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Federal Court of Australia |
Last Updated: 4 May 2007
FEDERAL COURT OF AUSTRALIA
SZGPS v Minister for Immigration & Citizenship
SZGPS
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
NSD 70 OF
2007
RARES J
30 APRIL 2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The name of the first respondent is changed to ‘Minister for Immigration and Citizenship’.
2. The appeal is dismissed.
3. The appellant pay the first respondent’s costs fixed in the sum of $2,500.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZGPS
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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RARES J
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DATE:
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30 APRIL 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
(REVISED FROM THE
TRANSCRIPT)
1 This is an appeal from a decision of the Federal Magistrates Court (SZGPS v Minister for Immigration [2006] FMCA 1950). The trial judge rejected the present appellant’s claim that the decision of the Refugee Review Tribunal made on 25 May 2005 and handed down on 14 June 2005 affirming a decision of a delegate of the Minister not to grant a protection visa was affected by jurisdictional error.
2 The essence of the appellant’s claim was that he was a homosexual. A national of Bangladesh, he claimed that after his sexuality was discovered by his grandfather he and his partner had had to leave Bangladesh with the assistance and encouragement of his grandfather to live in Saipan, so as to avoid persecution based on the disapprobation by Bangladeshi society and his family of homosexuality. The appellant however was not believed by the tribunal. It did not accept that he was or is a homosexual and as a result it found that he did not have a well-founded fear of persecution in Bangladesh for a Convention reason. His Honour found no jurisdictional error in the tribunal’s decision.
3 The notice of appeal in this Court does not claim that his Honour made any error apart from failing to grant his application for constitutional writ relief. The notice of appeal asserts that the appellant had been denied procedural fairness by the tribunal because it was biased and had applied some technical basis for testing his credibility in order to achieve a result which it had already arrived at in its mind. This was because the appellant asserted that the tribunal had failed to take into account the full gravity of his circumstances and the consequences of any decision it would make. The notice of appeal asserts, without elaboration, that the decision of the tribunal was an improper exercise of the power conferred by the Act. It also asserts that there was a jurisdictional error which included the interpretation of the law applying to the facts because the tribunal allegedly failed to comply with s 424A of the Migration Act 1958 (Cth). The basis of that failure was said to be a reference to independent evidence by the tribunal in the section of its reasons dealing with the claims and evidence. This included three identified items of country information which do not appear to be referred to in the section of the tribunal’s reasons headed ‘Findings and Reasons’. The appellant also alleged that the tribunal denied him natural justice, made a decision which was unjust and had no substantive or other material or evidence to justify its decision.
4 I will deal with the substantial grounds raised by the appellant in turn.
BIAS
5 The claim that the tribunal was biased appears to be based on the appellant’s assertion that in its reasoning the tribunal can be seen to have exhibited a closed mind or a mind intent to find against him.
6 I have read the material in the appeal papers and paid close attention to the reasons of the tribunal. There is no substance in the allegation of bias. There is nothing to suggest an appearance of bias in the way in which the tribunal approached its determination of the appellant’s claim. The mere fact that the tribunal formed an adverse view of the appellant’s credibility cannot sensibly be seen as evidencing a basis for a suggestion of bias or apparent bias in the tribunal. It was the tribunal’s function to form a view as to the appellant’s credibility in order to assess whether or not his application for a protection visa ought be granted. It gave its reasons for the formation of its view as to his credibility in a way which revealed a careful examination of the appellant’s evidence after having afforded him the opportunity to explain his case to it during the course of the hearing.
7 I am of the opinion that there is no substance whatever in the allegation of bias or apparent bias against the tribunal.
IMPROPER EXERCISE OF POWER
8 There is no basis on the material before me to suggest the tribunal acted otherwise than in accordance with law. I reject this ground of appeal.
JURISDICTIONAL ERROR – SECTION 424A
9 As I have said, the country information referred to by the tribunal in its reasons was not expressly referred to in the section of its reasoning headed ‘Findings and Reasons’. In any event, the country information which the tribunal referred to was not information that was specifically about the appellant or another person but was just about a class of persons of which he was, or claimed to be, a member and therefore fell within the exception in s 424A(3)(a). This allegation is without substance.
10 Before his Honour and, I have inferred, before me the appellant also raised a failure to comply with s 424A because the tribunal referred to the material in the appellant’s detailed statement in support of his application for a protection visa which was made to the delegate. In addition the tribunal referred to material in the appellant’s passports when it gave its reasons and I apprehend that he complains about that being a matter which s 424A(1) obliged the tribunal to give him notice in writing about before it proceeded to find against him.
