SZGBT v Minister for Immigration & Citizenship

[2007] FCA 565

FEDERAL COURT OF AUSTRALIA

SZGBT v Minister for Immigration & Citizenship [2007] FCA 565

MIGRATION – protection visa – no requirement for repeated or supplementary hearings – no jurisdictional error

Migration Act 1958 (Cth) s 422B, s 424, s 424A, s 424B, s 424C, s 425

Ex parte Applicant M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597
Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212

SZGBT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2032 OF 2006

BUCHANAN  J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2032 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGBT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN  J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.The appeal is dismissed.

3.The appellant is to pay the first respondent’s costs as agreed or taxed excluding any costs relating to proceedings before Spender J on 28 February 2007.

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 2032 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGBT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN  J
DATE:	30 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia in June 2004 using a Taiwanese passport.  He applied for a protection (class XA) visa on 2 August 2004.  On 12 August 2004 a delegate of the first respondent refused his application.  On 14 September 2004 he applied to the Refugee Review Tribunal (‘the RRT’) for a review of the delegate’s decision.  The RRT handed down a decision on 23 March 2005 affirming the delegate’s decision to refuse a protection visa.

2. The appellant then sought judicial review of the decision of the RRT in the Federal Magistrates Court by application filed on 14 April 2005 (an amended application was filed on 24 June 2005).  By judgment delivered on 28 September 2006 Raphael FM dismissed the application for judicial review.

3. An appeal to this Court from the judgment of Raphael FM was filed on 18 October 2006.  The notice of appeal contains the following grounds of appeal:

   ‘GROUNDS

   1.The learned Federal Court of Australia erred in law.

   2.The learned Federal Court of Australia was wrong in finding that the Refugee Review Tribunal (“the Tribunal”) acted properly in its findings.

   Particulars:

   1.The learned Federal Court of Australia failed to consider that the Tribunal did not comply with its obligation under s424A(1) of the Act while the Tribunal assessed my review application;

   2.The Learned Federal Court of Australia failed to consider that the Tribunal did not company [sic] with its obligation under s 425 of the Act;

   3.The Learned Federal Court of Australia, particularly, failed to consider the fact that the Tribunal refused to provide me a copy of recording tape for the Tribunal’s hearing; and the Tribunal gave no evidence in support of its finding that my evidences at the Tribunal’s hearing was inconsistent;

   4.The Learned Federal Court of Australia failed to consider that the Tribunal did not consider my claims, properly and fairly.’

   (the references to the Federal Court of Australia should be read obviously as the Federal Magistrates Court)

4. In evidence before the RRT the appellant, although he entered Australia on a Taiwanese passport under one name, claimed to be a person of a different name born in the People’s Republic of China.  He said that he had left China two days before his arrival in Australia.  However, records in the Department of Immigration showed that the passport used to enter Australia was previously used to enter Australia earlier in the same month and then depart for Fiji.  It was from Fiji that the appellant had travelled to Brisbane at the time of the last entry.

5. It would appear from the decision of the RRT that the appellant was questioned closely about information he had provided in support of his visa application and about inconsistencies which emerged between that material and information he gave orally to the RRT at the hearing.

6. After the hearing, on 7 December 2004 the RRT wrote to the appellant in accordance with s 424A of the Migration Act 1958 (Cth) (‘the Act’) and drew his attention to a number of the discrepancies which had arisen in the hearing between information provided at that time to the RRT and information provided in support of his original application for a protection visa. His comments were invited.

7. The appellant responded by letter dated 30 December 2004.  In his letter of response, the appellant said he could not remember what he ‘had said exactly during the hearing’ and that he did not have a copy of the hearing tape.  He added: ‘I sincerely hope that the Tribunal could kindly send me the copy of the record tapes as soon as possible’, but there was no suggestion that his response was contingent upon receiving them.

8. The RRT observed, in relation to this response by the appellant:

   ‘The Applicant is advised by a registered migration agent who would be aware that he could have obtained a copy of the tape at any time after the hearing and certainly in ample time to allow him to refresh his memory if he wished to do so before responding to the Tribunal’s s 424A letter dated 7 December 2004’.

9. The grounds of appeal which I earlier set out assert that the RRT refused to provide a copy of the recording tape.  That allegation is not supported by the terms of the RRT decision or by the appellant’s own letter and there appears no other material to sustain it.  His written comments were able to be treated by the RRT as directly responsive to its letter of 7 December 2004.

10. In its findings the RRT said the following:

    ‘I have set out the Applicant’s evidence at the hearing before me at some length because I consider it demonstrates the extent to which he contradicted himself at the hearing.  The Applicant says that he was nervous but I consider that the explanation for this is that the evidence set out in the statutory declaration accompanying his original application is not true.’

11. The RRT went on to state in detailed terms that it did not accept the various individual and overall ingredients of the appellant’s claims.  As a result it was not satisfied that he had a well founded fear of being persecuted for a Convention reason if he returned to the People’s Republic of China.

12. In the earlier part of the RRT decision, which discussed the legislative framework against which the appellant’s application for review was required to be assessed, the RRT set out in a balanced way the matters which required attention and about which it needed to be satisfied.  That discussion was supported by reference to decisions of this Court and the High Court.  No apparent error arises from it and none has been suggested.

