FEDERAL COURT OF AUSTRALIA

SZDML v Minister for Immigration & Citizenship [2008] FCA 1673

SZMDL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1205 of 2008

EDMONDS J

12 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     The appellant appeals from the judgment and orders of Driver FM made on 11 July 2008, SZMDL v Minister for Immigration & Anor [2008] FMCA 964, dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) signed on 11 March 2008 and handed down on 20 March 2008.  The Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) on 15 May 2007 to refuse to grant the appellant a Protection (Class XA) visa.

Factual Background

2                     The appellant is a male citizen of China who claimed to fear persecution because of his Christian religion.  In particular, he claimed to be a member of an underground Christian Church and to have been involved in spreading religious propaganda over the Internet.  The appellant further claimed to fear persecution because of his political opinion, and to have published articles concerning political matters.

3                     The Tribunal found that the appellant was not a witness of truth.  It rejected his claims to be a committed Christian who posted articles on the Internet and was detained and harmed for these actions.  The Tribunal gave the following reasons for so finding:

(1)               The applicant’s oral evidence was inconsistent with his Protection Visa Application (PVA) concerning whether the applicant had been baptised.

(2)               The applicant gave oral evidence that he took no positive act to become Christian and just attended Christian gatherings because his friends took him there.

(3)               The applicant’s claims about posting articles on the Internet were implausible.  The applicant was unable to satisfactorily describe the content of the articles.  The one article he did describe was an anti-government article regarding a motor vehicle accident, whereas in his PVA the applicant clamed to have posted religious articles.

(4)               The applicant’s profile in his PVA was inconsistent with his profile in his visitor visa application (particularly regarding where the applicant was living and working).  The Tribunal did not accept that the applicant lived in Fujian or worked in a computer shop there.

4                     The appellant sought judicial review of the Tribunal’s decision by application filed in the Federal Magistrates Court on 15 April 2008.  The grounds of that application alleged that the Tribunal made procedural and jurisdictional errors.  The particulars provided alleged that the Tribunal failed to act according to substantial justice and the merits of the case, and breached s 424A of the Migration Act 1958 (Cth) (‘the Act’).

5                     The Court convened a hearing of the application on 11 July 2008.  On that date, Federal Magistrate Driver delivered ex tempore reasons for judgment in which he ordered, inter alia, that the application be dismissed.

The Decision Below

6                     In his reasons for judgment, his Honour set out the history of the appellant’s visa application, including a summary of the appellant’s claims that accurately reflected the matters raised by him in his protection visa application.  His Honour also summarised the Tribunal’s findings and reasons.

7                     In rejecting the appellant’s grounds of review his Honour found as follows:

(1)               In so far as the appellant sought to draw support from s 420(2)(b) of the Act, this application was misconceived.  As the High Court found in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 628, s 420 is facultative and not restrictive.  To the extent that the provision provided any positive direction to the Tribunal, it was exhortative, not mandatory.  His Honour was not satisfied that there was any breach of s 420 and not satisfied that, if there was any such breach, it was a jurisdictional error (at [6]).

(2)               In relation to the alleged breach of s 424A, his Honour observed that three letters pursuant to that section had been sent.  He discussed the terms of those letters and the appellant’s responses from [8] – [12] concluding that the Tribunal had exceeded its statutory obligations by writing to the appellant in the terms that it did (see the High Court in SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at [17] and [18]).  To the extent s 424A was engaged, his Honour held that the Tribunal met its obligations to clearly identify the relevant information, to explain the significance of that information for the review and to invite comment on it.

The Notice of Appeal

8                     The notice of appeal, filed on 1 August 2008, alleges that the Federal Magistrate erred in law and was wrong in finding that the Tribunal acted properly in its findings.  The particulars in support of these grounds allege failure by the Tribunal to act according to substantial justice and the merits of the case, and a breach of s 424A of the Act.

The Appellant’s Submissions

9                     On the hearing of the appeal, the appellant made oral submissions which did no more to advance his case than what can be gained from the grounds contained in his notice of appeal: unfairness based on allegations of bias, actual and apprehended, and breach of s 424A of the Act.

The Minister’s Submissions

10                  The Minister submitted that the matters raised by the appellant in the particulars of his two grounds of appeal are essentially a repetition of his arguments to the learned Federal Magistrate.  The appellant has identified no error in the Federal Magistrate’s rejection of these arguments and his Honour was correct in his findings for the reasons given and the appeal should be dismissed.

Analysis

Failure to Act According to Substantial Justice and the Merits of the Case

11                  Section 420 of the Act provides:

(1)        The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)        The Tribunal, in reviewing a decision:

(a)        is not bound by technicalities, legal forms or rules of evidence; and

(b)        must act according to substantial justice and the merits of the case.

12                  The Minister submitted that in carrying out its review function, the Tribunal did not fall short of this objective.  I agree.  In any event, s 420 does not delimit the boundaries of jurisdiction. In Eshetu 197 CLR at [49], Gleeson CJ and McHugh J said of s 420 and similar provisions:

They are intended to be facultative, not restrictive.  Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.

13                  Hely J applied this reasoning in SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568 at [15], where his Honour said that compliance with s 420 was ‘not a precondition to lawful decision-making’.  His Honour below was correct in his findings to this effect at [6] of his reasons for judgment.

14                  In so far as this ground alleges bias or apprehended bias on the part of the Tribunal (in seeking to detect faults in the appellant’s evidence for the purpose of refusing his application), the Minister submitted that there is simply no evidence before the Court capable of sustaining such a serious allegation.  Again, I agree.  It is well established that bias, an aspect of bad faith, is a serious allegation involving personal fault on the part of the decision-maker.  It must be clearly proved by evidence.  It is rare for a court to find that an administrative decision-maker acted in bad faith, especially where the only thing said to be in support of this is the decision record: see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43] – [48]; and VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102.

15                  It appears from [7] of the reasons of the learned Federal Magistrate that the appellant raised a complaint of bias in his oral submissions to the court below.  That complaint was rightly rejected on the basis that it was not supported by any evidence.

Breach of Section 424A

16                  The information said by the appellant to have been used in breach of s 424A is the fact that the applicant provided no documents to the Tribunal in support of his claim to have resided in Fujian.  The Minister submitted that the Tribunal’s observation as to the absence of evidence in support of a claim is a thought process and not information for the purposes of s 424A.  I agree.  In SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed:

Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476-477] that the word ‘information’

does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.   (Emphasis added)

Conclusion

17                  No error by the Federal Magistrate has been shown, and no jurisdictional error by the Tribunal has been demonstrated.  The appeal should be dismissed with costs.

Associate:

Dated:         12 November 2008