SZJMX v Minister for Immigration and Citizenship

Grounds of appeal 6 The Notice of Appeal states the following: 1. The Tribunal had bias against me and failed to consider the claims of my Application accordingly. 2. The Tribunal failed to consider my Application according to s424A of the Migration Act 1958. The Tribunal failed to notify me in writing the reason or part of the reasons affirming the decision. I was not given an opportunity to comment upon the information which formed the reasons for affirming the decision. 3. The Tribunal's satisfaction that I am not a refugee was not based on a rational and logical foundation.

7 The Appellant's oral submissions repeated the alleged errors committed by the Tribunal, and further contended that the Department breached s 91R of the Migration Act 1958 (Cth). Difficulties are frequently encountered when the Court is confronted with an unrepresented party; however, to the extent that each ground of appeal or concern raised by the Appellant is understood, each is to be rejected.

The first ground 8 The first ground of appeal raised in the Notice of Appeal is that the Tribunal was biased against the Appellant. 9 An allegation of bias or prejudice must be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], 205 CLR 507. Before this Court, there was no elaboration as to how this ground was to be advanced. In rejecting a claim of bias previously raised, the Federal Magistrate relevantly concluded: [18] The applicant claims that the Tribunal was biased against him because it believed he did not participate in Falun Gong activities in China or Australia. The applicant has adduced no evidence as to the conduct of the Tribunal at the hearing nor anything else which would suggest that the Tribunal's mind was closed to persuasion or that it had prejudged the issue. Nor is there anything adduced by the applicant to suggest that the Tribunal's conduct at the hearing would lead a reasonable person to apprehend that such was the Tribunal's state of mind. [19] An allegation of bias has to be clearly made and clearly proven and in the absence of anything other than the Tribunal's decision itself there is no basis upon which I could conclude in the circumstances of these proceedings that there is any basis to this asserted ground of review. Based on the material before me, I find that this assertion is not made out and consequentially jurisdictional error is not demonstrated in respect of it. Assuming the same argument is sought to be raised in this Court, it is rejected for the same reasons. 10 The first ground of appeal is to be rejected.

The second ground 11 The Appellant did not explain the basis for this ground before this Court. There is no elaboration as to the manner in which, as it is alleged, the Tribunal failed to "consider my Application according to section 424A", the manner in which it is said that the Tribunal failed to explain its decision, nor any elaboration as to the "information" which formed part of the reasoning process which it is said the Tribunal should have disclosed. 12 Before the Federal Magistrate, however, the Amended Application there relied upon provided in relevant part: The Tribunal acted in breach of section 424A of the Migration Act 1958 and in breach of the laws of procedural fairness and/or natural justice by failing to put to the Applicant for comment the independent country information on which it impliedly relied in making its determination. As a consequence the decision is affected by jurisdictional error and must be set aside. This ground was further elaborated before the Federal Magistrates Court by way of "particulars", including reference to the Tribunal taking into account: …country information possibly adverse to the Applicant regarding the situation of Falun Gong practitioners in China and the treatment of Falun Gong practitioners by the Chinese authorities. 13 In seeking to resolve the present ground of appeal, this Court has sought to understand the second ground, both by reference to the Appellant's oral submissions today and to the arguments previously advanced before the Federal Magistrates Court. 14 The "independent country information" would fall within s 424A(3)(a) and, as held by the Federal Magistrate, there would be no breach of s 424A(1). See also SZFQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1522 and SZCMD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1003 at [20] per Ryan J. Insofar as a complaint is made as to the inadequacy of reasons provided by the Tribunal, it may be noted that the obligation imposed upon the Tribunal is that set forth in s 430(1) of the 1958 Act. That subsection provides as follows: Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b)sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d)refers to the evidence or any other material on which the findings of fact were based. The reasons and decision of the Tribunal have again been reviewed and there is no apparent failure to comply with s 430(1), in particular, s 430(1)(b). The learned Federal Magistrate was of the same conclusion. 15 The contention that the Appellant was "not given an opportunity to comment upon the information which formed the reasons for affirming the decision"also seems to be misplaced. There is no obligation upon the Tribunal to permit a party an opportunity to comment upon the development or evolution of its reasoning process. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], 235 ALR 609, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded that s 424A does not oblige the Tribunal to give advance notice of "each step in its prospective reasoning process". 16 Ground 2 of the Notice of Appeal should be dismissed.

