SZSHV v Minister for Immigration and Border Protection [2014] FCA 253

Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia Concerning Refusal of a Protection Visa and Refugee Review Tribunal Decision / Appeal; Application for Leave to Amend the Notice of Appeal

Legal Issues

1. 1 ["Whether the Tribunal applied the wrong test under s 91R(3) of the Migration Act 1958 (Cth) by failing to consider the appellant's conduct in Australia relating to his claimed Christian practice." 'Whether the Tribunal imposed an onerous standard of proof on the appellant in inquisitorial merits review proceedings.' 'Whether adverse credibility findings made by the Tribunal disclosed jurisdictional error.' 'Whether leave should be granted to amend the Notice of Appeal to add a ground alleging reasonable apprehension of bias.' "Whether the appeal was an impermissible attempt to obtain merits review of the Tribunal's factual findings."]

Ratio Decidendi

The appeal failed because the Tribunal's reasons showed that it considered the appellant's claims and conduct in Australia, including church attendance and related evidence, and did not apply the wrong test under s 91R(3) or an onerous standard of proof. The Tribunal's questioning and its treatment of possible facial recognition evidence did not disclose procedural unfairness, bias, or jurisdictional error. The adverse credibility findings were open to the Tribunal on the material before it. The proposed new bias ground was not raised below, was not adequately explained, and lacked substance; refusing leave caused no prejudice because the appeal in substance sought impermissible merits...

Court Disposition

Application for leave to amend the Notice of Appeal refused; Notice of Appeal dismissed; appellant ordered to pay the costs of the First Respondent.

Orders

• ['Leave to amend the Notice of Appeal is refused.' 'The Notice of Appeal is dismissed.' 'The Appellant is to pay the costs of the First Respondent.']