SZMZQ v Minister for Immigration and Citizenship [2009] FCA 409

FEDERAL COURT OF AUSTRALIA

SZMZQ v Minister for Immigration and Citizenship [2009] FCA 409

Migration Act 1958 (Cth) SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 referred to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 referred to SZMZQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 269 of 2009

JACOBSON J

22 APRIL 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 269 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMZQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JACOBSON J

DATE OF ORDER: 22 APRIL 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The applicant pay the first respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 269 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMZQ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JACOBSON J

DATE: 22 APRIL 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders of Federal Magistrate Cameron made on 13 March 2009 dismissing an application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 2 The only ground of review which was stated in the application in the Federal Magistrates Court was set out in full in [11] of the reasons of the Federal Magistrate. The Federal Magistrate said at [12] of his reasons that the ground as stated was "meaningless" and that it did not give rise to any allegation of jurisdictional error on the part of the Tribunal. The Federal Magistrate went on to say that in any event his own consideration of the Tribunal's decision did not disclose any jurisdictional error. 3 The appellant appeared in person this morning. He was assisted by a Mandarin interpreter. 4 The notice of appeal is in very general terms and the grounds stated do not disclose any error on the part of the Federal Magistrate. 5 Nevertheless, the matter contains one quite unusual feature. This is that there was a very substantial delay between the date of the decision of the delegate and the date of the review by the Tribunal. This is explained in [1] to [5] of the Tribunal's decision. 6 Briefly, the appellant arrived in Australia in September 1997. He applied for a protection visa in July 1999 and the delegate refused to grant the visa on 22 November 1999. However, at the time, the Department failed to properly notify the appellant of the delegate's decision. It made a further two invalid attempts at notification, one in October 2004 and another in October 2008. 7 Notwithstanding the invalidity of the notifications, the Tribunal went on at [5] to find that the appellant had made a valid application for review of the delegate's decision and it went on to consider that application for review. 8 At this morning's hearing the appellant told me that he had forgotten the details of his claim for protection by reason of the delay which had occurred. I therefore raised with Mr Reynolds of counsel, who appeared for the Minister, the question of whether this gave rise to any possible breach of the obligations of procedural fairness as contained in the relevant part of the Migration Act 1958 (Cth). 9 The relevant provision appears to be s 425 to which Mr Reynolds made reference. I accept Mr Reynolds' submission that notwithstanding the delay, there was no breach of s 425 or of any other obligation of procedural fairness which is to be found in the provisions of the Migration Act. Whilst it may be accepted that a breach of procedural fairness may occur if there were a considerable delay between the date of a Tribunal hearing and the date on which the Tribunal purported to make adverse credibility findings, that is not what occurred in this case. 10 This is borne out by the relevant chronology, to which I will refer shortly, and also by a consideration of the reasons of the Tribunal. The Tribunal invited the appellant to appear at a hearing in order to give oral evidence. The invitation was dated 28 October 2008 and the hearing was arranged for 11 November 2008. The Tribunal hearing record discloses that the appellant attended the hearing and the Tribunal's reasons set out the relevant record of what took place at the hearing. 11 It should be noted that although the appellant's legal representative was not present at the oral hearing, he was represented by a well-known firm of migration lawyers who provided written submissions to the Tribunal. The lawyers forwarded a full statement to the Tribunal on 28 October 2008, and they sent an extract of the statement on 31 October 2008 accompanied by full written submissions in support of the appellant's claim that Australia owes him protection obligations. 12 The appellant claimed to have a well-founded fear of persecution on the grounds of religion and political opinion. In particular, he said that he was afraid of harm from the Chinese authorities because of his assistance to and association with a preacher who he had helped by taking the preacher to eight or nine different churches at which the preacher was said to have preached during 1995, and also by handing out religious papers and books for the preacher. He also claimed that he was persecuted for illegal religious activities and because he obstructed and confronted police. 13 In his written statement, the appellant identified the preacher by name and said that he was a Christian preacher. At the oral hearing the Tribunal raised with the appellant the Tribunal member's concerns about the appellant's evidence. The Tribunal asked him the name of the preacher and the religion that the preacher practised. The appellant was unable to remember the preacher's name or his religion. The Tribunal also raised a number of other matters of concern with him. 14 The Tribunal's findings at [43] to [45] show that the Tribunal set out its reasons for the adverse credibility findings which it reached. These paragraphs disclose that the reasons which the Tribunal reached corresponded with the concerns that it raised with the appellant in the course of the oral hearing. Thus, in short, the reasons for the adverse credibility finding of the Tribunal were based upon inconsistencies between his oral evidence given on 11 November 2008 and the statement which he had supplied to the Tribunal some two to three weeks earlier. 15 Thus, it cannot be said that the delay between the date of the delegate's decision and the date upon which the Tribunal heard and determined the matter affected the Tribunal's reasoning processes. It seems to me therefore that the Tribunal complied with its obligations under s 425 of the Act and that there was no denial of procedural fairness. As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]: What is required by procedural fairness is a fair hearing, not a fair outcome. … The relevant question is about the Tribunal's processes, not its actual decision. 16 The High Court's observations seem to me to be apt in the present case. Moreover, I do not see that the delay between the appellant's date of arrival in Australia and the date upon which the Tribunal dealt with the matter can be said to give rise to any ground of review. The appellant complained that he had forgotten the relevant facts which occurred in 1995, but as the High Court observed in SZBEL at [40]: [I]t is for the applicant for a protection visa to establish the claims that are made out. 17 This is not a case in which the appellant was affected by any disparity between the issues considered to be dispositive by the delegate and the issues which arose in relation to the decision under review. Here it appears that the appellant's claim before the delegate had a different basis to the claim which he put before the tribunal in the written statement to which I have referred above. 18 Finally, it cannot be said that there was any breach of s 424A of the Act because the information upon which the Tribunal relied was not "information" within the meaning of section 424A(1): see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. 19 It follows that the appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobsson.