SZGXT v Minister for Immigration and Citizenship

DECISION OF TRIBUNAL 7 The appellant, through his migration agent, provided the Tribunal with a copy of his 'Certificate of Being Released from Prison' and a copy of his identification card. The certificate indicated that the appellant had been sentenced to imprisonment for two years for 'illegally possessing the assets owned by others'. 8 The Tribunal accepted that the appellant had been convicted of taking money and that as a result it would have been difficult for the appellant to find employment; that the conviction may have provided a motive for travelling overseas; and that the appellant's conviction would have made it difficult for him to travel. However, the Tribunal found the appellant's evidence concerning his involvement with the distribution of anti-government materials was unconvincing, especially as the appellant could only state the contents of the pamphlets he distributed in broad terms. The Tribunal did not consider it credible that the appellant would have been able to distribute the pamphlets for almost two years without attracting the attention of the PSB. The Tribunal did not accept the appellant was involved in any anti-government or pro-democracy movement. 9 The Tribunal accepted the appellant's evidence regarding his true identity but did not accept that he had been falsely imprisoned or imprisoned for the reasons which he claimed. The Tribunal concluded that the appellant had used a false passport because he feared that he would not be able to obtain a visa due to his conviction. The Tribunal did not accept that the PSB investigated the appellant's family nor that his family was told that he was a key person involved in anti-government activities. The Tribunal did not accept there was a real chance that the appellant would be involved in anti-government activities in the reasonably foreseeable future, and concluded that the appellant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1954.

DECISION OF FEDERAL MAGISTRATE 10 The appellant sought judicial review of the Tribunal's decision claiming that the decision of the Tribunal was attended with jurisdictional error and a breach of natural justice. Six particulars were provided, including allegations that the appellant had a reasonable apprehension that the Tribunal was biased against him; that the Tribunal ignored the appellant's claims; that the Tribunal misunderstood the law and specifically the meaning of 'refugee'; that the Tribunal asked a wrong question; that the Tribunal exceeded its powers; that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) ('the Act'); that the Tribunal failed to comply with s 425 of the Act; and that the Tribunal failed to assess the application fairly and carefully. 11 Smith FM did not accept that there was a reasonable apprehension of bias or that the Tribunal deliberately ignored the appellant's claims. His Honour was not satisfied that there was a breach of s 424A(1) of the Act as the information in the original visa statement had been republished to the Tribunal by the appellant's agent. His Honour found that there was no denial of a real and meaningful hearing. Smith FM was satisfied that the Tribunal performed its review according to law and accordingly dismissed the application.

APPEAL TO THIS COURT 12 In his Notice of Appeal the appellant raises two grounds, namely that Smith FM erred in law and that his Honour was wrong in finding that the Tribunal had acted properly in making its findings. Six particulars were provided in support of these grounds similar to those before Smith FM. 13 At the hearing of the appeal before me the appellant submitted that the Tribunal was wrong in its finding concerning the reason for his imprisonment and his participation in anti- PRC government activities. He submitted that Smith FM also erred by accepting such findings. The appellant informed the Court that his migration agent had prepared the Notice of Appeal for him and that his challenge was based upon the factual findings of the Tribunal.

FINDINGS 14 It was explained to the appellant that the function of this Court is not to review purported errors of the Tribunal, but rather purported errors of the Federal Magistrate: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]; SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. This Court has no power to undertake a merits review of the decision of either the Tribunal or the Federal Magistrate. The role of the Court in an appeal such as this was stated succinctly by Mason J (as he then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-41, where his Honour said: 'The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41].' 15 Because the appellant is not legally represented, the Court will consider each of his claims as contained in the Notice of Appeal. During the hearing, each of these matters was raised with the appellant. 16 There is no evidence of bias as claimed. The appellant merely said that the Tribunal made a wrong decision. The test for bias was explained by the High Court of Australia in Re Refugee Tribunal; Ex Parte H (2001) 75 ALJR 982 at [27]-[32]. To satisfy such allegation the appellant would need to show that 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' (see at [27]). In the absence of a transcript of the hearing before the Tribunal it was not possible for Smith FM to find any basis for an assertion of an apprehension of bias on the part of the Tribunal. 17 Further, a claim of bias raises a serious allegation in respect of which there must be specific matters identified by the appellant (see: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] - [48]; see also Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128 per Kirby J at [90]). In The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex Parte The Angliss Group (1969) 122 CLR 546 at 553 - 554 the High Court said: 'Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who came before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the question arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not found any views or inclination of mind upon or with respect to it.' See also The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 259. 18 The appellant has not referred to any specific matters which could possibly justify a finding of apprehension of bias by either the Tribunal or Smith FM. 19 In respect of the appellant's claim that the Tribunal misunderstood the law, and the meaning of the word 'refugee', there is no basis for a finding that there was any misunderstanding as alleged. The Tribunal correctly found that the appellant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1954. 20 There is no evidence that the Tribunal exceeded its powers or committed any jurisdictional errors as alleged by the appellant. The Tribunal identified each of the appellant's claims and was entitled to make its factual findings based on the material before it. 21 In the absence of particulars, the Court is unable to find any breach of s 424A of the Act by the Tribunal. The appellant merely stated that all of the information was provided by himself and that the Department and the Tribunal should have provided information to the appellant. 22 The Court notes that the appellant attended the hearing of the Tribunal. In the absence of any particulars, the Court is similarly unable to find any breach of s 425 of the Act. 23 The Court has considered the decision of the Tribunal and of Smith FM and is unable to discern any error which would justify this Court upholding the appeal. The Tribunal made its factual findings based upon an adverse credit finding of the appellant. The Tribunal has carefully considered the appellant's claims and found that they are not sustainable. Smith FM has similarly considered each ground of appeal and found no error. Accordingly the Court will dismiss the appeal. 24 The Minister has sought an order for costs of this appeal in the amount of $2800. Since this is within a reasonable range for costs the Court will make such an order. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 25 May 2007 Counsel for the Appellant: The appellant appeared in person