FEDERAL COURT OF AUSTRALIA

SZOBU v Minister for Immigration and Citizenship [2010] FCA 568

Citation:	SZOBU v Minister for Immigration and Citizenship [2010] FCA 568

Appeal from:	SZOBU v Minister for Immigration and Citizenship [2010] FMCA 206

Parties:	SZOBU AND ANOR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

File number:	NSD 340 of 2010

Judge:	FLICK J

Date of judgment:	7 June 2010

Catchwords:	PRACTICE AND PROCEDURE – submissions by video link – dismissal of proceeding – interlocutory decision – need for leave – Grounds of Appeal not properly drafted MIGRATION – no appellable error – no application to set aside interlocutory decision of Federal Magistrate – leave refused – no prospects of success – Notice of Appeal incompetent

Legislation:	Federal Court of Australia Act 1976 (Cth) ss 24(1A), 27, 37M(1)(b), 47A, 47B Migration Act 1958 (Cth) Federal Court Rules, O 52 r 13(2) Federal Magistrates Court Rules 2001, r.13.03C(1)(c), r.16.05

Cases cited:	CSR Limited, in the matter of CSR Limited [2010] FCAFC 34, cited Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited [2006] FCA 1455, referred to George v Fletcher [2008] FCA 1848, cited Harrington v Rich [2008] FCAFC 61, 166 FCR 440, cited Jarrett v Seymour (1993) 46 FCR 557, cited Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165, 42 ACSR 128, followed Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, 205 CLR 507, followed Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 83 ALJR 1123, followed Minogue v Williams [2000] FCA 125, 60 ALD 366, cited MZXAU v Minister for Immigration and Multicultural Affairs [2006] FCA 1558, referred to MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172, discussed NAOU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 406, followed NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243, cited Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34, 179 ALR 513, cited Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995, cited SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 165, cited SZAEW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 115, cited SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76, cited SZBUF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 732, cited SZCXR v Minister for Immigration and Citizenship [2007] FCA 443, referred to SZMJM v Minister for Immigration and Citizenship [2010] FCA 309, cited SZMKR v Minister for Immigration and Citizenship [2010] FCA 340, cited SZNPI v Minister for Immigration and Citizenship [2010] FCA 106, cited SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436, cited SZNYI v Minister for Immigration and Citizenship [2010] FCA 221, cited SZOBU v Minister for Immigration and Citizenship [2010] FMCA 206, affirmed

Date of hearing:	27 May 2010

Place:	Sydney

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	54

The Appellants:	The First Appellant appeared by video link


Counsel for the First Respondent:	Mr H Bevan

Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 340 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOBU

First Appellant

SZOBV

Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	7 JUNE 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Appeal as filed on 1 April 2010 is dismissed.

2. The Appellants are to pay the costs of the First Respondent, either as agreed or as taxed.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 340 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOBU

First Appellant

SZOBV

Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	FLICK J
DATE:	7 JUNE 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Appellants are husband and wife.

2 They are citizens of India who arrived in Australia on 8 April 2009. They applied to the Department of Immigration and Citizenship for Protection (Class XA) visas on 14 May 2009. A delegate refused those applications on 3 August 2009 and on 28 August 2009 they applied to the Refugee Review Tribunal for review.

3 The Tribunal affirmed the decisions of the delegate on 26 November 2009.

4 On 22 December 2009, an Applicationwas filed in the Federal Magistrates Court of Australia. On 12 February 2010 a Federal Magistrate granted the then Applicants leave to file an Amended Application and any evidence upon which they intended to rely. The matter was set down for hearing on 17 March 2010. On that occasion the then Applicants failed to appear. On 10 March 2010 a facsimile had been received by the Federal Magistrate seeking an order that the hearing be transferred to Western Australia where the husband had apparently secured work as a fruit picker. The making of any such order, or an order for the adjournment of the proceeding, was opposed by the First Respondent. A medical certificate further provided that the Applicant was “fit/unfit for work as from 5 days for 13/3/2010 days until 18/3/2010”.

5 The Federal Magistrate proceeded to hear the matter on 17 March 2010 and, in an ex tempore judgment, dismissed the proceeding “pursuant to r.13.03(c)(1) of the Federal Magistrates Court Rules 2001 (Cth)”. The Federal Magistrate concluded that the Court could not be satisfied that the Applicant husband was unfit to attend the hearing and also that the Applicationlacked prospects of success.

