FEDERAL COURT OF AUSTRALIA

SZHVR v Minister for Immigration and Citizenship

[2008] FCA 776

Federal Court of Australia Act 1976 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Allesch v Maunz (2000) 203 CLR 172

Chey v Minister for Immigration and Citizenship [2007] FCA 871

Forge v Australian Securities and Investments Commission (2006) 228 CLR 75

Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572

Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FACFC 287

Rana v Australian Federal Police (2006) 44 AAR 151

Re JRL: Ex parte CJL (1986) 161 CLR 342

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZHVR v Minister for Immigration and Citizenship [2008] FMCA 198

SZHVS v Minister for Immigration and Citizenship [2008] FCA 220

SZHVR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 309 of 2008

GORDON J

27 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.

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 against an order of Federal Magistrate Barnes of 18 February 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 22 November 2005.  The Tribunal affirmed a decision of a delegate of the first respondent (“the first respondent”) to refuse the appellant a protection visa.

PROCEDURAL HISTORY

2                     The appellant is a citizen of the People’s Republic of China (“China”) who first entered Australia on 2 May 2005.  On 9 May 2005, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known).  The first respondent refused the application for a protection visa on 10 June 2005.  On 11 July 2005, the appellant applied to the Tribunal for a review of that decision.

3                     The appellant is married to another protection visa applicant, SZHVS.  Her separate application has been the subject of judicial review in this Court on a previous occasion:  see SZHVS v Minister for Immigration and Citizenship [2008] FCA 220.

4                     Before the Tribunal, the appellant claimed to fear persecution in China as he claimed to be a Falun Gong practitioner.  He claimed that he and his wife attended demonstrations in Beijing in 1999 and were detained for four days.  According to the appellant, they continued to practise in secret until 2004 when police investigated them on the suspicion that the appellant was an organiser of Falun Gong practitioners overseas.

THE TRIBUNAL DECISION

5                     The Tribunal invited the appellant to a hearing but he failed to appear.  The Tribunal proceeded to make a decision pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”).  It is now well established that “if an applicant, having been invited to appear, does not appear on the appointed day, the [T]ribunal may then proceed to a decision” (Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [60]) and the “inevitable consequence” of the non attendance in those circumstances, is rejection of the application (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FACFC 287 at [5]).

6                     The Tribunal concluded that, based on the insufficient detail provided by the appellant, it was not satisfied the appellant’s application invoked protection obligations in Australia.  The Tribunal was not satisfied on the evidence before it that the appellant was a sincere and genuine Falun Gong practitioner, had been imputed as such in the past, or held a well-founded fear of future persecution in China.

THE COURT BELOW

7                     Before the Federal Magistrate, the appellant filed both an initial and an amended application.  The initial application stated:

The Tribunal refused my application for a combined hearing with my wife ... NO5/51598, when we applied for a combined hearing in writing.  However, when my wife attended the hearing, my wife was pushed to bring me with her for her hearing, she was told that if she did not bring her husband, she would not have a hearing, and the Tribunal would send a summon [sic] for me to attend.  No one has experienced this before as I asked other people about it, and I did not know why the Tribunal refused the combined hearing and would send a summon [sic] for my attendance to my wife's hearing.  I was shocked and could not make the right judgment at that moment.  My application can not be processed normally[;]  I could not make a decision as what I should do because of being shocked.  I believe that the Tribunal made jurisdictional error when considering my application.

8                     The amended application raised four additional grounds:

(1)       The Tribunal had bias against my wife and me.  The Tribunal refused my application for a combined hearing with my wife... NO5/51598, but when my wife attended the hearing, the officer asked my wife to leave and pushed my wife to bring me with her for the hearing.  She was told that if she not bring her husband, she would not have a hearing, and the Tribunal would send a summon for me to attend.  I was shocked and worried about that.  Because of the worries, we dared not to attend the hearings and hoped that we could communicate with the officer in writing instead of face to face.  The Tribunal officer then had bias against us because we failed to attend the hearing.

(2)       The Tribunal failed to provide particulars of the information that was the reason, or part of the reason for affirming the decision, s 424A of the [Act].  The Tribunal therefore failed to carry out its statutory duty.

(3)       The Tribunal fell into jurisdictional errors when considering my application for a protection visa.  The Tribunal could not make a fair decision on my application because of their bias against us.  The Tribunal was wrong to force my wife to bring me to the hearing and saying that a summon would be sent, and no hearing otherwise.

(4)       The Tribunal did not observe [the Act] properly to making the decision.

                        (Transcribed from the Federal Magistrate’s judgment.)

9                     The Federal Magistrate considered the original application and the subsequent grounds, which both, in essence, took issue with whether or not there should have been a combined Tribunal hearing for the appellant and his wife.  Her Honour considered that a number of grounds for review might be raised by the circumstances before the Court but concluded that the concerns of the appellant were “not matters that establish[ed] a jurisdictional error on the part of the Tribunal in relation to the review of the [appellant’s] application for a protection visa” and dismissed the application with costs:  SZHVR v Minister for Immigration and Citizenship [2008] FMCA 198 at [45]. 

