written submissions. The appellant submits that the Tribunal failed to carry out its statutory duty. The particulars in support of this submission claim that the Tribunal failed to comply with s 424A of the Act because it reached its decision without providing the appellant with an opportunity to comment upon the information used by the Tribunal as the reason or part of the reason for its decision. Reliance is placed upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and also upon Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27. The appellant also submitted that he was not given an opportunity to explain his case. He claims that the Tribunal made a decision on his application based upon 'the wrong independent information'. 23 Each of the grounds will be considered hereunder. FINDINGS

Lack of opportunity to explain his case 24 Pursuant to s 425 of the Act, the Tribunal is to provide an opportunity to an appellant to appear before it in order to provide further information. The invitation required by s 425 was provided to the appellant and it was received and acknowledged by him. However, the appellant did not attend the hearing. Nicholls FM did not accept that the appellant was detained in traffic. Before the Court today, in answer to a question relating to the reason for his non-attendance at the hearing before the Tribunal, the appellant merely responded that 'something happened'. Further, the appellant made no effort to communicate with the Tribunal between the time it notified him that a decision had been made and the delivery of its decision, to explain his absence or to offer any further information. Although the appellant claimed today that he had received no assistance, the appellant was nevertheless able to respond to the invitation to attend the hearing. No further explanation has been offered for his failure to contact the Tribunal to explain any alleged difficulty in attending the hearing. 25 The invitation provided by s 425 also contained the requisite notice indicating that the Tribunal would hear the matter at the appointed time. In these circumstances, the Tribunal was empowered pursuant to s 426A of the Act to proceed with the hearing: see SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. There is no merit in this ground of appeal.

Bias 26 No details have been provided which could sustain such ground. The function of this Court is not to review purported errors of the Tribunal, but rather purported errors of the Federal Magistrate: see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. However in the interests of justice the Court pays regard to the events before the Tribunal. 27 An allegation of bias raises a serious issue and must be founded on facts sufficient to give rise to the inference: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. There is no factual material raised before this Court which establishes bias on the part of the Tribunal. Accordingly, this ground has no merit.

The Tribunal failed to carry out its statutory duty 28 No particulars have been provided and the Court is unable to determine any error in the conduct of the Tribunal. The Tribunal made its decision on the ground that the material before it was inadequate to justify a finding that the appellant was a Falun Gong practitioner or that he would suffer any persecution if he were returned to the PRC.

Failure to find jurisdictional error 29 The Court has considered the decision both of Nicholls FM and that of the Tribunal. No errors have been particularised and none are apparent. 30 It follows that all of the grounds of appeal fail. Joinder of Tribunal 31 The Court notes that consistent with the High Court's decision in SAAP the Tribunal should be joined as a second respondent to these proceedings. The Court makes such provision in the orders. Costs 32 An order that the appellant pay the costs of the first respondent in the sum of $3700 is sought. According to a breakdown of costs submitted by the first respondent this amount appears to be within a reasonable range for costs and the Court will accordingly make such order. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 24 November 2006 Counsel for the Respondent: S McNaughton