SZFYW v Minister for Immigration & Citizenship [2008] FCA 1259 (18 August 2008)

Last Updated: 20 August 2008

FEDERAL COURT OF AUSTRALIA

SZFYW v Minister for Immigration & Citizenship [2008] FCA 1259

MIGRATION – earlier Tribunal decisions – findings not binding on later Tribunal – genuine opportunity to be heard – no apprehension of bias


Migration Act 1958 (Cth), ss 424A, 425, 430


Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11, 215 CLR 518 followed
NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, 214 ALR 264 followed
NBKM v Minister for Immigration & Citizenship [2007] FCA 1413 considered
Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264, 42 AAR 297 followed
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 followed
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 followed
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58], [2003] HCA 60; 201 ALR 437 followed
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 81 ALJR 1190 followed
SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390 considered
SZFYW v Minister for Immigration & Citizenship [2008] FMCA 813 cited
SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 followed
SZIAT v Minister for Immigration & Citizenship [2008] FCA 766 followed












SZFYW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1001 OF 2008

FLICK J
18 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 1001 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFYW Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	18 AUGUST 2008
WHERE MADE:	SYDNEY

THE ORDERS OF THE COURT ARE:

1. The appeal be dismissed.

2. The Appellant to pay the costs of the First Respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 1001 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFYW Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE:	18 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Appellant is a citizen of China who arrived in Australia on 7 July 2004.

2 He applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 19 July 2004. That application was refused on 21 July 2004 and the now Appellant sought review by the Refugee Review Tribunal. There thereafter followed two decisions of the Tribunal, both decisions being set aside by decisions of the Federal Magistrates Court.

3 The third decision of the Tribunal, and the one the subject of decision by the Federal Magistrates Court which is now under appeal, was signed on 8 February 2008. Before the Tribunal the now Appellant claimed to have a well founded fear of persecution because he copied CDs in a computer shop that he owned for the "Shouters", an underground Church. He claimed that the Public Security Bureau came to the shop and arrested his part-time assistant and detained him for a week. A Shouter who used to deliver material to the Appellant’s shop was, it was claimed, arrested and tortured and disclosed that it was the Appellant who had been copying material for the Shouters.

4 The decision of the Tribunal was to affirm the decision not to grant a protection visa. The Federal Magistrates Court on 13 June 2008 dismissed an application seeking review of that decision: SZFYW v Minister for Immigration & Citizenship [2008] FMCA 813.

5 The Notice of Appeal sets forth five Grounds, which in summary form contend that the Federal Magistrates Court "erred in law", those errors arising out of:

(i) the inconsistent findings made by earlier decisions of the Tribunal in respect to the now Appellant’s claims;

(ii) an apprehension of bias arising out of the manner in which the Tribunal considered his claims;

(iii) a failure on the part of the Tribunal to provide "clear particulars" of information and a failure to comply with s 424A(1) of the Migration Act 1958 (Cth);

(iv) a failure on the part of the Tribunal to provide a "genuine opportunity" to be heard and a failure to comply with s 425 of the 1958 Act; and

(v) a failure to "properly and fairly" consider the application for review.

6 The Appellant appeared before this Court this morning unrepresented, although he did have the benefit of an interpreter.

7 None of the Grounds of Appeal have been made out and the appeal must be dismissed.

8 In respect to the first Ground of Appeal, the learned Federal Magistrate accepted that the various decisions of the Tribunal recorded different factual conclusions. But that Ground was rightly rejected by the Federal Magistrate.

9 The earlier two Tribunals were differently constituted and each Tribunal recorded its decision based upon the findings each had made. A later Tribunal is not bound by findings made by an earlier Tribunal: SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138. Gray J there observed:

[18] ... The Tribunal must determine a review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time. For all sorts of reasons, the facts as they appear to the Tribunal member making the second decision may differ significantly from the facts as they appeared to the Tribunal member who made the earlier decision. ... [19] In the light of this practical problem, and the part that the reasoning processes of the Tribunal play in the ascertainment of what the issues are, there is a necessary fluidity of those issues until the particular Tribunal member is in the process of grappling with the case. In those circumstances, the Tribunal member cannot regard himself or herself as limited to dealing only with the facts and issues that were perceived by an earlier Tribunal member who has made a decision that has been set aside. The role of the Tribunal’s reasoning processes also means that the problem cannot be solved simply by asking the applicant whether there are any new issues, or whether he or she wishes to provide any new information. The possibility that the Tribunal member will himself or herself perceive issues that have not been thought of previously cannot be disregarded. ...

10 Proceedings before the Tribunal, it will be recalled, are but part of an administrative decision-making process and not adversarial litigation. An administrative determination by one Tribunal thus results in no conclusive determination binding on subsequent Tribunals called upon to make a subsequent decision, even in respect to the same claim. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11, 215 CLR 518 at 540–1 Gummow and Hayne JJ explained the position as follows:

[71] In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process [Mahon v Air New Zealand Ltd [1984] AC 808 at 814; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282]. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision -- in this case the grant of a protection visa -- and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision.

See also: NBKM v Minister for Immigration & Citizenship [2007] FCA 1413 at [25]–[28] per Siopsis J.

11 In some circumstances it may be prudent for a Tribunal to record why it departs from findings previously made by a differently constituted Tribunal. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J observed, albeit in a different context (at 639):

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.

Appl’d: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22], [2005] AATA 1264; 42 AAR 297 per Downes J. In the present context it may be that there is no "inconsistency" as such, as opposed to different conclusions being reached upon the basis of different material. But it may nevertheless remain desirable to explain a departure from earlier findings. And, in some circumstances, such an obligation may be imposed upon the Refugee Review Tribunal by s 430(1)(b) and (c) of the 1958 Act, namely the requirement for a Tribunal to prepare a written statement that "sets out the reasons for the decision" and its "findings on any material questions of fact". But there can be no universal obligation to do so. Departures from findings previously made may arise (for example) simply by reason of the evidence being considered being different or by reason of a different assessment being made as to an applicant’s credibility. In the present appeal there was further evidence not previously called before either of the first two Tribunals.

