FEDERAL COURT OF AUSTRALIA SZMBY v Minister for Immigration and Citizenship [2010] FCA 830 Citation: SZMBY v Minister for Immigration and Citizenship [2010] FCA 830 Appeal from: SZMBY v Minister for Immigration & Anor [2010] FMCA 165 Parties: SZMBY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 492 of 2010 Judge: BROMBERG J Date of judgment: 6 August 2010 Legislation: Migration Act 1958 (Cth), ss 425 & 474 Cases cited: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZMBY v Minister for Immigration and Anor [2010] FMCA 165 Date of hearing: 4 August 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Appellant: Appellant appeared in person assisted by an interpreter Solicitor for the Respondents: DLA Phillips Fox Counsel for the Respondents: Mr D Godwin IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 492 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMBY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 6 AUGUST 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 492 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMBY Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE: 6 august 2010 PLACE: SYDNEY REASONS FOR JUDGMENT introduction 1 The appellant is a citizen of China who arrived in Australia on 31 July 2007. The appellant claims that he was the victim of persecution as a result of his religious practice as a Catholic. He claimed to fear persecution because of his religion should he be required to return to China. 2 The appellant lodged an application for a protection visa. That was refused by a delegate of the first respondent ("the Minister") on 27 August 2007. The appellant then applied to the Refugee Review Tribunal ("the Tribunal"). Having not succeeded in his application before the Tribunal, the appellant then applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. 3 The task of the Federal Magistrates Court in dealing with the judicial proceedings brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 4 The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the learned Federal Magistrate is affected by error. For the reasons which follow, I have determined that the appellant has failed to demonstrate any appellable error in the reasons for judgment of the learned Federal Magistrate. Accordingly, this application will be dismissed. background facts 5 The facts pertaining to the appellant's claim for a protection visa are set out in detail in the reasons for judgment of the learned Federal Magistrate: SZMBY v Minister for Immigration and Anor [2010] FMCA 165. Given the limited ground of appeal upon which the appellant relies in this Court, it is unnecessary to traverse again all of the relevant background facts related to the appellant's claim. the alleged failure of the tribunal to reschedule a new hearing 6 The notice of appeal to this Court dated 5 May 2010 contains one ground as follows: The Federal Magistrate failed to consider the applicant's claim that the RRT decision was affected by jurisdictional error. Particulars: The Tribunal failed to reschedule a new hearing after the applicant claims [sic] his ability to give evidence was affected after knowing his father had cancer. 7 This ground was not agitated before the learned Federal Magistrate in these terms, although the applicant relied on the asserted failure of the Tribunal to "invite [him] to provide evidence of [his] father's illness, which affected [his] capacity to give evidence before the Tribunal". In dealing with and dismissing that ground, the learned Federal Magistrate included in his reasons for judgment his conclusion that the appellant had been given an adequate opportunity by the Tribunal to address such problems as were caused at the Tribunal's hearing by any inability of the appellant to give evidence as a result of the appellant becoming aware that his father had cancer. 8 Given the decision I have reached, it is not necessary that I rule upon the first respondent's contention that the appellant seeks to agitate a new ground and that leave to do so should be refused. 9 As a transcript of the hearing before the Tribunal is not before me, the Tribunal's record in its statement of reasons is the best available evidence of what occurred at the hearing. In relation to the matter of the appellant raising his father's cancer, the Tribunal's reasons state: 69. Invited to tell the Tribunal anything further he wished, he said that two days before the hearing he had heard that his father had been diagnosed with colon cancer. For that reason his oral evidence had been a bit messed up. He considered it had affected his evidence. On this basis the Tribunal suggested that he listen to the recording of the hearing, then either request a further hearing or make a written submission. [The appellant] agreed to this and said he considered it to be a fair arrangement. It was agreed that he would advise the Tribunal by 6 July 2009 if he wished to give further oral evidence, and would otherwise provide a written submission. 10 The appellant did in fact respond to the Tribunal's invitation. The response is Annexure A to the affidavit of Katherine Nicole Hooper, affirmed in the Federal Magistrate Court proceedings on 5 November 2009. The Tribunal considered this response in [70]-[74] of its reasons: 70. On 6 July 2009 the Tribunal received a written statement in Chinese, which had been translated by [the appellant's] migration agent. In a covering letter, the agent stated that [the appellant] was willing to give "any further information on the Tribunal's request". No request was made for an opportunity to give further oral evidence. In his statement [the appellant] provided responses to two questions to which he did not consider he had given "correct answers" at the hearing because of his difficulty in concentrating on that day. These were: 71. (a) from August 2006 to July 2007 he had moved to 1512, No. 8 Building Gao Xiang, Rongcheng Town in Fuqing city; 72. (b) on 22 July 2007 the police had come to arrest him when he was attending Mass at his church friend's home. With the help of other members of the church he escaped arrest: 73. He also stated that in 2007 his mother was diagnosed with bladder cancer, in 2008 she was involved in a car accident and in 2009 his father had been diagnosed with cancer. His parents' financial situation had deteriorated because of these problems. He expressed his concern for them. 74. He also reiterated that he was a devout Catholic who attended Mass regularly, and that this was not allowed in China. All the religious activities in which he believed were illegal in China. He claimed that he was on a blacklist in China. 11 The first respondent submitted that the Tribunal's reasons for decision, together with the appellant's response of 6 July 2009, provides evidence that the appellant was in fact given the opportunity to request a further hearing, however, he chose not to make that request. Further, it is submitted that the appellant took the opportunity to inform the Tribunal of what aspects of his evidence to the Tribunal were affected by his emotional state, and he provided what he said was the corrected version of this evidence. These matters were not such as to suggest that a further hearing was necessary, even though not requested. 12 I accept the first respondent's submissions on that issue. 13 Furthermore, in concluding that the appellant's evidence was vague on significant points, the Tribunal took into account that the appellant had been distracted by his father's illness. The Tribunal, however, determined that the distraction did not account for all of the vague and inconsistent evidence the appellant gave, and that was particularly so, given that the appellant gave relatively detailed evidence on certain points from which he later resiled. In the circumstances the Tribunal was required to do no more. The "real and meaningful" opportunity to give evidence and present argument required to be provided to a visa applicant by s 425 of the Migration Act is not nullified by mere failure by an applicant to present his or her case in the best possible light: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [22] per Keane CJ (with whom Emmett J agreed). 14 The appeal will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 6 August 2010