6 A Notice of Appeal was filed in the New South Wales District Registry of this Court on 1 April 2010. A Notice of Objection to Competency was filed on 30 April 2010.

7 It is considered that:

· there is no right of appeal from the decision of the Federal Magistrate; and

· that leave to appeal is required.

Although no application has expressly been made to seek leave, it is further considered that leave to appeal (even if sought) would have been refused because:

· there is no manifest error in the exercise of the discretion as exercised by the learned Federal Magistrate;

· the appropriate course which should have been pursued by the now Appellants was to approach the Federal Magistrates Court to have the orders made on 17 March 2010 set aside rather than to seek to appeal;

· the Notice of Appeal discloses no proper “Grounds of Appeal”; and

· the arguments sought to be advanced both before the Federal Magistrate and this Court lack any sufficient merit.

Submissions by Video Link

8 The First Appellant appeared before this Court on 27 May 2010 unrepresented but with the assistance of an interpreter.

9 But, and as with the proceeding before the Federal Magistrate, even this hearing did not proceed smoothly.

10 In the week prior to the hearing, nearly one month after the Appellants had been notified that their case had been set down for hearing in Sydney, a request was received by the NSW District Registry from the Appellants seeking permission to appear by video link from Brisbane. The Appellants had apparently again moved residence.

11 Sections 47A and 47B of the Federal Court of Australia Act 1976 (Cth) permit a course to be pursued whereby testimony and submissions may be given by means of a video link. Section 47A relates to the giving of testimony and s 47B relates to appearances or the making of submissions. Section 47B provides as follows:

Appearances or submissions by video link, audio link or other appropriate means

(1) The Court or a Judge may, for the purposes of any proceeding, direct or allow a person:

(a) to appear before the Court or the Judge; or

(b) to make a submission to the Court or the Judge;

by way of video link, audio link or other appropriate means.

(2) The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a) on the application of a party to the proceedings; or

(b) on the Court’s or Judge’s own initiative.

(3) This section applies whether the person appearing or making the submission is in or outside Australia, but does not apply if the person appearing or making the submission is in New Zealand.

Such a course has been permitted in Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited [2006] FCA 1455 and in SZCXR v Minister for Immigration and Citizenship [2007] FCA 443.

12 Section 47C imposes constraints upon the exercise of the powers conferred by ss 47A and 47B, including the need to be satisfied that the “courtroom or other place” from where the party is appearing has adequate facilities to ensure that the video link is satisfactory. In the present proceeding, these constraints presented no difficulty as arrangements were made for the Appellants to attend the Federal Court courtrooms in Brisbane.

13 Reservation may be expressed as to the appropriateness of too readily invoking s 47B and permitting unrepresented appellants in migration matters to make submissions by means of a video link. All too frequently, considerable difficulty is encountered in such cases in attempting to fully understand the claims sought to be advanced. These difficulties have the potential to be compounded where an unrepresented appellant does not appear in person. If an unrepresented appellant does not have with him a copy of the Appeal Book for the proceeding or is encountering difficulty finding a particular passage within the Appeal Book, such difficulties can be readily addressed if he is physically present in Court. But they are not so easily resolved if he is located elsewhere.

14 Whatever difficulties may present themselves in other cases may be left for others to resolve. In the present proceeding, it was the First Appellant who sought to appear by way of a video link and the Respondent Minister did not oppose that request. The application was thus acceded to. The Appellant husband is an educated man, having apparently completed a Bachelor of Commerce degree in Gujarat in India. Whatever difficulties may be experienced with less capable applicants, such difficulties were not expected in the present proceeding. The quickest, most inexpensive and most efficient means of resolving the appeal was to allowsubmissions to be by way of video link: Federal Court of Australia Act 1976 (Cth), s 37M(1)(b).

15 Submissions were thus advanced by the First Appellant by means of a video link. The First Appellant appeared on his own behalf and on behalf of his wife, the Second Appellant.

Rules 13.03C(1) & 16.05

16 The reference by the Federal Magistrate to r.13.03(c)(1) of the Federal Magistrates Court Rules 2001 was presumably a reference to Rule 13.03C(1)(c). Rule 13.03C provides as follows:

Default of appearance of a party

(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

(a) adjourn the hearing to a specific date or generally;

(b) order that there is not to be any hearing, unless:

(i) the proceeding is again set down for hearing; or

(ii) any other steps that the Court directs are taken;

(d) if the absent party is a party who has made an interlocutory application or a cross‑claim — dismiss the interlocutory application or cross‑claim;

(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.

