FEDERAL COURT OF AUSTRALIA

NAHZ v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCA 954

MIGRATION – appeal from Federal Magistrate – no meaningful submissions advanced on appeal – appeal dismissed.

NAHZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 818 OF 2003

CONTI J

10 SEPTEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         Appeal dismissed.

2.         Appellant to pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from the decision of Barnes FM given on 20 June 2003, whereby her Honour dismissed an application for review of the Refugee Review Tribunal (RRT) given on 19 December 2002, which had in turn affirmed the decision of the delegate of the Minister to refuse to grant the appellant a protection visa.

2                     The grounds of appeal are framed and signed by the appellant in person in a now familiar form used in appeals to this Court, which I reproduce below:

‘GROUNDS

2.         The Single judge of the Federal Magistrate Court In his Honors (sic) Judgment delivered on the 20^th June 2003 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3.         The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1). I will provide more grounds after receive the Judgment.

Recent High Court judgment: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003).

Recent Federal Court of Australia judgment: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003).’

3                     The orders sought are three in number as follows:

‘1.        To redirect the applicant’s claim to the RRT for further consideration and advice to the tribunal to make a further consideration of this matter.

2.         An order that no action is taken to remove the applicant from Australia while the decision is pending.

3.         An order for costs. And any further order that this Honorable (sic) court may deem appropriates (sic).’

4                     The applicant filed in Court on 3 September 2003 a so-called ‘Submission’, the main body whereof comprises four pages. Also attached was a bundle of non-paginated so-called ‘latest country information’, upon which no submission was actually articulated, and in relation to which the dates of publications, such as may be detected, at least for the most part precede the date of the hearing even before the RRT and the handing down of the RRT decision.

5                     When I invited the appellant to address the Court upon the merits of his appeal from the decision of Barnes FM, he was unable to reply. The appellant is a pleasant but shy person, and was somewhat overawed by the occasion. He was entirely lacking in the presumptuousness or arrogance of many appellants I have experienced, whose appeals have been as misconceived as the present.

6                     It is appropriate for me to place on record below the major segments of the written submissions of counsel for the Minister, which as I have implied, were not adverted to, much less addressed, by the appellant; I have done so to record my acceptance of the basis and content thereof for the record:

‘9.        As is clear from her Honour’s reasons for judgment (paragraphs 9, 10, 11) the written submissions filed by the Appellant made different claims to those which were contained in the application. Those submissions alleged that the Tribunal had denied the Appellant procedural fairness.

10.       As stated by her Honour (paragraph 24), the only material before the Court in respect of the procedure adopted by the Tribunal was the published reasons and the “normal documentation of the letters and correspondence preceding the hearing”, in other words, the Court Book prepared by the Respondent’s solicitors. Her Honour found that there was no denial of procedural fairness on any of the bases put forward by the Appellant. Her Honour then dealt with the grounds of bias and lack of good faith, in each case rejecting the submission of the Appellant, and concluded that no error had been established and there was no alternative but to dismiss the application.

11.       The factual bases for the Appellant’s claims regarding procedural fairness were not established before the Federal Magistrate. Accordingly, the Appellant was unable to reply on the decision in Muin v Refugee Review Tribunal’ Lie v Refugee Review Tribunal (2002) 76 ALJR 966: see NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 293. Further the Appellant was unable to show that any procedure adopted by the Tribunal denied the Appellant the opportunity of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 and Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699.

12.       The absence of any evidence apart from the bundle of relevant documents prepared by the Respondent also made it difficult for the Appellant to establish actual bias or want of good faith. In this respect, the Federal Magistrate considered also the possibility of an apprehension of bias and rejected it, taking the approach required by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 and Re Refugee Review Tribunal Ex parte H 92001) 75 ALJR 982 regarding the account to be taken of the different nature of Tribunal proceedings compared to Court proceedings and the Tribunal’s inquisitorial role.

13.       The submissions filed by the Appellant do not address the decision of her Honour Barnes FM apart from saying that the Appellant does not agree with it (paragraph 8). Despite this, it is clear that the absence of evidence to support the claim of denial of procedural fairness and lack of any indication of pre-judgment amounting to bias reveal that her Honour was correct to dismiss the application.’

7                     Having earlier studied the reasons for judgment of her Honour below, it is unnecessary for me to add anything to those submissions, which I found to be correct.

8                     The appeal is dismissed with costs.

Associate:

Dated:              10 September 2003