SZMNX v Minister for Immigration & Citizenship

Procedural fairness 30 Neither this nor the second ground was pleaded or argued in the Federal Magistrates Court. Leave is therefore required and leave will only be granted where "it is expedient in the interests of justice to do so": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]. In that case the Court observed (at [48]): The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 31 So the first question is whether leave should be granted. The anterior questions are: Does the point clearly have merit? Is there no real prejudice to the respondent in permitting it to be agitated? Has an adequate explanation for the failure to take the point been given? 32 The first ground was not particularised. No affidavit was filed in support. Nor were submissions filed. Thus, no explanation has been advanced for the failure to take the point below. The Minister does not submit he is prejudiced but argued that the point has no merit. Nothing the appellant said on the hearing demonstrates otherwise. THE APPELLANT: I have two points I would like to raise here. HER HONOUR: Yes. What are they? THE APPELLANT: The first is, I wonder if the law should be applied based on the actual facts on the fair basis. Because I don't have a lawyer, free of charge, available to me, so I don't know about this. … THE APPELLANT: Secondly, I just wonder if the RRT would typically rely on their internal information to judge that the documents I provided were false, does that mean that my case, even though I had provided genuine documents to them, but my case would still be unfairly judged, based on their own observation of the documents. … THE APPELLANT: What I was told at the RRT hearing was that DFAT told RRT that a lot of documents provided - produced from China were false. I've got RRT recording as evidence of this. … THE APPELLANT: If RRT only rely on the DFATs information that's the documents provided - the documents in China were false then - if the documents provided from China were false and also I'm not able to provide information in relation to other countries, does that mean that my - the unfair treatment of to my case would never ever be corrected? HER HONOUR: What is the unfair treatment you say you received? THE APPELLANT: I'm happy that I've adopted this girl for 18 years. During the process she has grown up healthily, however, I was really fearful and I feel I was wronged. Number 1 is that I was de-positioned from my post. Secondly, I was forced to have the sterilisation which caused a lot of fear in myself. 33 As the Federal Magistrate said, however, the Tribunal was entitled to assess the appellant's evidence against the information it gleaned from its own researches and to use it as a basis to reject his claims. In NAHI v Minister for Immigration and Citizenship [2004] FCAFC 10 at [11] the Full Court explained: By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that. 34 Section 422B(1) of the Act provides that Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. The applicant does not point to any breach of the provisions of Division 4. Neither is there any evidence of actual or apprehended bias on the part of the Tribunal or, for that matter, the Federal Magistrate. I address the question of bias in more detail in my consideration of ground 3. Accordingly, leave should not be given to raise the argument at this stage.

Wrong application of law 35 The same problems beset this ground. 36 At the hearing the appellant was given ample opportunity to expand upon the notice of appeal. Nothing he said, however, revealed any jurisdictional error. In fact, what he said merely reiterated his oral submission about the first ground. In summary, his case was that, because the Tribunal did not believe him it must have wrongly applied the law. It was obvious he said, that "there were some legal mistakes". That, of course, does not follow. He indicated he was shocked by the outcome. Although on one view this is difficult to believe because the Tribunal flagged its numerous concerns about its evidence with him, it is explicable in the light of the fact that he was accepted by the first tribunal as a witness of truth and, although the second tribunal found otherwise, it accepted that he had principal care of the child, in breach of China's one child policy and that he had been subjected to some adverse consequences as a result of this. 37 In any case, he was unable to point to any specific legal error, let alone one going to jurisdiction.

Unfair treatment of the case 38 Again, without particulars or written submissions it was difficult to understand what the appellant meant to convey by this ground. The Minister inferred that he was raising the same ground upon which he relied before the Federal Magistrate, which his Honour found was no more than a criticism of the Tribunal's reasoning as the Tribunal had in fact addressed all the appellant's claims.. At the hearing he made his position clear. THE APPELLANT: The point I'd like to raise is that if they feel that the documents provided from China were genuine, me, as a victim in China, I simply was not able to provide any other material coming from any other countries. HER HONOUR: I don't understand what you mean by that [SZMNX]. In particular I don't understand why you would think that documents provided from other countries would have any bearing on your case. THE APPELLANT: That's exactly what I mean. I mean, that in that case, even my case was wrongly treated, that my case would never have - would never ever have an opportunity to be rightly corrected. HER HONOUR: So you say essentially that because of the scepticism of the tribunal about the authenticity of apparently official documents from China, you were never going to get a fair hearing because the documents that you said were official were never going to be accepted as official? THE APPELLANT: Yes. 39 This in essence is a claim of bias in the form of prejudgment. Quite apart from the difficulty (to which I have already referred) the appellant has in raising it on appeal when it was not agitated before the Federal Magistrate, there is no basis for it. As the Full Court said in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 ("SZNPG") at [18]: It is a rare case in which a court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker's reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Afffairs (2002) 194 ALR 749 at [44]. The same is the case in relation to apprehended bias. Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker's expression of the decision maker's reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased. 40 There is nothing distinctive about this case. The country information entitled the Tribunal to be sceptical about the authenticity of the documents but it did not discount the documents merely on the basis of country information about the high incidence of document fraud. In the case of the purported extracts from the Fujian Province Population and Family Planning Regulation that the appellant produced, the Tribunal observed that they did not "correspond in any way" to the copies the Tribunal had of the Regulations in force at the time. Importantly, in the Regulations in the Tribunal's possession there was nothing to indicate that a fee of four times the average annual income was imposed annually until the child turned 18 or which authorised coercive measures if people did not undergo sterilisation. If the Tribunal was not satisfied that the extracts from the Regulation were genuine, it is little wonder it did not accept the authenticity of the other documents the appellant produced. These documents included notices said to concern him but not addressed to him and where there was nothing on the face of them to show that they related to him, but which he claimed were given to his neighbour, though intended for him. They also included notices that apparently related to him but which were not addressed to him and where he had no documents indicating that they had been sent to him. 41 Whether the Tribunal was right to reach this conclusion is another matter, but it was a conclusion it was authorised to reach on the material before it. 42 In the circumstances, the Tribunal was entitled not to accept "that the documents the applicant produced to the Department in purported corroboration of his claims outweigh the other problems it had with his credibility". Certainly, that decision does not disclose any actual or apprehended bias or other jurisdictional error. Cf. SZNPG at [19]-[26]. 43 The Tribunal had a statutory duty to put its concerns to him. Moreover, as the High Court observed in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 ("Ex parte H") at [30]; [2001] HCA 28: Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. 44 In Ex parte H the High Court sounded a note of caution requiring the Tribunal to be alert that "vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated". That could, as it did in Ex parte H, give rise to a reasonable apprehension that the Tribunal might have had a preconceived view from which it might not budge, despite what the appellant might say to it. However, the appellant did not point to anything in the conduct of this case that could give rise to such an apprehension.

Conclusion 45 For the above reasons the appeal should be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.