The third ground 17 This ground confronts an initial difficulty. The Respondent Minister has submitted that this ground was not raised before the Federal Magistrate and ought not now be raised for the first time on appeal to this Court. Leave to raise the additional ground, it was submitted, should be refused. Reliance was placed by the Respondent Minister upon H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348, 63 ALD 43. Leave was there refused by the Full Court to raise on appeal an argument that had not been advanced before a single judge of this Court. Assuming that similar considerations to those canvassed before the Full Court in H v Minister for Immigration and Multicultural Affairs, supra, now apply when hearing an appeal from a decision of the Federal Magistrates Court, it is not considered that leave to rely upon this ground of appeal should be refused solely on the basis that it was not previously relied upon. 18 The new ground does not raise for consideration any issue which could have been addressed, for example, by evidence had it been raised earlier. Leave may be refused in such situations. In other circumstances, such as where the new ground raises exclusively a question of law or where there is no controversy as to the relevant facts, it may be expedient in the interest of the administration of justice to consider a fresh argument: see Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47 per Nicholson J. In the present proceedings, the new ground requires this Court to do no more than review the reasons provided by the Refugee Review Tribunal. 19 One disadvantage in pursuing such a course is that this Court is necessarily denied the benefit of a decision and reasons of the Federal Magistrate. It is obviously desirable that all grounds of review should be raised for consideration and resolution by the Federal Magistrates Court. This Court should not be denied the considerable benefit of the reasoning processes of that Court. In the present proceedings, however, the Court has been assisted to some extent by the following observations where the Federal Magistrate observes: [17] The Tribunal expressed its reasons for its decision logically and with sufficient clarity for the basis of its decision to be clear, compliant with s.430 and was open to it. Consequently, no jurisdiction error is demonstrated in relation to this asserted ground of review. 20 It matters not in the present proceedings whether leave to raise the new ground is granted or refused. The argument sought to be now advanced is to be rejected for at least two reasons. First, this purported ground of appeal is considered to be little more than an argument that the Appellant would have liked a different factual conclusion to have been reached by the Tribunal. So construed, no jurisdiction error is exposed. In Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30, 198 ALR 59, Gleeson CJ cautioned against an indiscriminate use of the term "illogical". His Honour there referred to the judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, and continued: To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact [Australian Broadcasting Tribunal v Bond [1990] HCA 33, 170 CLR 321 at 356 per Mason CJ]. On the other hand, where there is a duty to act judicially, a power must be exercised "according to law, and not humour" [Sharp v Wakefield [1891] AC 173 at 179 per Lord Halsbury LC] and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond [supra, at 367] may involve non-compliance with the duty. Furthermore, where "the true and only reasonable conclusion contradicts [a] determination" then the determination may be shown to involve legal error [Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3, [1956] AC 14 at 36 per Lord Radcliffe; Vetter v Lake Macquarie City Council [2001] HCA 12,202 CLR 439 at 450]. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged. 21 It is considered that this ground of appeal is no more than an assertion that a different decision-maker entrusted with the merits could have reached a different conclusion. Such an assertion does not establish "jurisdictional error". Second, a review of the Tribunal's reasons does not, in any event, expose any irrationality or lack of logic. The conclusion of the Tribunal was expressed as follows: Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to who Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the applicant does not satisfy the criterion set out in subsection 36(2) for a protection visa.

Before reaching that conclusion, the Tribunal set forth a detailed account of the law, a recitation of the claims and the evidence before it, and its "findings and reasons". There is no apparent lack of logic or rationality in any part of that reasoning process such as to attract jurisdictional error. 22 This ground of appeal is also to be rejected.

Section 91R 23 The Appellant in his written statement at the outset of these proceedings, as interpreted, sought to rely upon a breach of s 91R. The manner in which that section was said to have been breached was not elaborated upon. Leave to raise this additional ground was refused. The Court should not lightly entertain any unparticularised allegation, especially when raised for the first time on appeal. Orders 24 The orders of the Court are:

1. The Appeal be dismissed.
2. The Appellant is to pay the First Respondent's costs of and incidental to the appeal. I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

The Appellant Self represented Solicitor for the First Respondent: Michael Snell (Sparke Helmore) Date of Hearing: 15 November 2007 Date of Judgment: 15 November 2007