(2) If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.

17 Rule 16.05 of those Rules should also be noted. That rule provides as follows:

Setting aside

(1) The Court may vary or set aside its judgment or order before it has been entered.

(2) The Court may vary or set aside its judgment or order after it has been entered if:

(a) the order is made in the absence of a party; or

(b) the order is obtained by fraud; or

(d) the order is an injunction or for the appointment of a receiver; or

(e) the order does not reflect the intention of the Court; or

(f) the party in whose favour the order is made consents.

(3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.

An Appeal or an Order Setting Aside?

18 A refusal of an adjournment is an interlocutory decision (Marketing Advisory Services v Football Tasmania Ltd [2002] FCAFC 165 at [27], 42 ACSR 128 per Sackville, Kenny and Allsop JJ) as is a decision dismissing a proceeding as not disclosing a reasonable cause of action (Minogue v Williams [2000] FCA 125 at [18], 60 ALD 366 at 371 per Ryan, Merkel and Goldberg JJ) or dismissing a proceeding for want of attendance (NAOU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 406 at [4] per Spender, Ryan and Whitlam JJ; SZAEW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 115 at [8] per Lindgren J).

19 The decision of the Federal Magistrate in the present proceeding, it is considered, is an interlocutory decision. Accordingly, there is no right of appeal – leave to appeal must first be granted: Federal Court of Australia Act 1976 (Cth), s 24(1A).

20 Considerations relevant to the exercise of discretion to grant or refuse leave are well settled. In the context of considering whether leave to appeal should be granted from a decision of a single Judge of this Court, it has been long-recognised that consideration should be given to:

· “whether in all the circumstances the judgment of the primary judge is attended bysufficient doubt to warrant it being reconsidered”; and

· “whether substantial injustice would result if leave were refused supposing the decision would be wrong”.

See: Jarrett v Seymour (1993) 46 FCR 557 at 559 per Lockhart and Beaumont JJ; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399; Harrington v Rich [2008] FCAFC 61 at [25], 166 FCR 440 at 446 per Sackville, Emmett and Jacobson JJ. Most recently, in CSR Limited, in the matter of CSR Limited [2010] FCAFC 34 at [5], Keane CJ and Jacobson Jobserved that “[g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice”.The same approach has been applied in the present proceeding when considering whether leave should be granted to appeal from the decision of the Federal Magistrate. See SZBUF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 732 at [3] per Conti J; George v Fletcher [2008] FCA 1848 at [14] per Collier J.

21 When making the order dismissing the proceeding, the learned Federal Magistrate was conscious of the request for an adjournment. The Federal Magistrate addressed that request and also the merits of the Applicationin her reasons for judgment. In doing so, there is no error in the exercise of the discretion. Leave to appeal should be refused on that basis alone. An application for leave to appeal is not a licence for an applicant to seek to have the discretion exercised afresh. It matters not whether a different Federal Magistrate – or indeed a Judge of this Court on appeal – would have reached the same conclusion. In the absence of error in the manner in which the discretion is exercised, no leave to appeal should normally be granted.

22 When exercising the discretion to grant or refuse leave to appeal from the interlocutory decision in the present proceeding, a further matter relevant to the exercise of that discretion is the right conferred by Rule 16.05 of the Federal Magistrates Court Rules 2001. When considering an application for leave to appeal in circumstances where a proceeding had likewise been struck out for want of attendance, Young J in MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 said:

[9] The appropriate course for the applicant to adopt would have been to apply to have the decision of O’Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court. It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (“MZWIK”) and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505.

The applicant in that case had also failed to appear before the Federal Court. Rather than dismissing the proceeding before the Federal Court pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), Young J went on to consider whether there was sufficient merit to warrant the grant of leave. Leave was refused. This was the course also followed by Ryan J in MZXAU v Minister for Immigration and Multicultural Affairs [2006] FCA 1558.

