SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 529 (12 May 2006)

Last Updated: 12 May 2006

FEDERAL COURT OF AUSTRALIA

SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 529

SZELD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 257 OF 2006



EDMONDS J
12 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 257 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZELD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE OF ORDER:	12 MAY 2006
WHERE MADE:	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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZELDAPPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRSFIRST RESPONDENTREFUGEE REVIEW TRIBUNALSECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	12 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

INTRODUCTION

1

This is an appeal from orders made by the Federal Magistrates Court of Australia on 27 January 2006. The reasons for those orders are recorded in SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 74 (‘the Remitter Judgment’).

2

The proceedings have previously been before this Court on appeal: see SZELD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1246 (‘the Appeal Judgment’). In that proceeding Gyles J upheld the appellant’s appeal on the confined basis that the claim of bias made by the appellant had not been dealt with by the Federal Magistrate below. His Honour ordered that the matter be remitted to the Federal Magistrates Court in accordance with the reasons: see the Appeal Judgment at [7]. The appeal that is now before the Court is an appeal from the orders made on remitter.

APPEAL JUDGMENT

3	In the Appeal Judgment Gyles J made the following findings:

(a) The learned Federal Magistrate considered the case and rejected all of the attacks on the findings of the Refugee Review Tribunal (‘the Tribunal’) for reasons which, except in one respect, could not be criticised. The appeal had no substance save for that one matter: [2].
(b) That matter was the following claim:
‘The way the Tribunal conducted investigation of this claim proves that this decision was premeditated. It also reflects the Tribunal was narrow minded and bias.’

(c) The reasons of the Federal Magistrates Court did not refer to the claim of bias: [3].
(d) In the case of a claim of actual or perceived bias the judgment involved requires an examination in some detail of the nature of the case presented, the course of the proceedings before the Tribunal and the reasons of the Tribunal: [5].
(e) Certain aspects of the matter required close consideration, namely (see at [7]):

(i) The reference by the Tribunal member to questioning the appellant about a letter written by his migration agent in which he was advised that the application had little chance of success.
(ii) The questioning of the appellant by the Tribunal as to why his application for a visa to the USA had been refused in 1999.
(iii) The Tribunal reference to the fact that the appellant did not repeat various claims to the Tribunal and referred to the meagre oral testimony which he had provided.

REMITTER JUDGMENT

4	In the Remitter Judgment, the learned Federal Magistrate:

(a) Set out the findings of Gyles J in [3] supra.
(b) Set out a statement of the law on bias and apprehended bias, adopting for the purpose written submissions of the first respondent’s (‘the Minister’) counsel.
(c) Accepted a tender of the transcript of the hearing before the Tribunal.
(d) Considered each of the three matters which Gyles J said required closer consideration by reference to the transcript.
(e) Noted the submission on behalf of the Minister that, in relation to the first two matters, there was nothing in the conduct of the Tribunal hearing that would give rise to a claim of actual bias, nor any apprehension on the part of a fair-minded lay observer that there was a possibility of bias on the part of the Tribunal.
(f) Accepted the Minister’s submission that, although the first two matters were recited in the Tribunal’s decision, they were quite inconsequential in its reasoning.
(g) As to the third matter, accepted the Minister’s submission that on a fair reading of the Tribunal’s decision, supported by the transcript, a fair-minded person would be unable to form the view that the Tribunal had not given the appellant the benefit of the doubt. There was, in his Honour’s view, nothing on the face of the reasons given and the conduct of the Tribunal (as disclosed by the transcript) which would give rise to either actual or apprehended bias.

5	As if by way of conclusion, the Federal Magistrate said (at [31]):

‘It is acknowledged that there was some prodding, probing and testing of the applicant by the Tribunal member and even some plain speaking. But there is nothing in the conduct of the Tribunal which would enable me to form the view that a case of apprehended bias had been made out. It is clear if one has regard to the entire transcript of the hearing that the conduct of the Tribunal was nothing other than normal with all the usual testing and probing. The reasons given by the Tribunal in this matter reflect precisely what happened at the hearing, noting that the final conduct of the Tribunal and its reflections in its reasons is giving the applicant an opportunity to make those documents available even after an extended period of grace by the Tribunal.’

6	The Federal Magistrate noted that the submissions filed by the appellant for the purpose of the remittal hearing addressed matters going beyond the question of bias and apprehended bias. His Honour said (at [33]):

‘Except for the issues of bias and apprehension of bias, all of the attacks upon the Tribunal’s finding were rejected and that approach was not criticised.’

THE APPEAL

7	The appellant made extremely brief oral submissions in support of his appeal, but they only sought to re-agitate the merits of the appellant’s case.
8	The appellant’s notice of appeal raised some sixteen ‘grounds’, most, if not all, of which do not identify any error on the part of the Federal Magistrate; do not sufficiently particularise the alleged error; seek to re-agitate the merits of the appellant’s claim; or seek to put in issue findings of the Tribunal which Gyles J held could not be criticised and had no substance.
9	None of the grounds can sustain the appeal. One ground (2(o)) alleges that ‘The Federal Court failed to see that a reading of the Tribunal’s decision will go to show that the Tribunal was against the appellant all times’. This ground has no substance in the face of the Federal Magistrate’s reasons at [28] – [30].

CONCLUSION

10	The appeal must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 12 May 2006

Solicitor for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 May 2006
Date of Judgment:	** May 2006