13. Raphael FM remarked, in his judgment, upon the inconsistencies between the evidence given to the RRT by the appellant and the material in his original application.  He then said:

    ‘It has not been suggested to me by the applicant that there were any findings by the Tribunal that were not in regard to matters that the Tribunal had raised in the s.424A letter.  In other words, it has not been suggested that the s.424A letter did not cover all the matters of concern which became the reasons or part of the reasons for the Tribunal’s decision.’

14. No suggestion to the contrary has been made on the present appeal.

15. One further matter should be mentioned. Particular 2 of the grounds of appeal earlier set out alleged a failure to comply with s 425 of the Act. The submissions made orally by the appellant in the appeal did not address this issue. No written submissions were filed by him.

16. Mr Bevan, who appeared for the first respondent however very fairly brought the matter to my attention in his oral submissions.  He also pointed out that the amended application for judicial review before the Federal Magistrates Court contained the following particular:

    ‘It is, apparently, that there are, based on its decision, significant misunderstandings between the Tribunal and me in relation to the evidences specified in my statement signed on 30 December 2004, which was after the hearing. If it is the case, I believe that the Tribunal, according to Section 424A or Section 425 of the Act, should-:

    -Give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information, in relation to my statement of 30 December 2004, that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and me to comment on it; or

    -At least arrange another hearing for me so that I could have a chance to give further evidences and particularly to provide my argument against some issues raised in my statement of 30 December 2004.

    Unfortunately, the Tribunal failed to do so.’

17. Raphael FM, in his judgment of 28 September 2006 rejected the suggestion that s 424A obliged a further round of correspondence between the RRT and the appellant but he did not refer to the obligations which arise under s 425.

18. Section 425 of the Act provides:

    ‘(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.’

19. The only matter of possible relevance to the present appeal arises from s 425(2)(c) and, in particular, from the reference to s 424C(2). Section 424C provides:

    ‘(1)     If a person:

    (a)is invited under section 424 to give additional information; and

    (b)does not give the information before the time for giving it has passed;

    the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

    (2)      If the applicant:

    (a)       is invited under section 424A to comment on information; and

    (b)does not give the comments before the time for giving them has passed;

    The Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.’

20. The appellant was invited under s 424A to comment on information and did so. The question which arises is whether, in those circumstances, an inference arises from s 425(1), when, considered with s 425(2)(c) and s 424C(2), that the RRT must have invited him to a further hearing.

21. There are a number of reasons why it should not be concluded that a further obligation to invite the applicant to another hearing arose under s 425.

22. First, s 424C says nothing directly about whether a hearing should, or need not, take place. It addresses the question whether the RRT need take any further action to seek information or comments. Dispensation with the requirement for a hearing is both permitted and directed by s 425, not by s 424C.

23. Secondly, there is nothing in s 424A which restricts its operation to information arising at a hearing. Under s 424 the RRT may invite information from an applicant before a hearing. Similarly, the RRT might bring potential information, which might play a part in its decision, to the attention of an applicant pursuant to s 424A before a hearing had taken place. Accordingly, s 425(2)(c), in combination with s 424C(2), has useful work to do if a hearing has not occurred and need not be construed to suggest the need for a further hearing where one has taken place.

24. Thirdly, s 424B provides what is to happen if an applicant is invited under s 424A to comment on information provided by the RRT. Section 424B provides, relevantly:

    ‘(1)     If a person is:

    (a)invited under section 424 to give additional information; or

    (b)invited under section 424A to comment on information;

    the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

    (2)If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

    (3)If the invitation is to give information or comments at an interview, the interview is to take place:

    (a)at the place specified in the invitation; and

    (b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.’

25. Section 425 need not be construed as intended to provide the only mechanism whereby the information or comments might be advanced or discussed. Section 425 is directed at a wider, and more general, purpose. It is clearly intended, as the cases show, to provide a guarantee of an oral hearing unless a matter may be decided in an applicant’s favour without a hearing or if information or comments sought have not been provided. However, it does not guarantee or require repeated or supplementary hearings.

26. It has been held authoritatively that a further hearing is not required (see Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 (‘Win’) at [24] – [29]). Win was followed by Ryan J in Ex parte Applicant M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 at [61], [64] – [65]. I consider I should follow the same approach to the issue of construction in the present case.

27. No question of natural justice can arise in the present case because s 422B makes the provisions of Division 4 of Part 7 of the Act (in which ss 424, 424A, 424B, 424C and 425, amongst others, appear) ‘an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’.

28. It follows that no jurisdictional error was committed by the RRT by failing to invite the appellant to a further hearing. This was not a failure to follow the requirements of s 425 of the Act.

29. In light of the matters I have referred to, and the careful way in which the RRT appeared to approach its task, I can see no substance in any of the matters raised in the appeal to this Court.  I see no jurisdictional error in the decision of the RRT and no error in the judgment of Raphael FM that the application for judicial review before the Federal Magistrates Court should be dismissed.

30. Accordingly the present appeal must be dismissed.  It is appropriate to dismiss it with costs but Mr Bevan drew my attention to the fact that on a previous occasion Spender J ordered that no order for costs should be made against the appellant with respect to proceedings before his Honour on 28 February 2007.  Accordingly, I shall order that the appellant pay the first respondent’s costs of the appeal as agreed or taxed excluding any costs relating to proceedings before Spender J on 28 February 2007.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan .

Associate:

Dated:       30 April 2007

The Applicant was self represented :
Counsel for the Respondent:	Mr H. P. T. Bevan
Solicitor for the Respondent:	Ms A Nesbitt of Sparke Helmore
Date of Hearing:	13 April 2007
Date of Judgment:	30 April 2007