23 It is the course also pursued in the present proceeding.

24 Any reservation as to whether the more appropriate course would have been for the Appellants to have approached the Federal Magistrates Court for an order setting aside the decision made on 17 March 2010 is partially dispelled when attention is drawn to one of the orders made by the Federal Magistrate on that date. That order directed the Minister to notify the now Appellants of the orders made “and to provide them with a copy of [the] Orders together with a copy of Rule 16.05 of the Federal Magistrates Court Rules 2001 forthwith”. Steps were obviously put in place to inform the Appellants of (at least) one course open to them.

25 Although the First Appellant accepted that he had received a copy of the reasons for decision of the Federal Magistrate and a copy of r.16.05, he apparently did not understand that he could again approach the Federal Magistrates Court to have the decision set aside. Given that the copy of r.16.05 was written (not surprisingly) in English, and given his inability to read English, the utility of sending the First Appellant a copy of the rule without more may have been largely negated.

26 Perhaps consideration needs to be given to better ensuring that unrepresented parties who are not conversant in English are better informed of the rights available to them. But such matters may presently be left to one side. The fact that the Appellants could have approached the Federal Magistrates Court to have the decision set aside, and the fact that the Federal Magistrate ensured that a copy of the rule was forwarded to them, remain a basis upon which an exercise of the discretion to refuse leave to appeal may be partially based.

The Grounds of Appeal

27 The Grounds of Appeal set forth in the Notice of Appeal as filed in this Court on 1 April 2010 provide as follows (without alteration):

1. The honourable FM erred in finding that the appellants had identified viable arguable grounds of appeal and the jurisdictional error of the Tribunal

2. The honourable F.M erred in accepting that the Tribunal view the applicants will not face persecution if they return to India.

28 Even if any difficulty confronting the Appellants arising from their need to obtain leave to appeal is left to one side, and the Notice of Appeal is regarded as an application for leave to appeal and a statement of the Grounds of Appeal to be relied upon in the event that leave were granted, a further difficulty confronts the Appellants. Order 52 r 13(2) of the Federal Court Rules provides as follows:

The notice of appeal shall state:

(a) whether the whole or part only, and what part, of the judgment is appealed from;

(b) briefly, but specifically, the grounds relied upon in support of the appeal; and

The Notice of Appeal would then contain the Grounds to be relied upon – assuming leave were granted.

29 Reference in previous decisions has been made to the difficulties confronting this Court in cases involving unrepresented litigants, especially in migration cases. Grounds of appeal are frequently expressed in terms which do not comply with the Rules and which do not properly or adequately explain the basis upon which an appeal is to be advanced: SZNPI v Minister for Immigration and Citizenship [2010] FCA 106. Grounds of appeal which simply, for example, recount unhelpfully that there has been “jurisdictional error” (SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436 at [25]), or which simply say that “the learned primary judge erred in fact and law” (SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 165 at [10]), or which state that the “Honorable Judge failed to follow necessary laws applicable to me” (NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3]), do not comply with O 52 r 13(2).

30 Inevitably a balance has to be struck in each individual case between a number of potentially conflicting considerations, including the need:

· to treat appellants in migration cases in much the same manner as appellants in other cases and requiring compliance with the Rules of this Court;

· to recognise the peculiar difficulties confronting unrepresented litigants and (in particular) applicants for refugee status; and

· to ensure that an unrepresented appellant is not so advantaged that the represented respondent Minister is treated unfairly.

Above all, there remains a need to consider:

· the interests in the proper administration of justice, being interests which may extend beyond the immediate interests represented by the parties.

Needless to say, striking the right balance in any given case is not a simple exercise and it may well be expected that the manner in which the balance is struck in any given case may not be readily reconcilable with other cases.

31 In appeals of the present kind, the manner in which grounds of appealare frequently drafted may support a conclusion that they are drafted by others who have no real expertise and who may well have no knowledge of even the facts and circumstances of any individual case. Grounds of appeal frequently come before this Court in separate appeals which are in identical terms, or substantially identical terms, to those relied upon in other cases which have little similarity one with the other. The very real potential for those seeking refugee status to be exploited by persons who proffer so-called “advice” as to the manner in which grounds of appeal should be expressed cannot be ignored. In more recent times, it has become common for persons who proffer advice to express grounds of appeal in terms simply of “jurisdictional error”. But that is a term which those providing the “advice” probably do not understand and those who subsequently appear unrepresented before this Court are even less able to explain.

