SZDGC v Minister for Immigration and Multicultural Affairs [2006] FCA 1569

FEDERAL COURT OF AUSTRALIA

SZDGC v Minister for Immigration and Multicultural Affairs [2006] FCA 1569 SZDGC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1511 OF 2006

ALLSOP J

17 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1511 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDGC

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: ALLSOP J DATE OF ORDER: 17 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be referred to a Full Court for hearing. 2. Any further directions be made through the Full Court Unit.; 3. The New South Wales District Registrar be directed pursuant to order 80 of the Federal Court Rules to approach the New South Wales Bar Association for assistance in arguing the appeal. 4. Costs today be costs in the appeal. 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 1511 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDGC

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: ALLSOP J

DATE: 17 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter came before me as an appeal from orders of a Federal Magistrate. On preparing for the hearing this morning I not only read the careful reasons of the learned Federal Magistrate, the reasons for decision of the Refugee Review Tribunal and also the submissions of the parties. 2 The appellant below as the applicant had raised arguments under s 424A of the Migration Act 1958 (Cth). No such arguments were raised on appeal. The matters put in the written submissions by the appellant and referred to by her today really direct themselves to the legitimacy and merits of her claim. She is self-represented. I have sought to explain today why it is not the place of this Court nor the Magistrates Court to make decisions about who is telling the truth, rather it is the task of the Magistrates Court and this Court on appeal to ensure the legality of the Tribunal hearing. 3 Most of the complaints put to me today both in writing and orally and put to the Federal Magistrate concern the approach of the Tribunal. It was said below and it was said here that the Tribunal came to the matter with a fixed view as to what the result should be. It was said below and it was said here in writing and orally that the Tribunal so behaved itself in a hearing as to exhibit a form of bias. For reasons which I will explain in a moment it is not necessary to express a final view about these matters. 4 The Federal Magistrate was not persuaded by these arguments and for my part, and looking at the transcript of the Tribunal hearing and the Tribunal's reasons it is difficult to draw any such conclusion. However, in the preparation of this matter I came to appreciate that there may be one real issue not being propounded on appeal, at least, in the submissions of the appellant. The matter can be seen to have been canvassed below, that is arguable. 5 It arises on page 22 of the Tribunal's decision, at page 115 of the appeal book. On this page the Tribunal said the following in its reasons. "The Applicant's claims at the hearing about the 8 January 2002 lack credibility not only due to the lack of plausible outcomes. They also lack credibility because they clash markedly with evidence she provided in writing to DIMIA and RRT about 8 January 2002 being the date on which she and a small handful of like-minded friends met in private to initiate very early discussions on the name, policies and future activities of the "Independent Union". The group therefore could not have been conducting a mass demonstration in public on that day, let alone distributing leaflets as claimed." 6 The earlier written material is contained in a statement to the Department on pages 25-28 of the appeal book and, in particular, paragraph 14 of that statement on page 28. The material provided to the Department in writing is contained in pages 52-55 of the appeal book and, in particular, the fourth bullet point in paragraph 6 on page 44. 7 There is a substantial identity though not complete identity between paragraph 14 of the statutory declaration to the department and the fourth bullet point under paragraph 6 in the statutory declaration to the Tribunal. Mr Mitchell in argument before the Federal Magistrate and in argument before me raised a question as to what might be said to be republication of the material to the Department. This argument, of course, was directed to seeking to have s 424A(3)(b) apply so as to remove possible operation of s 424A(1). 8 In my view how so-called republication works in a context such as this is a matter of some difficulty. If a Tribunal merely picks up the factual content of earlier statements to the Department by question and answer at the hearing or by incorporation into later statements then it may be seen, perhaps, to be uncontroversial if that factual information is used in the reasoning of the Tribunal. For instance, a description of the personal characteristics of an applicant taken from a republished body of information originally given to the department may be the framework around which conclusions as to safe relocation can be made. 9 Where, however, a Tribunal as here draws a contrast between an earlier statement made to the Department and a later statement to the Tribunal. It is not entirely clear to me how s 424A(3)(b) operates. There have been a number of decisions of this court dealing with the issue. There is not by any means complete accord in those decisions. In my view it is an important matter not only for this appellant but in the administration of this body of jurisdiction under the Migration Act 1958. 10 For these reasons I think it is appropriate that this appeal be heard by a Full Court and not a single judge and I propose to remit the matter to the Full Court Unit for hearing in February next year. If either party is of the view that there should be expedition before February an application can be made and I am prepared to hear that as a docket judge. 11 I also think it appropriate that this matter not proceed without a skilled contradictor, therefore, I propose to make an order under order 80 that the Registrar approach the New South Wales Bar Association for the assistance of counsel for the appellant. It may be that upon closer examination the issues are less subtly difficult than I think at the moment. However, my view, at the moment, is that this is an appropriate issue to be argued by Senior Counsel. That is not a reflection at all on Mr Mitchell nor is it directed at the solicitors for the respondent. It is said for the assistance of the Registrar in approaching the Bar Association. 12 For these reasons the order I make are as follows: (1) The appeal be referred to a Full Court for hearing. (2) Any further directions be made through the Full Court Unit. (3) The New South Wales District Registrar be directed pursuant to order 80 of the Federal Court Rules to approach the New South Wales Bar Association for assistance in arguing the appeal. (4) Costs today be costs in the appeal. 13 It should be noted, and I will add this for your benefit, Mr Mitchell, and your solicitors, I gave an opportunity for the Department to provide Mr Mitchell and his instructor with instructions about the course that I propose to take. No doubt because of unavoidable difficulties those instructions were not able to be obtained within about 20 minutes or half an hour. Given the view I took of the matter, I did not ultimately think it was a matter upon which the Department's instructions could be determinative and therefore I did not have the benefit of Mr Mitchell's submissions upon instructions. 14 Those comments are not made by way of criticism of either Mr Mitchell or his solicitor or the Department merely so that people may understand what happened today. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.