APPLICATION TO THIS COURT

10                  The appellant now seeks prerogative relief of the kind issued in the exercise of the Federal Court’s original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision).  This proceeding is an appeal from a decision of the Federal Magistrates Court under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”).  The appeal is in the nature of a rehearing and not an appeal in the strict sense:  Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.  The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error:  Allesch v Maunz (2000) 203 CLR 172 at [23].  Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the Federal Magistrates Court and make such judgment or order as, in all of the circumstances, is appropriate including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 

11                  The Notice of Appeal filed in this Court on 6 March 2008 is a reproduction of the application filed in the Federal Magistrates Court (see [7] above).  The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate. 

12                  For the reasons outlined below, I cannot identify an appellable error.  An appeal would have no prospects of success.

Claim for bias or apprehended bias

13                  The first possible ground for review considered by the Federal Magistrate was a claim for bias or apprehended bias.  In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-5 explained the test for apprehended bias in administrative proceedings in the following terms:

The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.  That formulation owes much to the fact that court proceedings are held in public.  There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the [T]ribunal, proceedings are held in private.

Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done.  To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account.  In the present case, a significant difference between curial proceedings and the proceedings of the [T]ribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.

See also Chey v Minister for Immigration and Citizenship [2007] FCA 871; Rana v Australian Federal Police (2006) 44 AAR 151 at [49]-[50]; Forge v Australian Securities and Investments Commission (2006) 228 CLR 75; Jia Legeng 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL (1986) 161 CLR 342.  

14                  It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”:  Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 at [100].

15                  In determining the claim of bias, the Federal Magistrate placed significant emphasis on the fact that there was no evidence of any request by the appellant for a combined hearing with his wife, or that he wanted the Tribunal to take evidence from his wife or bring her to the hearing.  Her Honour concluded that (SZHVR [2008] FMCA 198 at [34]-[35]):

The proceeding in this instance was a Tribunal review.  The matter in issue was the [appellant’s] separate application for a protection visa.  The conduct which is said to give rise to actual or apprehended bias arose from what occurred in the conduct of his wife’s separate application by a differently constituted Tribunal.  The [appellant] did not ask the Tribunal conducting his review for a combined hearing.

While I appreciate that the [appellant] may have been confused and concerned because of what occurred in relation to his wife’s separate review application and may have been amenable to a combined hearing as sought by his wife, such subjective concern is not such as to establish apprehended bias constituting jurisdictional error on the part of the Tribunal conducting the review in relation to his application.

16                  A request for a combined hearing by the appellant’s wife to a differently constituted Tribunal cannot be deemed to also be a request from the appellant in respect of his separate and independent application.  While one can sympathise with the confusion experienced by the appellant, the mere fact that a party becomes confused does not of itself expose any jurisdictional error.  The Federal Magistrate found that this aspect of the appellant’s claim did not give rise to an appellable error.  I agree. 

Procedural fairness or failure to comply with s 425

17                  The next possible basis for jurisdictional error identified by the Federal Magistrate was a lack of procedural fairness or a failure to comply with s 425 of the Act or otherwise.  

18                  Section 425 forms part of Div 4 of Pt 7 of that Act and is taken to be an exhaustive statement of the requirements of natural justice: s 422B.  This Division serves to “provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule”:  Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [66].  The same point was made in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [206]-[209] per Hayne J.

19                  As a result, the question to be decided is simply, was what was prescribed by the Act to be done actually done in this case? (See SAAP 228 CLR 294 at [208] per Hayne J.)  Section 425 required the Tribunal to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1).  Such an invitation was sent by the Tribunal and received by the appellant (see [5]).  As the Federal Magistrate correctly held (SZHVR [2008] FMCA 198 at [40]):

… in contrast to the position in relation to his wife, it cannot be said that the [appellant’s] invitation to a hearing was “illusory”.  There is no suggestion that it was indicated to him that he could not give evidence unless his wife attended his hearing (as was conceded by the first respondent in relation to the processing of the wife’s application).

20                  The Tribunal’s jurisdictional error in relation to the application of the appellant’s wife in no way taints the appellant’s own independent application.  The Federal Magistrate was correct to conclude that this part of the appellant’s claim did not give rise to jurisdictional error.

Breach of s 424A

21                  The final ground considered by the Federal Magistrate was that the Tribunal breached s 424A of the Act.  Her Honour concluded that because the Tribunal found that the appellant had failed to provide it with sufficient information to substantiate his claims, and based its findings on a lack of evidence, the obligations under s 424A were not enlivened.  There is no error in this finding of the Federal Magistrate. 

CONCLUSION

22                  I would dismiss the appeal and order the appellant to pay the first respondent’s costs of the appeal to be taxed in default of agreement.

Associate:

Dated:         27 May 2008