SZJVA v Minister for Immigration and Citizenship - [2008] FCA 1631 - FCA 2008 case summary — Zoe

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SZJVA v Minister for Immigration and Citizenship

[2008] FCA 1631

Federal Court of Australia|2008-11-05|Before: Besanko J, McKerracher J

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Source facts

Court

Federal Court of Australia

Decision date

2008-11-05

Before

Besanko J, McKerracher J

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

INTRODUCTION 1 The appellant is a Chinese citizen. He arrived in Australia on 16 June 2004. On 13 July 2004 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application for a protection visa on 29 July 2004. On 28 August 2004 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the delegate's decision not to grant a protection visa to the appellant on 9 December 2004. On 4 January 2005, the appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court (he was then allocated the pseudonym 'SZFJO'). On 15 December 2005, the Federal Magistrates Court dismissed that application (SZFJO v Minister for Immigration & Anor [2005] FMCA 1964). 2 The applicant appealed to the Federal Court and on 10 May 2006 Besanko J made orders quashing the decision and remitted the matter back to the Tribunal. It is that reconsideration which has given rise to these proceedings. When the appellant sought judicial review of the second Tribunal decision in the Federal Magistrates Court he was allocated the current pseudonym of 'SZJVA'. 3 This appeal is from a judgment of a Federal Magistrate delivered on 25 June 2008 (SZJVA v Minister for Immigration & Anor [2008] FMCA 824). By that decision her Honour dismissed the application for judicial review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 November 2006.

[2]

[4]

ON REVIEW BY THE FEDERAL MAGISTRATES COURT 9 Before the Federal Magistrate the appellant claimed: 1. The Tribunal decision was affected by bias as it ignored or failed to consider claims made by the appellant. He also asserted that the Tribunal ignored relevant material or misunderstood the appellant's claim or made a mistake in relation to an important finding of fact; 2. The Tribunal ignored additional information and claims submitted by the appellant in response to the s 424A letter; 3. The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Act) as it did not provide the appellant with the genuine information used in its reasons for determining the application. 4. The Tribunal failed to comply with s 425 of the Act as it failed to arrange another hearing for the appellant where it was unable to make a decision in favour of the appellant according to additional information or material provided to it. 5. The Tribunal identified a wrong issue, relied on irrelevant material and made an erroneous finding. The application was not assessed fairly and properly. 10 The learned Federal Magistrate observed that in the absence of the transcript of the hearing it could not be inferred on the material before the Court that the Tribunal was biased or that there was a reasonable apprehension of bias. Her Honour found that the Tribunal's credibility finding went to the entirety of the appellant's claims and it was not necessary for the Tribunal to make specific findings in relation to every factual contention raised by the appellant. 11 In relation to the second claimed ground, her Honour was satisfied that the Tribunal did consider the appellant's responses, but that it did not accept the appellant's account or the reasons given for the variations in his claims. 12 On the third claimed ground the Federal Magistrate held that information provided to the original Tribunal was information provided for the purpose of the review and that pursuant to s 424A(3)(b) of the Act the Tribunal was not required to provide the appellant with this information. Her Honour also held that the Tribunal was not required to provide details of its appraisals of the appellant's credibility as such appraisals are not information for the purposes of s 424A(1) of the Act. 13 The learned Federal Magistrate was satisfied that the Tribunal raised all of the determinative issues, particularly the Tribunal's concerns regarding the plausibility of the appellant's claims, with the appellant during the hearing. Her Honour stated that there was no evidence before the Court that the Tribunal had failed to give the applicant an opportunity to give evidence, or that it had erred in the manner in which it had assessed the evidence given by the appellant at the first and second Tribunal hearings pursuant to s 425 of the Act. 14 Finally, the Federal Magistrate found that the generality of the appellant's claims regarding the fifth claimed ground did not establish any jurisdictional error in the Tribunal decision. Her Honour was satisfied that the Tribunal's view in relation to the inconsistencies of the appellant's evidence was open to it on the material before it. As no jurisdictional error was established, the application was dismissed.

[6]

Bias 18 Actual bias exists where the decision-maker has a pre-existing state of mind so as to render him or her unwilling or unable to undertake any proper evaluation of the relevant evidence: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. No inference of bias can be drawn from the mere adverse findings of the Tribunal's decision: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102. 19 Apprehended bias exists where a fair minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28. 20 The learned Federal Magistrate found that, in the absence of the transcript of the Tribunal hearing, it could not be inferred on the material before the Court that the Tribunal was biased. Her Honour found nothing in the Tribunal's reasons for decision to establish bias in the sense of predetermination or to establish any claim of apprehended bias from the perspective of a reasonably well-informed lay observer. 21 In its decision the Tribunal found the appellant was not a credible or truthful witness. This conclusion was based on inconsistencies and implausible elements in the appellant's evidence. The Tribunal therefore rejected the appellant's claims for protection. The findings of the Tribunal had a clear evidentiary basis. The findings of the Tribunal appear to have been open to the Tribunal on the evidence and material before it. The Tribunal appears to have given full consideration to all of the appellant's evidence and discussed with the appellant each of the matters that led to the decision. There is no basis for the suggestion that the Tribunal did not bring an open, independent mind to the decision, or that a fair minded lay observer, informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would perceive the Tribunal to be biased. The circumstances of the present case give no indication of actual or apprehended bias on the part of the Tribunal.

[10]

Ground 2 - s 424A 31 The appellant has not provided any particulars in support of this contention. 32 Section 424A(1) of the Act requires that the Tribunal provide the applicant with clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal's decision was based upon evidence given by the appellant in writing in his original application for a visa, a letter submitted to the Tribunal, the first and second Tribunal hearings, independent country information and the appellant's response to the s 424A letter. 33 Section 424A(3)(b) provides an exemption to the obligation under s 424A(1) where the information was given by an applicant for the purposes of the review, while s 424A(3)(ba) provides an exception where the information has been given by an applicant during the process that led to the decision that is under review other than information provided orally to the Department. Section 424A(3)(a) provides an exception where the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. 34 Further, the information that the Tribunal is required to provide to the appellant under s 424A(1) does not extend to the Tribunal's subjective thought process or appraisals of evidence before it, including disbelief of an applicant's evidence: SZBYR v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 81 ALJR 1190. The information does not extend to gaps, defects, or lack of detail or specificity in evidence or to the conclusions the Tribunal reaches in terms of the weight attributed to these factors: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471. 35 Despite this, the Tribunal sent the appellant an s 424A notice detailing its concerns with the inconsistencies in his evidence, to which the appellant responded. The appellant has not demonstrated any failure by the Tribunal to comply with its obligations under s 424A and therefore the ground is also not made out.

SZJVA v Minister for Immigration and Citizenship

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Judgment (17 paragraphs)

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