SZIHY v Minister for Immigration & Citizenship

[2007] FCA 281

FEDERAL COURT OF AUSTRALIA

SZIHY v Minister for Immigration & Citizenship [2007] FCA 281

Migration Act 1958 (Cth) - ss 424A and 425

SZIHY v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

NSD2169 OF 2006

EMMETT J

14 FEBRUARY 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2169 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	14 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister for Immigration and Citizenship.

2.The appeal be dismissed.

3.The Applicant pay the Minister’s costs.

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	NSD2169 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	14 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an appeal from orders of the Federal Magistrates Court made on 20 October 2006.  When the matter was called on for hearing this morning there was no appearance for the appellant.  I have evidence that the appellant was notified of the appointment for the hearing by both the Court and the first respondent, the Minister for Immigration and Citizenship (the Minister).  The Minister asks that I dismiss the appeal for want of appearance.  However, I prefer to say something about the merits of the appeal.

2. The appellant claims to be a citizen of the Peoples Republic of China.  He arrived in Australia on 19 July 2005.  On 19 August 2005, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (the Act). On 31 August 2005, a delegate of the Minister refused to grant a protection visa, and on 28 September 2005, the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision. On 20 December 2005, the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 12 January 2006.

3. The appellant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  An amended application was filed on 17 May 2006.   The grounds of the application as dealt with by the Federal Magistrates Court were that there was an error of law in the Tribunal’s decision constituting jurisdictional error, and that there was procedural error in the Tribunal’s decision constituting an absence of natural justice.  The particulars were as follows:

   “(1)I do not think that my review application has been considered, properly and fairly, by the Tribunal.

   (2)The Tribunal misunderstood my claim and made a mistake in relation to an important finding of fact.

   (3)The Tribunal failed to comply with its obligations under section 424A(1) of the Act.

   (4)The Tribunal failed to comply with its obligations under section 425 of the Act.”

4. In the notice of appeal to this Court filed on 3 November 2006, the grounds of appeal are that the learned Federal Magistrate erred in law and was wrong in finding that the Tribunal acted properly in making its finding.  The particulars of the grounds are as follows:

   “(1)The Federal Magistrates Court failed to consider that the Tribunal had failed to comply with its obligations under section 424A(1) of the Act.

   (2)The Federal Magistrates Court failed to consider that the Tribunal had failed to comply with its obligations under section 425 of the Act in that the Tribunal failed to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

5. The Federal Magistrates Court dealt with all grounds raised by the amended application. Specifically it dealt with the grounds based on ss 424A and 425. The notice of appeal does not particularise any information that is said to have been part of the reason for the Tribunal’s decision, particulars of which were not given to the applicant. In any event, the primary judge correctly observed that s 424A does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member.

6. The one matter that was of concern to the primary judge was the Tribunal’s reference to information consisting of an address given to the Tribunal by Professor David Goodman of the Institute for International Studies at the University of Technology in Sydney.  His Honour observed that that information was information from an external source, albeit not information in the public domain. 

7. His Honour considered there was no difficulty with the Tribunal taking such information into account, since the Tribunal has the power to get any information that it considers relevant under s 424. The information was not specifically about the appellant and therefore, it fell within the exclusion provided for in s 424A(3)(a). His Honour concluded, therefore, that there was no breach of s 424A. In any event, his Honour concluded that the information did not form part of the reasons for the Tribunal member’s decision. The information in question concerned the extent to which false documentation is particularly easy to obtain in China.

8. The Tribunal was satisfied that the appellant is a national of the Peoples Republic of China.  However, the appellant had claimed that he obtained a passport in a name other than his own in order to be able to leave China.  The Tribunal was not able to establish independently which of several documents represented the appellant’s true name and was, therefore, left with some doubt concerning his true identity.  That doubt, however, had no bearing on the manner in which the Tribunal dealt with the appellant’s claims.  It only went to the Tribunal’s finding that the appellant obtained a passport in another person’s name; he did so because that passport contained an Australian visa that he might not otherwise have been able to obtain in his own name, but it was not relevant to the appellant’s fear of persecution for a Convention reason.

9. His Honour observed that the issue of identity was considered by the Tribunal after it had already determined that the appellant did not have a well-founded fear of being persecuted if he returned to China. It was inessential to the Tribunal’s reasoning supporting its finding that the appellant did not have a well-founded fear of persecution. On that basis, his Honour concluded that the information was not part of the reason for the Tribunal’s decision and the assertion of a breach of s 424A was not made out.

10. In relation to the ground based on s 425, the primary judge recorded the submission as follows:

    “In my case, although the Tribunal indeed invited me to appear before the Tribunal, but:

    (a)      the Tribunal failed to give me a genuine chance to give evidence in support of my claims, because I have strictly been restricted by the Tribunal only to answer its questions simply and shortly;

    (b)      the Tribunal failed to give me a genuine chance to present arguments relating to the issues arising in relation to the decision under review, because the Tribunal failed to inform me and failed to ensure me to understand what the issues are in relation to my review application during the Tribunal’s hearing.”

11. However, as his Honour observed, there was no transcript in evidence and a complaint that the appellant was not given the opportunity to say what he wanted to say cannot be established without such evidence.  The appellant did not outline to the Federal Magistrates Court any matter that he claimed he had been unable to put forward to the Tribunal and provided no evidence that the hearing before the Tribunal was truncated or that he was in any way prevented from giving his evidence. 

12. The primary judge also dealt with the suggestion that an applicant has a right under section 425 “to present arguments relating to the issues arising in relation to the decision under review”. His Honour considered that any such a notion, that there is a right of reply against a Tribunal’s findings, is a misconception. Section 425 does not contain any right of reply and the Tribunal is not required to provide details, either by way of a running commentary or otherwise, on its determinations or thought processes. His Honour concluded there was no breach of s 425.

13. Those appear to be the contentions intended to be raised by the notice of appeal.  There was, in my view, no error on the part of the Federal Magistrates Court in relation to those matters.  It follows that the appeal has no merit and should be dismissed with costs. 

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

Associate:

Dated:        6 March 2007

The Appellant: did not appear
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 February 2007
Date of Judgment:	14 February 2007