SZAXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1149 (22 August 2005)

Last Updated: 23 August 2005

FEDERAL COURT OF AUSTRALIA

SZAXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1149

MIGRATION – no error in Federal Magistrate’s decision as to the grounds of no evidence and apprehended bias



SZAXZ v Minister for Immigration [2005] FMCA 3, upheld





























SZAXZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 156 OF 2005

GYLES J
22 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 156 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAXZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	22 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 156 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAXZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	22 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1 This is an appeal from a judgment of Driver FM (SZAXZ v Minister for Immigration [2005] FMCA 3) delivered on 18 January 2005, which dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal) made on 11 April 2002 and handed down on 7 May 2002. The Tribunal affirmed a decision of the delegate of the Minister not to grant the appellant a protection visa.

2 The appellant is a citizen of Syria who first arrived in Australia in 1999, left and returned again in January 2000. He lodged an application for a protection visa (Class XA) on 16 February 2000. This application was refused by a delegate of the Minister on 4 August 2000. The appellant’s essential claim was that, if he returned to Syria, he feared persecution on religious grounds as he is a practising Baptist Christian known as such to the Syrian authorities.

THE TRIBUNAL DECISION

3 The appellant provided information to the Tribunal before the hearing and appeared before the Tribunal with a witness and an adviser. The Tribunal found that the appellant was not a credible witness, noting that key aspects of the appellant’s testimony and claims were implausible and that he was unable to satisfactorily explain these implausibilities. Moreover, in light of the fact that the appellant is well educated and had the assistance of a migration agent, the Tribunal found that his claims were very vague, general and not sufficiently detailed to be believable.

4 It also found that his claims were at odds with the independent evidence which, amongst other things, documents that Christians are a respected minority in Syria and that there was no evidence of harassment, discrimination or persecution against those who convert to Christianity in Syria. On the strength of the available independent evidence that there was a high level of document fraud in Syria, the Tribunal was also not satisfied regarding the authenticity of certain documents tendered by the appellant. It found that two of his documents were not authentic. The Tribunal was not impressed by the witness made available by the appellant or by the documents provided by the appellant. The Tribunal accepted the country information over the claims of the appellant because the information was independent, detailed and up to date.

5 Having rejected the appellant’s core claims, the Tribunal did not accept the appellant’s other claims. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution due to religion, political opinion or for any other Convention reason. Therefore, it found that the appellant was not a person to whom Australia owed protection obligations and affirmed the decision not to grant a protection visa.

THE FEDERAL MAGISTRATE’S DECISION

6 The proceeding in the Federal Magistrates Court was conducted upon the basis of a further amended application for judicial review of the Tribunal’s decision. The application had been amended more than once since the filing of the original application on 14 July 2003. The appellant was represented before the Federal Magistrate. The appellant gave evidence and a transcript of the hearing by the Tribunal was in evidence.

7 The learned Federal Magistrate addressed the three grounds of relief in turn.

No evidence

8 Counsel for the appellant submitted that there was no evidence to support the Tribunal’s finding that ‘there was a high level of document fraud’ in Syria, and that finding was critical to the Tribunal’s decision to give no weight to certain documents provided by the appellant. It was contended that the conclusion of ‘no evidence’ follows from the fact that the one document which the Tribunal cites as the basis for the finding, does not, in fact, support the finding, given its context.

9 Driver FM found that there was no basis for this ground as there was some, albeit limited, evidence supporting the finding that there was widespread document fraud based upon material from the Department of Foreign Affairs and Trade (DFAT).

10 Driver FM recognised that applying that general evidence to the documents in question involved a ‘logical leap’ but did not accept that the ground of no evidence could be made out. It was not necessary to consider whether, if established, that ground, in relation to limited supporting evidence only, would amount to jurisdictional error.

Apprehended bias

11 Counsel for the appellant asserted that the transcript of the Tribunal hearing and the reasons of the Tribunal support the conclusion that a reasonable and informed ‘lay-person’ would not consider that the Tribunal was approaching or conducting the hearing with an open mind, and would conclude that nothing the appellant said or provided to the Tribunal could or did change the Tribunal’s view, citing Ferguson v Cole [2002] FCA 1411; (2004) 76 ALD 399 at [23]–[27]. In particular, the appellant’s counsel complained that attempts to provide information were rebuffed or ignored. Counsel raised as examples to support this assertion the Tribunal’s approach to the issue of whether or not the Baptist Church had been closed down in Syria at p 16 of the transcript of the Tribunal hearing and the Tribunal’s behaviour in regard to the appellant’s offer of material relating to his case at p 12.

12 Upon a careful examination of the transcript and materials, Driver FM was not satisfied that apprehended bias was exhibited. He found that the Tribunal member had appropriately adopted an inquisitorial approach and was firm but fair in requiring clear answers to his questions. The failure to accept the proffered material did not establish a perception of bias.

Failure to take into account a relevant consideration

13 The ground of failure to take account of a relevant consideration in considering whether the appellant was at risk of persecution because of a political opinion imputed to him as a prominent member of the Baptist Church in Syria, was raised for the first time in the third amended application at the suggestion of Driver FM at the hearing. On reflection, Driver FM found that, from a fair reading of the Tribunal’s reasons, the Tribunal considered both the appellant’s claims of religious persecution and of political persecution. His Honour therefore found that there was no substance to the ground. This ground was not argued on this appeal.

14 As no jurisdictional error was established, the application was dismissed. In those circumstances, Driver FM found that it was unnecessary to consider whether relief should be refused on the ground of delay.

