SZNBE v Minister for Immigration and Citizenship [2009] FCA 1198

FEDERAL COURT OF AUSTRALIA

SZNBE v Minister for Immigration and Citizenship [2009] FCA 1198

SZNBE v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 453 of 2009

MCKERRACHER J

23 october 2009

PERTH (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 453 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNBE

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MCKERRACHER J

DATE OF ORDER: 23 october 2009

WHERE MADE: PERTH (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant is to pay the first respondent's costs of the appeal, to be taxed if not agreed. 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

GENERAL DIVISION NSD 453 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNBE

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MCKERRACHER J

DATE: 23 october 2009

PLACE: PERTH (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 The appellant arrived in Australia with a visitor's visa on 13 April 2008. He had travelled from Beijing on a passport issued in his own name. He is a citizen of China. 2 On 17 April 2008 he sought a protection visa from the Department of Immigration and Citizenship (the Department). It was rejected on 14 July 2008. On 1 August 2008 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision of the Department delegate not to grant a protection visa. 3 The appellant appealed to the Federal Magistrates Court. This is an appeal from the judgment of a Federal Magistrate delivered on 8 May 2009 (SZNBE v Minister for Immigration & Anor [2009] FMCA 437). Her Honour dismissed an application for judicial review of the decision of the Tribunal handed down on 12 November 2008. 4 The appeal turns on the construction to be given to s 424A of the Migration Act 1958 (Cth) (the Act) which provides as follows: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non disclosable information. 5 Section 424AA of the Act provides as follows: 424AAInformation and invitation given orally by Tribunal while applicant appearing If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so—the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 6 Section 425 of the Act provides: 425 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.