32 The present proceeding is no exception. Again, the Appellant who did appear before the Court explained that the grounds of the Application before the Federal Magistrate and the Grounds of Appeal before this Court were drafted by a “friend”. But, and as explained during the oral submissions of the First Appellant, there was reason to doubt whether the “friend” in the present proceeding had either read the reasons for decision of the Tribunal or even those of the Federal Magistrate.

33 The difficulties confronting the First Appellant are nothing new. In Re Refugee Review Tribunal; Ex Parte HB [2001] HCA 34, 179 ALR 513, Kirby J observed in respect to the facts of the case then before him:

[13] The applicant does not have counsel or a solicitor or any other advocate or representative. He has for a long time been detained in immigration detention. He is unable to earn funds to pay for a lawyer of his choice. He does not speak the English language. He claims to be a refugee. In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument. The judicial power of the Commonwealth does not oblige those who exercise it to engage in a charade of justice. On the other hand, there are limits to what judges can do. I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an indigent unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced.

His Honour went on to observe:

[24] … The subtleties of “jurisdictional error” have sometimes escaped experienced judges. It is, therefore, not wholly surprising that the distinction might not have been fully understood by the applicant.

See also: Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 at [6] per Mansfield J.

34 Whatever may be the explanation for the manner in which the Notice of Appeal was drafted, it fails to identify grounds which comply with O 52 r 13(2) of the Federal Court Rules. The first Ground of Appeal as drafted (for example) does not identify the “jurisdictional error” in any meaningful way and the second Ground of Appeal does nothing other than take issue with the factual conclusion as made by the Tribunal. No further clarification of these Grounds was provided during the course of the First Appellant’s oral submissions.

Prospects of Success?

35 Also relevant to the exercise of the discretion to grant or refuse leave to appeal is an assessment of the prospects of success on appeal shouldleave be granted.

36 The Appellants’ claims for refugee status seem to have their origins in a claim that the husband uncovered a fraud said to have been committed by a customer of his employer. Claims were thereafter made that the person accused of the fraud proceeded to make threats against the First Appellant.

37 These claims were rejected by the Tribunal. The Tribunal made adverse findings of credit against him.

38 In doing so, the Tribunal made findings of fact and expressed conclusions, including the following:

[63.] The Tribunal, having dismissed the applicant’s claims to have been subject to threats and physical attacks, finds that he did not seek police assistance from any such harm. It therefore does not accept that the police refused, expressly or implicitly, to accept or act on such complaints. The applicant belongs to the sizeable Hindu community, supports the mainstream BJP, and had a successful professional career. The Tribunal finds nothing to suggest a real chance of the applicant requiring State protection from any Convention-related harm in the future, or to indicate that the authorities may fail to provide protection if the need were to arise.

[64.] In sum, the Tribunal finds the applicant’s claims to lack credibility. It does not accept that he suffered any Convention-related persecution or lesser harm in India, but finds instead that he came to Australia, together with the applicant wife, for unrelated reasons. It finds there is no real chance of him facing persecution, as a Hindu, a BJP supporter or any other Convention-related reason. The Tribunal is therefore not satisfied that he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to India.

39 Even if content is sought to be given to the Grounds of Appeal before this Court as set forth in the Notice of Appeal by reference to the “Grounds of Application” which were before the Federal Magistrate, the present proceeding has no greater prospects of success. With the deletion of the repetition of s 424A of the Migration Act 1958 (Cth), those “Grounds of Application” wereas follows (without alteration):

1. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:

…

It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the credibility problems in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.

2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

3 The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicants circumstances and the consequence of the claim.

4. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

5. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 27 November 2009 was effected by actual bias constituting judicial error.

40 Concurrence is expressed with the reasons of the Federal Magistrate for concluding that “none of the … grounds have any, or any reasonable, prospects of success”: [2010] FMCA 206 at [34].

41 In rejecting Ground 1, the Federal Magistrate concluded that matters had been put to the husband during the course of the Tribunal hearing and that no “undertaking” had been extended to allow further time in which to make submissions after the hearing. Further time had, in any event, been given. The Appellants had sought from the Tribunal an opportunity to provide “further material” within a month. That request was denied but “the Tribunal agreed to receive any further submissions within 2 weeks”. It was this request and the response of the Tribunal which was understood by the Federal Magistrate to constitute the asserted “undertaking”.