THIS APPEAL

15 By the notice of appeal filed at 7 February 2005, the appellant sought to raise three grounds of challenge. The third ground was not raised before the Federal Magistrate. Those grounds are as follows:

‘Ground 1
His Honour erred in holding that the conduct and reasons of the Tribunal did not give rise to a reasonable apprehension of bias;
Particulars
(i) His Honour should have found that a fair-minded lay person, properly informed as to the nature of the proceedings and the matters in issue, who was present at the hearing and who was apprised of the Tribunal’s decision and reasons for decision, would consider that the Tribunal was biased against the Appellant, in the sense that their mind was closed to the issues raised by the Appellant, and nothing the Appellant or his witnesses said at the hearing could have changed the view that the Tribunal had taken about the Appellant’s case.
(ii) The Tribunal obtained particulars of all matters, including dates, which the Tribunal queried the Appellant over at the hearing (and had suggested were lacking in the original application), and received them without comment, yet gave the [Appellant] no credit for them in its reasons for decision, instead returning to the theme which permeated the hearing, that the Appellant’s claims were "too vague and general" to be believable (for instance, at RD 149.1, RD 152)
(iii) The Tribunal refused to allow the Appellant to tender a document which the appellant wished to tender in an attempt to answer the Tribunal’s request for ‘independent documentation’ to support a statement in a Baptist Board of Alliance letter that the Baptist Convention was no longer registered in Syria (transcript ("tr.") at p 16.21)
(iv) The Tribunal ignored the evidence of the Appellant’s witness at the hearing that he was "expelled from Syria because of [his] function or job as a man of religion" (tr. p23), his job being, as the Tribunal accepted (RD 148), leader of the Baptist Church, and found that there was "no evidence that Baptist Christians have been mistreated in Syria..." (at RD 151, para 3)
(v) The Tribunal was prepared to make a positive finding of fraud (as opposed to simply not being satisfied that documents were genuine) and to use that finding against the Appellant generally, without providing any rational reason for the finding that the particular documents were fraudulent.
[I will refer to this henceforth as the ‘apprehension of bias’ issue]
Ground 2
The Court erred in holding that there was evidence to support the finding that there was a high level of document fraud in Syria;
Particulars
(a) The Court should have found that there was no evidence to support the Tribunal’s finding that "there was a high level of document fraud" in Syria (as opposed to at Damascus airport) and that finding was critical to the Tribunal’s decision.
(b) That there was no evidence can be inferred by necessary implication from the fact that the one document which the Tribunal cites as the basis for such a finding, does not, in fact, support the finding, being a response to a specific question about the likelihood that Syrian Kurds could depart Syria on false Iranian exit documents, being directed to that question, and referring to material provided to western diplomatic missions presumably in support of visa applications.
[I will refer to this henceforth as the ‘no evidence’ issue]
Ground 3
The Court erred in failing to find that the refusal to accept the document which the Appellant attempted to tender at the hearing referred to in ground one, particular three led to a denial of natural justice, and thus jurisdictional error.
The Court should have found that there was a denial of natural justice in refusing to allow the Appellant to tender the document, as evidence of forced closure of the Baptist Mission in Syria.’
[I will refer to this henceforth as ‘procedural fairness’ issue]

DECISION

Procedural fairness

16 During the hearing I ruled that the appellant would not be permitted to raise the procedural fairness issue. In the first place, it is not appropriate to allow a fresh argument on appeal. The judgment appealed from sets out the numerous amendments made by the appellant in the Federal Magistrates Court. There must be an end to litigation. In the second place, the point has no substance. The appellant was accompanied at the hearing by a migration agent. There was no barrier to the agent producing the information in question to the Tribunal either at or after the hearing. Once the Tribunal member’s questioning was over, the appellant himself could have renewed the provision of the information.

No evidence

17 During the hearing I also indicated that I would not uphold the no evidence ground. I could detect no error in the manner in which the issue was dealt with by Driver FM. There may have been a leap in logic (or perhaps two) in moving from the airport to the wider community and then to the documents in question, but I agree that that is not sufficient to establish this ground. Furthermore, to say that there was no evidence for one collateral finding of fact, among many, leading to a result would not normally establish jurisdictional error.

Apprehension of bias

18 I have read and considered the transcript of the hearing and the decision of the Tribunal in the light of the submissions of counsel for the appellant. Having done so, I can find no appealable error in the manner in which this issue was dealt with by the learned Federal Magistrate. There is no suggestion of any error of law. The issue was canvassed in a careful and reasoned fashion. Establishment of bias by prejudgment based on material such as that referred to here is very much a matter of impression. The decision below on such an issue is not lightly to be set aside. The mere fact that an appellate court may take a different view of the factual issue is not sufficient to disclose error. In any event, I do not disagree with the conclusion of Driver FM. The process of the Tribunal is primarily documentary. The Tribunal considered that material in advance of the hearing. It was bound to form views about that material. There were enough discrepancies in the material provided by the appellant to call for the explanations demanded. The failure to receive the proffered material was consistent with the Tribunal member not wishing to be deflected from a line of questioning. Failing to return to that issue hardly establishes bias. It rather seems to have been overlooked by all, including the appellant and his adviser. The explanations of the appellant did not satisfy the Tribunal member as to the apparent discrepancies and the decision is framed accordingly.

CONCLUSION

19 The appeal is dismissed. The appellant is to pay the costs of the respondent.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 22 August 2005

Counsel for the Appellant:	C Jackson
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 May 2005
Date of Judgment:	22 August 2005