11 The trial judge rejected both these complaints about a failure to comply with s 424A but his Honour’s reasons did not elaborate the factual basis on which he rejected the application in any detail.
12 The appellant was represented before the tribunal by EastWest Immigration Services, a registered migration agent. The agent submitted the application for review to the tribunal together with a detailed letter of submissions. In that letter the agent referred to the delegate’s decision and said that the appellant had instructed the agent to submit that there was a typing mistake in the original statement provided to the delegate concerning when the appellant’s relationship with his friend had been discovered by the appellant’s grandfather, who had then organised the trip to Saipan for the friend and the appellant in February 1997. The agent’s letter continued by saying that the appellant had instructed him to submit to the tribunal the correction of the typing mistake and ‘to update the information accordingly’.
13 I am of opinion that that invitation expressed in that way, particularly having regard to the whole of the way in which the agent’s letter was written, amounted to a republication of the material which the appellant put before the delegate. An objective person reading the agent’s letter and the application for review together would understand that the tribunal was being invited to consider what the appellant had put to the delegate in writing and otherwise in light of the updating and other comments in the agent’s letter: see SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [35]- [50].
14 The significance of this is that the tribunal then had before it all that the appellant had put to the delegate about the circumstances in which he made his original claim. For those reasons there was no error in the tribunal having regard to, or using as a basis for any finding against the appellant, any of that material: see s 424A(3)(b). The material which the appellant gave to the delegate included a detailed explanation of the circumstances in which he applied for a visa to Australia, returned to Bangladesh in early 2004, endeavoured to use his visa and his old passport in Hong Kong in March 2004, but was then rejected by the Hong Kong immigration officials on the basis that his photograph was seven years old and did not match his then current appearance. In those circumstances the appellant gave an explanation of getting a new passport, returning to Saipan in April 2004 and then coming to Australia later that year.
15 The tribunal referred to the travels of the appellant which were set out in his original application to the delegate as supporting its conclusion that it was not satisfied about the credibility of his claims. No basis has been shown that the tribunal was obliged to give any information to the appellant under s 424A(1) of the Act in respect of any of this material, since it had been provided to the tribunal by him for the purposes of his application within the meaning of s 424A(3)(b).
OTHER DENIALS OF NATURAL JUSTICE
16 Section 422B of the Act provides that Div 4 of Pt 7 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. I have already dealt with the other aspect of the principles of natural justice or procedural fairness, namely bias. There is no basis on which any breach of the provisions of Div 4 of Pt 7 of the Act, or whatever else may remain of the natural justice hearing rule apart from that Division, support the allegation in the notice of appeal. I reject it.
17 The notice of appeal also asserts that the decision was unjust and failed to take into account the full gravity of the circumstances of the appellant’s claims. It is not the function of the Court to engage in merits review. The Parliament has confided to the tribunal that task. The task of the Court is to ensure that the tribunal has acted within the jurisdiction conferred upon it by the Parliament. There is no basis in the material before me to conclude that the tribunal made any jurisdictional error.
NO SUBSTANTIVE MATERIAL OR OTHER EVIDENCE TO JUSTIFY THE DECISION
18 The appellant did not raise this ground of appeal before the tribunal. The Minister has objected to it being considered. In my opinion it is not necessary to decide the objection. There is just no basis in the material before me to support the allegation and I reject it.
SECTION 424A – REFERENCES TO CASE LAW
19 The appellant also argued that, when the tribunal introduced its reasons by identifying its understanding of the definition of ‘refugee’ for the purposes of the Act and referring to a number of well known authorities in the High Court and sections of the Act, that was material to which s 424A(1) applied. This is entirely without substance. References to case law and sections of the Act in the reasons of the tribunal were not specifically about the appellant or any other person. Rather, they were setting out the tribunal’s understanding of the law in general and identifying how it would proceed to apply the law to the case. There was nothing in this part of the reasons of the tribunal which was about the appellant or which required the tribunal to give to him particulars of information in the decisions or the Act under s 424A(1)(a). Rather, this material was general and in any event was part of the tribunal’s legal reasoning processes. I reject the submission.
20 Having carefully considered the tribunal’s reasons and all the
matters put to me in the appellant’s notice of appeal
and written
submissions, I am of opinion that the appeal fails and must be dismissed with
costs.
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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