WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 (23 August 2002)

Last Updated: 10 September 2002

FEDERAL COURT OF AUSTRALIA

WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286

MIGRATION - judicial review - appeal from primary judge - protection visa application - Minister's delegate refused to issue protection visa - decision affirmed by Refugee Review Tribunal - privative clause decision - allegation of actual bias on the part of the Refugee Review Tribunal - actual bias was not a ground of review relied upon before the primary judge - ground not made out - no reviewable error

WABC OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W 110 OF 2002

HILL, TAMBERLIN & HELY JJ

23 AUGUST 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	W 110 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WABC OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL, TAMBERLIN & HELY JJ
DATE OF ORDER:	23 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	W 110 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WABC OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL, TAMBERLIN & HELY JJ
DATE:	23 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1 The relevant facts of this case are set out in the reasons for judgment of Tamberlin J. I agree with the reasons of Tamberlin J and also I agree with his Honour that the appeal must be dismissed. I would like to add the following comments.

2 The present appeal is an appeal from a single judge of this Court. The appellant here sought to argue in the appeal a ground that was not argued before the primary judge. That, as Tamberlin J has mentioned, was the ground of actual bias.

3 The appellant said that the Tribunal Member had cut him off each time he sought to answer a question put to him. There is a difficulty for us in the appeal to consider whether this was the case because we do not have before us a copy of the transcript of the Refugee Review Tribunal's ("the Tribunal") proceedings. That difficulty also comes about because the matter was not argued before R D Nicholson J. Had it been argued before his Honour, then it would have been necessary for a transcript of the Tribunal's proceedings to be before his Honour if the argument was to have any chance of success.

4 It is a well-established principle of law that leave is required to an appellant to argue a matter that was not argued before the primary judge. Such leave will normally not be given unless it can be shown to be in the interests of justice that leave be given. Where, as in the present case, it would be necessary to consider further evidence, it would generally be inappropriate for leave to be given. I am aware that the appellant is not legally represented and am prepared to take his submission as being a formal application for leave, however, because it would be difficult for the matter now to be ventilated without the transcript of the Tribunal's proceedings I think there is no alternative but to refuse leave to now raise the new matter.

5 As Tamberlin J has pointed out, on the material before us, there is nothing that would support the submission that the Tribunal had a closed mind such as is necessary to constitute actual bias.

TAMBERLIN J:

6 This is an appeal from a judgment of R D Nicholson J. The appellant is a citizen of Iran who arrived in Australia on 15 December 2000. He applied for a protection visa on 1 July 2001 and on 14 August of that year a delegate of the respondent made a decision refusing to grant a protection visa to the appellant. On 16 August 2001 an application was made to the Tribunal for a review of the delegate's decision. Following a hearing on 21 September 2001 at which the appellant gave oral evidence, the Tribunal made a decision on 4 October 2001 affirming the delegate's decision not to grant a protection visa. There was then an appeal to a single judge of this Court and the matter was heard by R D Nicholson J.

7 At the hearing this morning the appellant was obviously under some disadvantage in presenting his case. Obviously the proceeding brought back some stressful memories and the appellant was somewhat distressed. The Court adjourned for a short period of time to allow the appellant to compose himself.

8 The first ground of appeal raised by the appellant is that the Tribunal Member was actually biased against his case because the Member had a closed mind and did not allow him to express his case. This was not a ground of review relied on before the primary judge. The appellant also alleged that the primary judge did not give him an opportunity to present his case. He was unable to point to any specific material to support these allegations.

9 There is of course a heavy burden, as was pointed out in the course of the hearing, on a person who alleges actual bias. In the present case, there is no substance in the allegations on the material before the Court. The decision of the Tribunal is comprehensive and, on the face of the decision, the Tribunal dealt with the appellant's case and raised a large number of issues with the appellant, which are then considered in some detail.

10 On its face the decision of the Tribunal does not show any indication of a closed mind or bias. Likewise, the judgment of the primary judge records the submissions made by the appellant and his Honour proceeds to deal with them. His Honour expressly notes the difficulties with which the appellant was faced because he was unrepresented and is illiterate and it was therefore extremely difficult for him to attempt to articulate his grounds of review. However, there is nothing in the judgment of his Honour to indicate any trace of bias, actual or imputed. This ground of appeal must accordingly fail.

11 The second matter raised, but which was not pressed or referred to by the appellant in oral submissions, concerned an allegation that the Tribunal had failed to consider whether the appellant had committed political offences against representatives of the supreme leader in Iran, and on this basis it was said the Tribunal erred in not finding there was a real chance that as a result the appellant might suffer persecution for a Convention reason. The reasons for decision of the Tribunal Member indicate that this incident was raised and referred to on a number of occasions and was dealt with in considerable detail. Accordingly, there is no substance in this second matter raised in the grounds of appeal.

12 I am not persuaded that there has been any reviewable error made in the present case by either the Tribunal or the primary judge. Accordingly, it is not necessary to consider the application of s 474 of the Migration Act 1958 (Cth) which was referred to in the submissions of the respondent. The appeal must be dismissed with costs.

HELY J:

13 I agree that the appeal must be dismissed for the reasons given by the other members of the Court.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Tamberlin & Hely JJ.

Associate:

Dated: 9 September 2002

	The appellant appeared in person
Counsel for the Respondent:	Ms L B Price
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 August 2002
Date of Judgment:	23 August 2002