SZGZN v Minister for Immigration and Citizenship

[2007] FCA 170

FEDERAL COURT OF AUSTRALIA

SZGZN v Minister for Immigration and Citizenship [2007] FCA 170

SZGZN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2119 OF 2006

ALLSOP J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2119 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGZN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

2.The appeal be dismissed.

3.The appellant pay the costs of the respondents.

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 2119 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGZN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) handed down on 6 March 2006.

2. The amended application which went before the Federal Magistrates Court had one ground of asserted jurisdictional error which was in the following terms:

   “The Tribunal misunderstood the nature of its jurisdiction and failed to give me notice in writing of the particulars of information on Mongolia which the Tribunal considered to be the reason, or part of the reason for affirming the decision under review.”

3. The appellant is a Mongolian national who arrived in Australia on 12 January 2005.  Shortly thereafter she lodged an application for a protection visa on the ground that she was a Mormon and feared persecution on the grounds of religion.

4. The Tribunal dealt with the appellant’s claims at a hearing after it had sent a letter of the kind contemplated by s 424A of the Migration Act 1958 (Cth). The letter was in the following terms:

   “The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

   The information is as follows:

   Country information indicates that the Mongolian Constitution provides for freedom of conscience and religion, and the government generally respected these provisions in practice.  Further, the rule of law operates in Mongolia, with an independent judiciary, there is a National Human Rights Commission and a number of Human Rights groups operate in the country without restriction.

   Why the information is relevant:

   The information indicates that there is freedom of religion, and that your right to practise Christianity is respected.  Further, those who acted in a criminal way towards you could be arrested and brought before the courts.  That is, there is ongoing protection for you.

   You are invited to comment on this information.  Your comments are to be in writing and in English. They are to be received at the Tribunal by 30 December 2005.”

5. After considering the claims of the appellant as to her being a Mormon and after considering country information the Tribunal came to the view that the appellant’s claims as to religious adherence were manufactured and were an attempt to substantiate a ground to remain in Australia.

6. The Federal Magistrate expressed the view that the findings on credit made by the Tribunal were open to it and were not apparently affected by any error in the approach. It also disagreed with the assertion that the letter under s 424A was inadequate. It first pointed out, correctly, that information about Mongolia taken from the country information was not required to be provided to the appellant in a letter under s 424A: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and VJAF vMinister for Immigration and Multicultural and Ethnic Affairs [2005] FCAFC 178.

7. In any event, the Federal Magistrate found that the s 424A letter to which I have set out above complied with s 424A.

8. The notice of appeal states one ground as follows:

   “The applicant has not been given certain information pursuant to s 424(A) [sic] of the Migration Act. The Tribunal failed to provide the applicant opportunity to comment on information that the Tribunal considered would be the reason for affirming the decision not to grant a protection visa.”

9. There was no particularisation of this information in the notice of appeal.

10. The appellant put no written submissions before the Court.  When the matter was called on for hearing the appellant had the assistance of an interpreter and stated that she did not want to put any oral submissions.

11. The reasons of the Federal Magistrate comprehensively deal with the ground of review raised there which is essentially the ground of review raised on appeal.

12. To the extent that the assertion is that general country information should be placed in a letter under s 424A the decisions of the Full Courts to which I have referred make clear that such a proposition cannot be sustained. There being no other basis for an assertion that s 424A has been breached. There is no alternative but to dismiss the appeal with costs. The orders of the Court are:

    1.The appeal be dismissed.

    2.The appellant pay the costs of the respondents.

13. I should order that the name of the first respondent be amended to Minister for Immigration and Citizenship which is now the correct name of the relevant Minister.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:
Dated:        23 February 2007

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Mr R White
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2007
Date of Judgment:	23 February 2007