SZHXW v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 21 November 2006 dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) for declarations in relation to, and orders quashing, a decision of the Refugee Review Tribunal ('the Tribunal') made on 25 October 2005, and handed down on 17 November 2005, in which the Tribunal affirmed a decision the delegate of the respondent Minister to refuse the appellant's application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). 2 The appellant's Notice of Appeal contains three grounds: first, that the Tribunal was biased in relation to his application; secondly, that the Tribunal failed to comply with s 424A(1) of the Act; and thirdly, that the Tribunal failed to comply with its obligations under s 425 of the Act. 3 As to the allegation of bias, the appellant has told me that he raised the same allegation before the Federal Magistrate, but there is no reference to it in his Amended Application filed in the Federal Magistrates Court, there is no reference to it in the reasons for judgment given by the Magistrate, and there is no affidavit on the subject. I would find, therefore, that the matter was not raised, or at least not properly raised, before the Magistrate, and that the appellant should not be permitted to raise the point now for the first time without the leave of the court. 4 The considerations by reference to which I should consider such an application for leave are those identified by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 85. Although his Honour referred to eight questions which it might be appropriate to take into account, the present circumstances are so completely covered by the first two items on his Honour's list as to make it unnecessary for me to give specific attention to the other six. 5 The first question is whether the new legal arguments have a reasonable prospect of success. I have read the decision of the Tribunal, and there is nothing in the decision itself which would sustain even a colourable suggestion that the Tribunal was biased against the appellant. The appellant has not put any evidence before me of circumstances from which one might infer bias, and I am disposed therefore to the view that if the appellant were permitted to run a case of bias before this court, it would have no prospect of success. 6 As to the second question referred to by Madgwick J, the appellant has offered no explanation as to why his bias allegation was not made before the Magistrate. 7 In the circumstances I am not prepared to grant leave to the appellant to allow him to include an allegation of bias against the Tribunal within his grounds of appeal. 8 For the sake of completeness I mention that the appellant in his Notice of Appeal also alleged that the Magistrate was biased against him. It is sufficient if I say that nothing that he has put before me, either by way of evidence or by way of argument, comes close to sustaining such a serious allegation. I have seen this allegation of bias in a number of Notices of Appeal in proceedings arising under the Act recently, and I regret to say that one gets the impression that allegations of this kind are resorted to much more liberally than the circumstances ever seem to justify and without an apparent consciousness of the seriousness of the accusation involved in them. I do not either state or imply that the present appellant was cavalier in his use of this accusation, but his Notice of Appeal will certainly fit within a pattern which is of some concern. 9 With respect to the second ground taken in the Notice of Appeal, that arising under s 424A of the Act, the appellant appears to make two main points. The first is that the Tribunal relied upon what is commonly described as independent country information without giving him details of that information in writing as required by the section and without ensuring that he understood why the information was relevant to the review being conducted by the Tribunal. I accept the submissions made on behalf of the Minister that the information to which the appellant here refers is information that was not specifically about him but was information about general facts and circumstances, and therefore comes within paragraph (a) of s 424A(3). Information of that kind is excluded from the requirements of subsection (1) and I do not therefore uphold this aspect of the second ground of appeal. 10 The other aspect of this ground of appeal is that the Tribunal relied upon information which related to the circumstances under which the appellant left China. The Tribunal did observe that the appellant left China legally and on a passport issued in his own name. The Tribunal thought it unlikely in all the circumstances that the Chinese authorities would have permitted the appellant to depart on his own passport if in fact they were seeking to persecute him as he alleged in his protection visa application. The appellant seems to contend in this ground of appeal that the fact the he left the country on his own passport and in his own name was information of the kind that ought to have been given to him in the way required by s 424A(1) of the Act. However, it is established in judgments of this court to which the Federal Magistrate referred, namely, M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] and SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611, that where information originating in the details provided by an applicant for the purposes of his protection visa application is effectively republished in the applicant's application for review in the Tribunal, it falls within the exclusion set out in s 424A(3)(b). That is to say, it is proper to treat such information thereafter as information given by the applicant for the purposes of the application. 11 In the present case, the appellant's application for review made on 24 July 2005 and addressed to the Tribunal specifically asked the Tribunal to refer to his statutory declaration which was attached to his primary application, and to the details of his claims set out in his primary application. In the view of the Magistrate who decided this case, the appellant thereby republished, for the purposes of his application for review, the information which the Tribunal used in part to affirm the decision under review. I can see nothing erroneous or mistaken as to the way in which the Magistrate dealt with this aspect of the case, and I would therefore reject this point under s 424A. 12 The third ground of appeal takes in s 425 of the Act, and alleges that the Tribunal denied the appellant his rights to give evidence properly, and to advance his arguments as he was entitled to do having been invited to appear before the Tribunal under that section. In his Notice of Appeal, he alleges that he was interrupted by the Tribunal, was given insufficient time, was allowed to answer questions in a simple manner only, was not allowed to provide details and was denied his rights to present his arguments relating to the issues which arose. The Federal Magistrate said that this ground had been a feature of a number of applications to that court over the previous 12 to 18 months. He pointed out correctly that there was no evidence before him as to the conduct of the oral hearing before the Tribunal, and that remains the case in this court. In the circumstances, the Federal Magistrate had no option but to reject this line of argument, and I cannot see any error in his proceeding in that way. 13 For the above reasons I propose to dismiss the appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jessup.