NAJJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 34 (4 March 2003)

Last Updated: 4 April 2003

FEDERAL COURT OF AUSTRALIA

NAJJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 34

NAJJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1011 OF 2002

LINDGREN, STONE AND DOWNES JJ

4 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1011 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAJJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN, STONE AND DOWNES JJ
DATE OF ORDER:	4 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed; and

2. The appellant pay the 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	N 1011 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAJJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN, STONE AND DOWNES JJ
DATE:	4 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from the judgment of a judge of this Court given on 6 September 2002. His Honour dismissed the application to set aside a decision of the Refugee Review Tribunal (`Tribunal') refusing a protection visa to the appellant, his wife and the elder of their two children.

2 The appellant arrived in Australia on 23 December 1999 with his wife and the elder of his two children. The second child was born in Australia on 10 April 2000. The parents and the elder child lodged an application for a protection (Class XA) visa on 21 January 2000. Their application was refused by a delegate of the respondent (`Minister') on 21 March 2000. On 20 June 2000 an application was lodged on behalf of the second child. It was similarly refused. The applicants for review before the Tribunal were the appellant, his wife and their two children.

3 The application of the wife and the two children depended on claims made by the appellant. The appellant, a citizen of India, claimed to have been involved in various political groups and activities that, among other things, were in favour of supporting the Sri Lankan Tamil people in their conflict with the Sri Lankan government. The appellant claimed that he was arrested and tortured in prison and that there are still cases against him pending in India. He claims that if he returns to that country they would result in his arrest and torture.

4 It is not necessary here to canvass in detail the appellant's claims and the consideration which the delegate and the Tribunal gave to those claims. It is sufficient to note that the delegate and the Tribunal both noted inconsistencies in the appellant's evidence. His claim to be a prominent and well-known dissident was seen as inconsistent with his own evidence that he was repeatedly released, allowed to post bail and issued with a replacement passport in 1996. In addition to these inconsistencies, the Tribunal also found that the appellant was not well informed about the dissident groups with which he claimed to have been involved. The Tribunal declared that it was satisfied that the appellant was not `a witness of credit, at least in relation to his key claims'. The Tribunal described the appellant's oral evidence as `highly confused and self-contradictory as well as inconsistent with independent country information'.

5 Before his Honour the only ground taken by the applicant for contending the Tribunal's decision should be set aside was bias. We agree with his Honour that actual bias is a basis on which the Court has jurisdiction to interfere with a Tribunal's decision.

6 In considering the appellant's claim that the Tribunal was biased the primary judge stated that the appellant did not refer to anything in the conduct of his case that might indicate bias but gave six suggested `examples of bias' extracted from the Tribunal's reasons for decision. His Honour did not accept that these examples showed bias. He stated that it was apparent to him that the Tribunal had carefully considered each of the six matters raised by the appellant in order to reach an appropriate finding of fact and that the Tribunal had given reasons for the conclusion it reached. His Honour was of the view it was open to the Tribunal to reach this conclusion.

7 The primary judge noted that during the course of the oral discussion at the hearing the appellant raised a matter that was not referred to in his written submissions. This concerned the Tribunal member's questions to him and the fact that the Tribunal member went carefully through his passport and his wife's passport and asked questions about the entries in them. On this issue his Honour stated:

`I do not think this indicates bias. The system of Tribunal review is one in which members are required to satisfy themselves about the validity of a person's claim to be [a] refugee. There is no representative of the Department of Immigration to put a case against the person being a refugee. The members have to work out the situation for themselves. They have the benefit of seeing the Department's file, including the decision of the delegate of the Minister who made the first decision to refuse a protection visa. They also have access to information about circumstances in the country concerned in the claim. In the present case, it seems, there was a considerable amount of country information and the Tribunal member looked carefully at that information.

An applicant for refugee status is entitled to an oral hearing before the Tribunal in order to put such matters as may be helpful to persuading the Tribunal of the correctness of the claim for refugee status. It is the duty of Tribunal members to subject those matters to careful scrutiny. If a Tribunal member is doubtful about the correctness of a claim, then it is helpful for the Tribunal member to indicate that fact, and thereby alert the applicant to the need to put the doubt to rest. So bias is not established by the mere fact that the Tribunal member asked questions of the applicant, even questions containing an implication that the matter being raised is a problem for the applicant.

The critical matter, in relation to bias, is whether or not the Tribunal member kept an open mind about the case, in the sense of being prepared to come to a conclusion in favour of the applicant if the evidence is sufficiently strong and the arguments sufficiently persuasive. The fact that a Tribunal member closely interrogated an applicant is not enough to demonstrate that the member was unprepared to deal with the case on its merits.

As to the passports, I see nothing sinister in that at all. The passports were important documents. They were accepted as authentic. Therefore they provided reliable evidence as to entrances to, and departures from, various countries by the applicant and his wife. I well understand why the Tribunal member wished to use this material in order to get a reliable picture of the movements of the applicant and his wife.'

8 The appellant contends that the primary judge erred in overlooking the bias of the Tribunal member. The appellant's submissions quote extensive passages from Plaintiff S 157/2000 v Commonwealth of Australia [2003] HCA 2 (`S 157') and reiterate the six examples allegedly indicative of bias that were put before the primary judge. Having considered those examples, his Honour concluded that there was no basis for imputing bias to the Tribunal. We agree with that conclusion.

9 However, in his written submissions and in argument before us today, the appellant, in reliance on the decision in S 157, raised a number of grounds of appeal that were not mentioned in the notice of appeal. They are that the Tribunal had identified a wrong issue, asked itself a wrong question, ignored relevant material, relied on irrelevant material, made erroneous findings of fact and reached a mistaken conclusion. There was very little in the appellant's submissions to substantiate these grounds. What was submitted amounted to taking issue with the Tribunal's findings of fact. As the appellant acknowledged before us today, this Court is not invested with the jurisdiction to review the merits of the appellant's application and has no jurisdiction to revisit the Tribunal's findings of fact.

10 For these reasons 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 of the Court

Associate:

Dated: 7 March 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 March 2003
Date of Judgment:	4 March 2003