FEDERAL COURT OF AUSTRALIA

SZJWF v Minister for Immigration and Citizenship [2007] FCA 1325

Migration Act 1958 (Cth), s 476 

SZJWF and Anor v Minister for Immigration & Anor [2007] FMCA 854 upheld

SZJWF AND SZJWG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1024 OF 2007

GYLES J

13 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

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 a decision of Smith FM (SZJWF and Anor v Minister for Immigration & Anor [2007] FMCA 854) dismissing an application for relief under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal).  The notice of appeal sets out two grounds of appeal.  The first refers to a jurisdictional error in adopting a harsh approach to the consideration of well-founded fear.  The second raises questions of natural justice and procedural fairness in relation to interpretation at the hearing before the Tribunal.

2                     Each of those matters was essentially dealt with by the learned Federal Magistrate in his judgment.  So far as the first is concerned, the manner in which Smith FM dealt with the contention is in accordance with the proper approach to that question and no error in principle has been pointed to by the appellant.  Indeed, there have been no supplementary oral submissions directed to that point.  It appears to be linked to a suggestion of bias based upon a perception that the Tribunal was acting in accordance with some prior precedent without having regard to the particular case.  In my opinion, even if one went back to the Tribunal’s decision, there can be no sound basis for the view that the Tribunal failed to consider the matter at all as suggested.

3                     This is an argument which verges on an argument of bias and the difficulties of establishing a ground of bias are well-known when the claim is based only upon, effectively, the manner in which the Tribunal has dealt with the case.  As it happened, the learned Federal Magistrate considered the question of bias and referred to the relevant authorities and, in the absence of a transcript which exhibited bias, he was not prepared to find that there was any bias.  No error has been demonstrated in that finding. 

4                     As pointed out by Smith FM, the second ground must fail because there was no evidence produced which could justify such a finding.  That ground was not pressed in oral submissions today and, though I do not hold that against the unrepresented appellant, it seems to me there is no proper basis for doubting the approach of Smith FM in rejecting this ground.

5                     The other basis which was put forward in the argument addressed this morning was that there was no time to produce documents which, it is contended, would have assisted the appellant in producing evidence in support of his claims.  It needs to be borne in mind that the Tribunal did not, in the end, believe that the appellant was affected in the way he said he was by virtue of the action of Muslim fundamentalists against himself as a Hindu.  The Tribunal gave a notice which purported to be pursuant to s 424A calling for comments on certain issues raised at the time of the hearing.  The appellant submits that the time limit provided by that notice (14 days) was quite inadequate to produce such documents.  This basis for argument was not a ground of appeal but, even if it were, it could not have succeeded.

6                     As submitted by counsel for the Minister, the Tribunal is not bound to afford any particular time to an applicant to produce documents after the hearing.  It is up to the applicant for a visa to produce such information and documents as he or she is able to do to support the claim that is made.  It may well be that the obtaining of documents of this kind may take longer than the period allowed for further comments.  However, that overlooks the fact that the task of the appellant, difficult though it may be, is to produce the material to support his case in the first instance.

7                     It is also unclear what kind of documents might have been involved.  I am not at all sure, reading the Tribunal’s decision, that it doubted that there were incidents of communal violence between Muslims and the Hindus in Gujarat and Ahmedabad in particular.  The doubt that it expressed was whether or not this particular appellant was subject to that communal violence.  The Tribunal’s opinion was that he was not.  I am not at all clear that any document has been identified which would have addressed that difficulty.

8                     I have read the balance of the written submissions filed on behalf of the appellant which, as I explained to him, ranged beyond the matters which have been referred to in the grounds of appeal.  In my opinion, they do not raise any issue which indicates that the matter was not approached entirely appropriately by the learned Federal Magistrate in relation to all matters properly raised before him. 

9                     In this matter the appeal is dismissed and the appellant is to pay the costs of the respondent Minister.

Associate:

Dated:         28 August 2007