SZHMJ v Minister for Immigration and Citizenship & Another

Federal Court of Australia|2007-02-12|Before: Cowdroy J

The applicant complained that the Tribunal member had from time to time interrupted him and that this was apparent from the tape of the proceedings. The applicant did not produce a transcript of the Tribunal proceedings.

It was conceded on behalf of the first respondent that unfairness in the sense of lack of procedural fairness on the part of the Tribunal may constitute a jurisdictional error. Her submission was that even taken at its highest the applicant's claims did not amount to a breach of procedural fairness. Even if the Tribunal asked questions in a stern tone, or if the applicant were interrupted, or that the proceedings were conducted by means of question and answer, this would not necessarily amount to procedural unfairness.'

"In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted (see s. 425(2)(a)) therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing does not of itself suggest actual bias in the relevant sense." ' 14 Accordingly, his Honour dismissed the submission that bias was demonstrated in the conduct of the application before the Tribunal. 15 As has been stated in SZEOQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1171 at [22] the principles relating to bias have been well established. Bias may be established if it can be demonstrated that the Tribunal member was actually biased, or if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question which the Court is required to decide: see Johnson v Johnson (2000) 201 CLR 488 at [11]; Vakauta v Kelly (1989) 167 CLR 568 at 575; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263. As was held by the Full Court of the Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] - [48], an allegation of bad faith is a serious matter involving personal fault on the part of a decision maker; such allegation is not to be lightly made and must be clearly alleged and proved; there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition; the presence or absence of honesty will often be crucial; the circumstances in which the Court will find an administrative decision maker has not acted in good faith are rare and extreme; mere error or irrationality does not of itself demonstrate a lack of good faith; errors of fact or law and illogicality will not demonstrate bad faith; the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do; and it is not necessary to demonstrate that the decision maker knew the decision was wrong. 16 It must be also borne in mind that proceedings before an inquisitorial tribunal are of a different nature to proceedings before a Court: see Re Refugee Review Tribunal and Anor; Ex parte H and Anor (2001) 75 ALJR 982 at [5]; Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at [4]. 17 The appellant essentially complains that he was treated sternly and was interrupted in the hearing before the Tribunal. No evidence of such conduct was found by Scarlett FM and none has been led before this Court. In Minister for Immigration & Multicultural Affairs v Jia Legeng 205 CLR 507 at [72] it was stated by Gleeson CJ and Gummow J that: 'The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.'

18 The above observations are consistent with those of the Full Federal Court in Minister for Immigration & Multicultural Affairs v SBAN [2002] FCAFC 431, referred to by Scarlett FM in his judgment. 19 In Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128, Kirby J at [90] said that any allegation of bias should be 'firmly established'. I am of the opinion that this test is not satisfied and accordingly that there is no basis for the ground of bias relied upon by the appellant.

(b) Alleged failure to comply with s 424A of the Act 20 This issue was raised before Scarlett FM who was unable to identify any information upon which the Tribunal relied other than that provided by the appellant. No details of this ground have been provided by the appellant to this Court. Accordingly the Court will refer to the events contained within the decision of Scarlett FM. 21 The appellant provided his passport to the Tribunal for the purposes of the review. Accordingly any information contained therein could be used by the Tribunal and did not breach s 424A(1) of the Act: see s 424A(3)(b) of the Act. It should also be observed that even if information other than that provided in the protection visa application was relied upon by the Tribunal, since no part of the information was used for the decision, no breach arises: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216]. 22 Having considered the findings of the Tribunal it is obvious that it reached its decision adverse to the appellant, not because it relied upon any information other than that provided by the appellant, but rather because there was simply inadequate evidence upon which it could conclude that the appellant was a genuine Falun Gong practitioner and that he had suffered any resultant harm. It was also not satisfied that the appellant faced any real chance of prospective harm if he returned to the PRC for this reason. Accordingly the Tribunal's decision was based on the lack of satisfactory evidence. In these circumstances it was entitled to reject the application: see SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201 at [24]. The Tribunal's decision was based on information provided by the appellant himself at the hearing. There is therefore no breach of s 424A of the Act since such information falls within the exception provided by s 424A(3)(b). 23 Since no further evidence has been offered relating to this issue, the Court is unable to find any error by Scarlett FM in his conclusion that the Tribunal had not erred in reaching its decision on this question. It must also be remembered that proceedings before this Court are concerned with the existence of errors of law demonstrated in the Federal Magistrates Court. 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].'

(c) Tribunal's decision not based on sufficient evidence 24 In the absence of further submission or evidence the answer to this ground of appeal rests in the observation of Scarlett FM that the Tribunal's decision resulted from its lack of satisfaction with the evidence adduced by the appellant in his application before it. The lack of detailed knowledge of the practice of Falun Gong displayed by the appellant, the time lapse of several years between his alleged detention and his departure for Australia, and his failure to engage in any Falun Gong activities in Australia led the Tribunal to consider that it was not satisfied that he was a genuine Falun Gong practitioner. 25 The Tribunal based its decision on the insufficiency of evidence. The Court is unable to find any jurisdictional error on the part of the Tribunal or in the decision of Scarlett FM.

(d) Failure by the Federal Magistrate to find error by the Tribunal 26 The Court has considered the decision of the Tribunal and the decision of Scarlett FM and is unable to determine any error in their respective decisions. The matters sought to be raised by the appellant essentially relate to the factual findings of the Tribunal. 27 It follows from the above findings that the appeal must be dismissed. 28 The first respondent has sought an order that the appellant pay the costs of the first respondent in the sum of $2800. Since this is within a reasonable range of costs, I will make the order sought. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Date of Hearing: 12 February 2007

Date of Judgment: 12 February 2007

(a) Bias 11 The appellant alleges that the Tribunal was biased in its determination of his application before it. As was explained to the appellant, the purpose of this appeal is to determine whether Scarlett FM erred in his determination, rather than to examine the conduct of the Tribunal (see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]). The Court will nevertheless deal with the issues raised by the appellant as grounds of appeal even though the errors complained of are alleged errors of the Tribunal. 12 The judgment of Scarlett FM contains the following relevant paragraphs: 'He told the Court that he thought that the Tribunal decision was unfair; he said that he was scared when he went to the Tribunal, and the Tribunal conducted its proceedings by asking a question and requiring him to answer. He said that the Tribunal asked questions in a stern manner, but corrected that in his submissions in reply to say that the tone of the questions was stiff rather than stern.

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