SZIFJ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Appellant applied for what is known as a protection visa under the Migration Act 1958 (Cth), what now must seem to him, and is, on any view, a long time ago. That was on 20 December 2001 when he lodged his application with the Department of Immigration and Citizenship. He had arrived in Australia earlier that month from Hong Kong, a special administrative region within the People's Republic of China. The Appellant is a citizen of the People's Republic of China. At the time, the basis upon which the Appellant advanced a claim for a protection visa was his practice of Falun Gong, and a fear of persecution which he stated he had on the basis of the practice of Falun Gong in China. 2 On 13 March 2002, a delegate of the Minister for Immigration and Citizenship (Minister), who is the First Respondent to this appeal, refused the application for a protection visa. In the following month, on 4 April 2002, the Appellant sought the review of that Minister's delegate's decision by the Refugee Review Tribunal (Tribunal). Over a year later, on 22 April 2003, the Tribunal decided to affirm the decision not to grant the Appellant a protection visa. The better part of three years then passed before there was any challenge by way of judicial review to that Tribunal decision. 3 On 30 January 2006, an application was made to the Federal Magistrates Court for the judicial review of the Tribunal's decision of 22 April 2003. In the result, that application was successful: see the reasons for judgment of the Federal Magistrates Court in SZIFJ v Minister for Immigration [2008] FMCA 1170, delivered 25 August 2008. As a result of that successful challenge, the case was remitted for hearing afresh on the merits in the Tribunal. 4 On 30 December 2008, a differently constituted Tribunal affirmed, once again, the decision of the Minister's delegate not to grant the Appellant a protection visa. A further challenge by way of judicial review proceedings in the Federal Magistrates Court followed. On this occasion, the Appellant was unsuccessful. On 27 May 2009, the Federal Magistrates Court dismissed the Appellant's application for judicial review: see SZIFJ v Minister for Immigration [2009] FMCA 501. 5 The basis upon which the second Tribunal decision was challenged before the Federal Magistrates Court was apprehended bias on the part of the Tribunal. In this Court that ground is not repeated in the notice of appeal. Rather the notice of appeal contains two grounds which are as follows: 1. His Honour erred in failing to find that the Second Respondent failed to take into account relevant considerations. Particulars (a) The Second Respondent failed to consider whether or not the Appellant, by reason of his status as a repatriated asylum seeker, member of the ethnic majority belonged to a particular social group for the purposes of the Convention. 2. His Honour, bound by authorities of this Court, erred in failing to find that the Second Respondent breached section 424AA of the Migration Act and in failing to find that the Second Respondent's breach of section 424AA gave rise to jurisdictional error. Particulars (a) The Appellant asserts that a number of matters decided by this Court were wrongly decided in relation to this point, including, but not limited to SZLXI v Minister for Immigration [2008] FCA 1270 and SZLWI v Minister for Immigration [2008] FCA 1330. 6 The Appellant did, though, in oral submissions, advance with particular force a submission that the proceedings before the Federal Magistrates Court had been unfair. He also repeated a concern that the proceedings before the second Tribunal had not been fair. 7 The Appellant would need leave from the Court to advance as a ground of appeal each of the unfairness complaints that he articulated in his oral submissions. In deciding whether or not to grant that leave the merits of those proposed additional grounds would relevantly fall for consideration. Given this and particularly because the Appellant is not today legally represented and so that he leaves the Court with a feeling that his complaints have been considered, I do propose to deal with the unfairness complaints on their merits. Before so doing, I shall consider the grounds of appeal that are specified in the notice of appeal. 8 In that regard it should not be assumed that these grounds also can be advanced as of right. On behalf of the Minister it was highlighted, correctly, with respect, that, not having been bases of challenge in the Federal Magistrates Court to the second Tribunal's decision, leave to raise these grounds was necessary: see H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43. In their joint judgement in that case (at para 7, p 45) Branson and Katz JJ draw attention to an observation earlier made in the High Court in Coulton v Holcombe (1986) 162 CLR 1 at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main area for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 9 Where a Tribunal decision is manifestly afflicted with jurisdictional error it is possible to conceive of circumstances where the omission to raise such an error as a basis of challenge may not be fatal to the permitting of an Appellant to raise such a basis of challenge as a fresh ground of appeal in this court. It is to be remembered though that even before the Federal Magistrates Court the granting of relief on a judicial review application calls for the exercise of a judicial discretion. 