42 During the course of his oral submissions in this Court, the First Appellant identified the only “further material” that he wished to place before the Tribunal as a letter dated 10 August 2008. Given that the First Appellant was in Brisbane and the Court was sitting in Sydney, it was not physically possible to have the letter tendered and made available to either the Court or those appearing for the Respondent Minister. But the letter was read by the interpreter. It stated that the First Appellant had undergone dental treatment. The relevance of that treatment to the Appellants’ case was that it had earlier been claimed that those who had attacked the First Appellant had “broken down [his] two teeth”. That was the claim made in a letter dated 9 November 2009, being a letter sent to the Tribunal by the First Appellant andtaken into account by the Tribunal and the Federal Magistrate.

43 Notwithstanding the date of the 10 August 2008 letter, being a date prior to the Tribunal hearing, the First Appellant explained that he only received a copy of it when it was faxed on 8 February 2010. That was a date after the Tribunal hearing but before the decision of the Federal Magistrate.

44 But the 2008 letter, it is respectfully considered, takes the matter no further – even if it were admitted on appeal: Federal Court of Australia Act 1976 (Cth), s 27.

45 Although no real opportunity was extended to Counsel for the Respondent Minister to object to reference being made to the letter or to its contents being read to the Court during the First Appellant’s oral submissions, Counsel quite properly took the course of addressing the fact of the letter and its contents on its merits. On its merits, Counsel submitted that the Tribunal’s reasons record that it was prepared to accept the Appellant’s claims as to dental work being undertaken but further submitted that any such claims were not material to the conclusion ultimately reached by the Tribunal. That submission is accepted.

46 Grounds 2, 3 and 4 of the Grounds of Application were rightly rejected by the Federal Magistrate on the basis that they “make bare assertions that do not disclose any error capable of review…”.

47 Ground 5 was rejected by reason of there being an absence of any foundation for an allegation of bias. An allegation of bias or prejudice, it is well-established, must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], 205 CLR 507 at 531. An unwillingness on the part of the Tribunal to believe the claims made, without more, does not establish bias or any lack of good faith: SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 at [9] per Wilcox J.

48 The argument as sought to be advanced before the Federal Magistrate was, apparently, an argument that “actual bias” had been made out by reason of the failure on the part of the Tribunal “to investigate applicants claim, specially the grounds of persecution, in India”. There is certainly no basis upon which a claim to “actual bias” may be made. Nor is there any basis upon which a claim founded upon a reasonable apprehension of bias could be sustained. There is no general duty imposed upon the Tribunal “to investigate”: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 83 ALJR 1123. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ there observed:

[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. [footnotes omitted]

See also: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [7] and [30] to [32] per Bennett J; SZNYI v Minister for Immigration and Citizenship [2010] FCA 221 at [37] to [40] per Yates J. There has been no identification in the present proceeding of any particular inquiry that could have been undertaken, but was not undertaken – whether that inquiry be “obvious” or not; nor has there been any identification of what may have been found had an investigation been undertaken – whether the result of the inquiry be about “a critical fact” or not. Ground 5 was a ground without substance. See also: SZMKR v Minister for Immigration and Citizenship [2010] FCA 340 at [42] per Gray J.

49 In summarising the approach taken by the Tribunal, the Federal Magistrate observed that the Tribunal’s findings were findings open to it on the evidence and that its findings on matters of credit were findings for the Tribunal alone: [2010] FMCA 206 at [32].

50 The Grounds of Application as advanced before the Federal Magistrate and the decision of both that Court and the Tribunal have been independently reviewed with a view to determining whether any reviewable error may be elsewhere discerned. No such error is apparent.

Conclusions

51 The Notice of Appeal is to be dismissed as incompetent. The decision made by the Federal Magistrate is an interlocutory decision which requires leave to appeal. No leave was expressly sought. Nor, even if leave were sought, would it have been granted. Neither the Grounds of Appeal as expressed in the Notice of Appeal, nor as construed by reference to those grounds advanced before the Federal Magistrate, have any prospects of success. The Appellants, accordingly, suffer no prejudice by refusing leave to appeal.

52 The exercise of discretion by the Federal Magistrate has not miscarried and her rejection of the Grounds upon which the Application in that Court relied was clearly correct.

53 There is no reason why the Appellants should not pay the costs of the First Respondent.

ORDERS

54 The Orders of the Court are:

1. The Notice of Appeal as filed on 1 April 2010 is dismissed.

2. The Appellants are to pay the costs of the First Respondent, either as agreed or as taxed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 7 June 2010

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