SZIFS v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal

FEDERAL MAGISTRATES DECISION 7 The appellant raised four grounds of review before Scarlett FM, namely that the Tribunal failed to recognise the principle of non-refoulement contained in Article 33 of the 1951 Convention Relating to the Status of Refugees ('the Convention'); that the Tribunal erred in finding a lack of bona fides on the basis that the Tribunal acted with a closed mind or proceeded on the basis that it was seeking reasons to decide against the appellant; that the Tribunal erred in questioning the appellant's credit; and that the Tribunal erred in its construction of the Migration Regulations or Part 8 of the Migration Act 1958 (Cth) ('the Act'). 8 At the hearing before His Honour, the appellant did not argue the last ground of appeal nor the claim that Tribunal had failed to recognise the principle of non-refoulement contained in Article 33 of the Convention. 9 Scarlett FM dismissed the claim of bias against the Tribunal. His Honour found that the Tribunal had initially considered the appellant's oral evidence to be contradictory and confused but that it had made allowances for cultural factors and the difficulty of expressing abstract spiritual concepts and gave 'the most generous possible interpretation of the applicant's claims'. 10 His Honour also dismissed the claim made by the appellant for the first time in written submissions provided to the Federal Magistrates Court alleging pursuant to s 424A that independent country information had not been provided. His Honour noted that there is no obligation on the Tribunal to give the appellant full details of such information because of the exception to s 424A(1) of the Act contained in s 424A(3) of the Act. His Honour found that the Tribunal's obligations to provide procedural fairness is restricted by the operation of s 422B of the Act. 11 Scarlett FM found no error on the part of the Tribunal.

APPEAL TO THIS COURT 12 The Notice of Appeal to this Court raises four grounds, namely that Scarlett FM erred in failing to recognise the principle of non-refoulement contained in Article 33 of the Convention and erred in failing to find that the Tribunal had erred in not applying this principle; that His Honour erred in relying on the decision of Makhu v Minister for Immigration [2004] FCA 221 in relation to the way in which the Tribunal dealt with the appellant and her representative; that His Honour erred in failing to find that the Tribunal's finding of the appellant's lack of bona fides was due to the Tribunal acting with a closed mind or proceedings on the basis that it was seeking reasons to decide against the appellant; and that Scarlett FM erred in failing to consider whether the Tribunal's overall findings and the alleged errors contained within those findings showed the lack of a bona fide attempt to consider the application. 13 The appellant appeared at the hearing before me and sought an adjournment on the basis that she needed time to prepare documents for the hearing. The appellant claimed that she was only notified of the date for hearing of her appeal two weeks prior to the hearing and that she did not have enough time to seek advice. 14 The Court observed that the appellant was informed by letter dated 4 October 2006 of the hearing date. No explanation has been provided for her failure to obtain legal advice since that date. The appellant claims that she had sought advice previously from Mr Deng, who purported to be a migration agent, and that she had paid him the sum of $6000 in fees. 15 The Court declined to grant the adjournment requested by the appellant. However an extension of time to 4 pm on 24 November 2006 was granted to enable the appellant to provide further written submissions. Written submissions were received pursuant to that leave. In those submissions the appellant claims that the Tribunal breached of s 424A of the Act and that it should have informed her of the services available to obtain legal assistance or migration advice through a migration service. She claims that it was only during the Tribunal hearing that a Chinese interpreter explained the review power of the Tribunal under the Act and that had she been so informed she would not have been misled by her adviser. The appellant also sought a further extension of time in which to prepare further submissions and requested another hearing in this Court.

Did His Honour fail to recognise the principle of non-refoulement contained in Article 33 of the 1951 Convention? 16 Article 33(1) of the Convention imposes an obligation upon signatories thereto not to expel a person, who is found to be a refugee within Article 1A(2), to a territory in which there is a threat to his or her life or freedom for a Convention reason. It is necessary for a person to be found to be a refugee before there can be a breach of Article 33(1). 17 The appellant submits that His Honour failed to recognise this principle contained in Article 33 of the Convention and failed to find that the Tribunal erred also in failing to apply this principle. 18 The appellant did not argue this ground. Further, neither the Tribunal nor Scarlett FM considered the principles of non-refoulement for the reason that it had not been determined that the appellant satisfied the criterion for refugee status under the Act. Accordingly, this claim cannot succeed. If, by virtue of it, the appellant is seeking a review on the merits, this is not appropriate in judicial review. 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].'

Did His Honour err in relying upon the decision of Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221? 19 Scarlett FM did not rely upon or refer to such authority in reaching his decision. Further there is no basis for such submission. The decision only becomes relevant in circumstances in which an appellant has nominated a migration agent or other adviser. This was not the case in these proceedings, and the decision in Makhu is irrelevant.

Lack of bona fides 20 Scarlett FM found that the appellant's evidence did not convince him that she had a well founded fear of persecution for a Convention reason. His Honour did not make a finding that there was a lack of bona fides on the part of the appellant; rather the appellant's credit was a significant matter in His Honour's reasoning. His Honour found that the claim of bias by the Tribunal had not been established. In so doing, Scarlett FM correctly set out the principles which are well recognised and applied by this Court, when his Honour said: 'It is well-established that bias is a serious allegation as it alleges personal fault on the part of the decision-maker. It must be strictly pleaded and strictly proved. The Full Court of the Federal Court has made it clear in matters such as SBBS v The Minister for Immigration & Multicultural Affairs [2002] FCAFC 361 that it is rare, to say the least, that bias will be established purely from the Tribunal's reading - reasons for decision.'

21 There is no error in Scarlett FM's conclusions and accordingly the Court dismisses this ground of appeal.

Failure of Scarlett FM to consider Tribunal's overall findings 22 No particulars have been provided of this claim. However, it is apparent that Scarlett FM considered the Tribunal's reasons and its decision in detail before reaching his conclusion that there was no reviewable error by the Tribunal. Accordingly, this ground also fails.

Breach of s 424 of the Act 23 No particulars have been provided of such claim in the appellant's further written submissions. While it is apparent that the decision of the Tribunal referred to independent country information, such information is exempted, by operation of s 424A(3), from the requirement to provide relevant information to an appellant pursuant to s 424A(1). No apparent error exists as claimed and accordingly this ground is rejected.

Obligation of Tribunal to refer appellant to advice services 24 The Court observes that there is no statutory obligation upon the Tribunal to provide legal advice or to refer applicants to a migration service. Further, Scarlett FM noted that the appellant confirmed that she had sought and received advice from a solicitor on the Tribunal's Legal Advice Panel. The appellant retained Mr Deng as her legal and migration adviser, and is critical of the service she was provided in relation to her migration matters. However, misconduct on the part of a migration agent does not give rise to a reviewable error of law: see Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. 25 In light of the extension of time granted to the appellant to enable her to prepare further written submissions, and the fact that she has had since at least 4 October 2006, the date on which she was informed of the hearing date of her appeal, to avail herself of legal advice, I do not consider a further extension of time or another hearing is warranted. 26 I can find no error in the decision of Scarlett FM or the Tribunal, and accordingly the appeal must be dismissed.

Costs 27 The first respondent has sought an order that the appellant pay the first respondent's costs in the sum of $2500. Since this amount is within a reasonable range for costs the Court will make such order. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Solicitor for the Respondent: Australian Government Solicitor