10 It is convenient to consider in deciding whether to grant leave in relation to the specified grounds of appeal their merits. 11 The first ground is not altogether easy to understand. It does look though to be a basis upon which challenge is made to a failure on the part of the Tribunal to take into account the Appellant's position in China were he to be returned as someone who had sought asylum in Australia. This was not a basis upon which the Appellant pressed his claim for a protection visa before the Tribunal on the second occasion. The Tribunal was not obliged to go looking for a protection visa claim that the Appellant did not himself advance. 12 It is to be recalled as well that the Tribunal explicitly turned its mind to whether there was any other basis of fear of persecution advanced. The Tribunal noted that there was no claim other than that grounded in the practice of Falun Gong: see, particularly, para 87 of the Tribunal's reasons. There is no merit in ground 1, therefore. 13 As to ground 2, there are decisions of judges of this Court in respect of s 424AA which hold that the extending of an oral invitation to provide information in response to particulars furnished by the Tribunal is permissive, rather than a matter of obligation. See SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589; and SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134. The ground of appeal invites me not to follow those decisions. I would only do that if I were persuaded that they are clearly wrong. On its face, the language of s 424AA is eloquent in the contrast between the use of the word "may" in para (a), and the use of the word "must" in para (b). As a matter of construction, it seems to me that para (a) of s 424AA is, indeed, permissive. I am not persuaded, on the basis of that examination, that either of the decisions mentioned should not be followed. 14 There is, in any event, a theoretical quality to ground 2, in the sense that it requires an evidentiary foundation. It looks to me as if the Tribunal did not seek to go down the path described in s 424AA, but, rather, availed itself of the procedure for the dispatch of a written request for information pursuant to s 424A of the Act. However one approaches ground 2, either in terms of the construction of the Act, or its evidentiary foundation, it seems to me that there is no merit in that ground. 15 That, then, leaves the question of unfairness, either before the Federal Magistrate or in the Tribunal. 16 It can be very difficult for a person without legal training to understand the difference between the review of a decision on the merits and a review of the decision for administrative law error grounds. That difficulty can only be compounded when English is not one's first language. 17 A concern which the Appellant voiced in his oral submissions with respect to the Federal Magistrates Court proceeding under appeal was that the Magistrate had not spoken with him directly. The Appellant was represented by solicitor and counsel before the Federal Magistrates Court. It would, therefore, have been most unusual indeed for the Federal Magistrate to have addressed him directly. Rather, the submissions and responses to submissions were made on his behalf by his legal representatives. The position would, of course, have been different had the Federal Magistrates Court any role in making a decision on the merits as to whether the Appellant should receive a protection visa. One might, in that circumstance, fully have expected questions to be raised with the Appellant directly, but that was not the role of the Federal Magistrates Court. I can well understand, having regard to the difficulties in a layman's drawing a distinction between merits review and judicial review, how the Appellant has been left with a feeling that the hearing was not satisfactory in the Federal Magistrates Court. While I accept that that is a genuine feeling honestly expressed to me, it is, with respect, a misplaced feeling. The only evidence which I have of the proceedings before the Federal Magistrates Court comprises the reasons for judgment of that court. Those reasons disclose a close engagement by the learned Magistrate with the only ground of review advanced before her. 18 On the question of whether the second Tribunal's decision was affected by an apprehension of bias, a reading of those reasons discloses a canvassing of pertinent authority and an application of that authority to the facts, such as they were, of the proceedings before the second Tribunal, I discern no error on the part of the learned Magistrate in dealing with the challenge that was made. In expressing that view, I have separately scrutinised the reasons of the second Tribunal and find myself in agreement with the way in which the Federal Magistrate dealt with the apprehended bias challenge. It follows from this that unfairness, either at Tribunal or Federal Magistrates Court level, even though informally expressed in submissions as a ground of appeal, is not one which can succeed. 19 The appeal must therefore be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.