12 In the present appeal, no reason emerges to question the fact that the Tribunal has properly considered the materials before it and properly recorded its findings and reasons. It would have been desirable, however, for it to have briefly explained why it departed from conclusions previously reached by the earlier two Tribunals.

13 The second Ground of Appeal should also be rejected. A claim of reasonable apprehension of bias must be "firmly established": Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352. And the question as to whether a reasonable apprehension of bias has been "firmly established" must also take into account the manner in which the legislature has directed the Tribunal to carry out its functions, including the inquisitorial nature of the review being undertaken: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58], [2003] HCA 60; 201 ALR 437 at 450–1; NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14]–[21], [2004] FCAFC 328; 214 ALR 264 at 268–9 per Allsop J (Moore and Tamberlin JJ agreeing).

14 The factual basis in the present proceeding said to support the claim as to bias, as set forth in the Notice of Appeal, included a contention that the Tribunal:

... completely ignored those findings made by previously constituted Tribunal; and the Tribunal has looked at my case with apprehensive bias that a person like me who was not a member of the Shouters would not get involved in copying CDs for the Shouters. With such a strong bias, what the Tribunal intended to do at the hearing was to pick up evidences or information according to its own taste in order to support her prejudice.

15 To the extent that reliance is sought to be placed upon a departure from findings made by the Tribunal as previously constituted, the contention is misplaced. To the extent that it is contended that the Tribunal as last constituted did not genuinely consider the claims being made, the contention is not made out. A review of the reasons for decision of the third Tribunal exposes nothing other than a careful and detailed analysis of the facts presented. The Tribunal’s decision now under consideration sets forth the evidence provided by the now Appellant. Those reasons also include extracts from the reasons for decision of the prior two Tribunals as to the evidence then given by the Appellant. The current Tribunal’s reasons also record that it listened to the tape recordings of the earlier Tribunal hearings. The current Tribunal’s reasons also record that the now Appellant was asked whether "he wanted to change or add to anything he had previously said".

16 The Federal Magistrates Court correctly rejected a like ground.

17 The third Ground of Appeal is expanded upon by the Appellant as follows:

In my case, we do not talk about "the Tribunal’s doubts about evidence" but the information wrongly obtained from the evidence given by my witness himself as well as the information wrongly obtained from my wife’s letter.

Before the Tribunal the now Appellant called a witness, a cousin who told the Tribunal "what he has suffered in China". This oral evidence was an example of evidence not previously called. The now Appellant also produced a letter from his wife, which the Tribunal concluded "has been fabricated to bolster the applicant’s claims". What was the further information "wrongly obtained" was not able to be identified by the Appellant during the course of the hearing of the appeal today.

18 Neither the witness’s evidence nor the letter constituted "information" for the purposes of s 424A of the 1958 Act: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17], [2007] HCA 26; 81 ALJR 1190. And, even if it did constitute "information", the evidence and the letter fell within the exception in s 424A(3)(b), namely "information ... that the applicant gave for the purpose of the application": cf SZIAT v Minister for Immigration & Citizenship [2008] FCA 766 at [39] per Gordon J.

19 The learned Federal Magistrate was correct in dismissing this contention. The third Ground of Appeal is rejected.

20 The fourth Ground of Appeal goes on to provide that:

... With apprehensive bias mentioned above, the Tribunal failed to provide a genuine opportunity at the Tribunal’s hearing; and thus the Tribunal has definitely failed to comply with its obligations under s.425 of the Act.

The Ground as to an apprehension of bias has been rejected and there is no other reason why the same fate should not befall this Ground. As required by s 425(1), on 21 November 2007 a letter was forwarded to the now Appellant inviting him to attend the hearing before the Tribunal on 19 December 2007 and he did in fact attend on that date. This Ground too is rejected. The importance of s 425 is repeatedly acknowledged, including its importance in providing "a compulsory opportunity for an applicant to persuade the Tribunal face to face" with the person making the decision: SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 at [28] per Gyles J.

21 In some circumstances a departure by a reconstituted Tribunal from the findings and conclusions of an earlier Tribunal may constitute a denial of procedural fairness and a denial of the opportunity "to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review", as required by s 425(1): eg SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390. But such is not the present case. The Tribunal’s reasons thus contain the following passage:

The Tribunal again told the applicant that it had listened to the tapes of his two previous hearings with the first and second Tribunal and that this Tribunal may take into account what he had told previous Tribunals. The Tribunal asked the applicant if he wanted to change or add to anything he had previously said. The applicant stated that he did not. The Tribunal put to the applicant that it was still concerned about why Shouters would ask the applicant, who is not a member of the Shouters, to burn CDs when this task could have been done on a personal computer, in secret. The applicant stated that all he knows is that none of the Shouters do this kind of thing and that perhaps they came to him because he was a good friend of Mr [X] and because he had no religious beliefs and so would not attract the PSB.

These were the factual issues later resolved against the now Appellant by the Tribunal. No breach of s 425 can be discerned. The now Appellant was given every opportunity "to persuade" the Tribunal on each of the issues resolved against him.

22 The final Ground seeks to contend that the Federal Magistrates Court failed to consider the application "properly and fairly". That Ground is without substance.

23 The appeal must be dismissed with costs.

ORDERS

24 The orders of the Court are:

1. The appeal be dismissed.

2. The Appellant to pay the costs of the First Respondent.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 18 August 2008

The Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	18 August 2008
Date of Judgment:	18 August 2008