SZFQB v Minister for Immigration & Citizenship [2008] FCA 77 (13 February 2008)

Last Updated: 21 February 2008

FEDERAL COURT OF AUSTRALIA

SZFQB v Minister for Immigration & Citizenship [2008] FCA 77

Migration Act 1958 (Cth) s 424A(1)

Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 cited
SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 159 FCR 291 applied
SZFQB v Minister for Immigration & Citizenship [2007] FMCA 1518 considered





























SZFQB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1971 OF 2007

BENNETT J
13 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1971 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BENNETT J
DATE OF ORDER:	13 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs.

3. The first respondent has leave to send to chambers, within two (2) days, an affidavit in support of an application for fixed 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	NSD 1971 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BENNETT J
DATE:	13 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant is a citizen of Bangladesh. The appellant claims fear of persecution in Bangladesh because of his political beliefs, in particular because of involvement in the activities of the Awami League. The appellant’s application for a Protection (class XA) visa was refused by a delegate of the Minister for Immigration & Multicultural Affairs in 2004. The decision of the delegate was affirmed by the Tribunal in December 2004 (‘the first decision’). Before arriving at the first decision, the Tribunal sent a letter to the appellant which contained information on which the Tribunal invited the appellant to comment (‘the first s 424A letter’). The information related to documents from members of the Awami League that the appellant had provided to the Tribunal. The appellant responded to that letter. In October 2006 the Federal Magistrates Court, by consent, set aside the first decision. The case was remitted to the Tribunal for reconsideration according to law.

2 A differently constituted Tribunal conducted a new hearing on 8 December 2006. Following that hearing, the Tribunal again wrote to the appellant (‘the second s 424A letter’). No response was received from the appellant and the reconstituted Tribunal, in a decision signed on 21 January 2007, again affirmed the decision not to grant the appellant a protection visa.

REVIEW BEFORE THE FEDERAL MAGISTRATE

3 The appellant appealed to the Federal Magistrates Court from the decision of the reconstituted Tribunal (SZFQB v Minister for Immigration & Citizenship [2007] FMCA 1518). The appellant claimed that:

• the Tribunal had already made up its mind to affirm the delegate’s decision by the time it sent the second s 424A letter, that is, a ground of apprehended bias; and

• the Tribunal had not complied with s 424A of the Migration Act 1958 (Cth) (‘the Act’), specifically there was a failure to advise the appellant of information received by the Tribunal, that many members of the Awami League are prepared to offer letters of support at the request of applicants such as those the appellant tendered to the Tribunal.

4 Federal Magistrate Cameron found that there had been no jurisdictional error on the part of the reconstituted Tribunal (at [21]). His Honour observed that the appellant only identified, in support of an inference of apprehended bias, the second s 424A letter and the Tribunal’s ultimate findings (at [14]). His Honour observed that absent a response by the appellant to that letter, there was nothing upon which to base a conclusion that the Tribunal’s mind was closed. His Honour commented further that it was unsurprising that, in the absence of a response from the appellant, the matters raised in the second s 424A letter ultimately formed at least part of the reasons why the Tribunal affirmed the delegate’s decision and the two coincided. His Honour also noted that the fact that the second s 424A letter disclosed a predisposition on the part of the Tribunal is not indicative of a closed mind (at [15] citing Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [71]- [72] per Gleeson CJ and Gummow J).

5 As to the alleged breach of s 424A of the Act, the information with regard to letters from members of the Awami League was contained in advice received from the Australian High Commission in Dhaka. That information was put to the appellant for comment in the first s 424A letter sent by the first Tribunal. It was not contained in the second s 424A letter. However, as Cameron FM pointed out, the s 424A information was sent by the Tribunal to the appellant (at [17]). The fact that the first s 424A letter was sent by the first Tribunal and not the reconstituted Tribunal, does not make it any less a letter pursuant to s 424A(1) of the Act for the purposes of the second hearing (at [18]). Federal Magistrate Cameron referred in this respect to SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 159 FCR 291.

THE CURRENT APPEAL

6 In his notice of appeal setting forth the grounds of appeal from the decision of the Federal Magistrates Court the appellant raises, in effect, the same grounds as those raised before his Honour.

7 The first ground asserts error on the part of the Federal Magistrate and failure to provide relief because it is said the reconstituted Tribunal cannot rely on the first s 424A letter, sent by the first Tribunal.

8 The second ground alleges that there was a reasonable apprehension that the Tribunal member had made up his mind to affirm the decision of the delegate at the time when the reconstituted Tribunal sought to comply with its obligations under s 424A of the Act. The particulars given of that ground set forth the tests to be applied in the determination of apprehended bias and an assertion that the Tribunal member had already decided to affirm the decision of the delegate at the time that the letter was sent.

9 As to the first ground, I do not see any error in the reasoning of the Federal Magistrate or his Honour’s reliance on SZEPZ. The information that formed part of the reason for decision of the reconstituted Tribunal, which it was obliged to provide to the appellant for comment, was the information as to false documents that was contained in the first s 424A letter. As such, it was available to the reconstituted Tribunal to rely upon it without further requirement that it be sent to the appellant again. Although it is for the member of the reconstituted Tribunal to provide the consideration of what would be the reason or part of the reason for affirming a decision under review, the sending of information for the purposes of s 424A(1) of the Act and the receipt of information for the purposes of s 424A(3)(b) does not depend on the identity of the particular member constituting the Tribunal (SZEPZ at [39]–[40]).

10 I also agree with his Honour’s reasons for rejecting the claim of apprehended bias. No basis to support this ground has been made out. The appellant appeared before me in person assisted by an interpreter. When asked to expand upon this ground, he asserted that the Tribunal had made its decision in bad faith but was unable to provide particulars other than his wish to have the decision set aside so that he could put more information, being further material that was not before the Tribunal at the time of his decision. to the Tribunal in order to enable it to come, he said, to a different conclusion.

CONCLUSION

11 I have not discerned jurisdictional error on the part of the Tribunal nor error on the part of the Federal Magistrate.

12 It follows that the appeal must be dismissed. The appellant is to pay the first respondent’s costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 18 February 2008

The Appellant was self represented
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 February 2008
Date of Judgment:	13 February 2008