SZMRT v Minister for Immigration and Citizenship
[2009] FCA 1258
•6 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZMRT v Minister for Immigration and Citizenship [2009] FCA 1258
MIGRATION – application for a protection visa – no evidence of jurisdictional error – nothing in material to support an allegation of bias – appeal dismissed
Migration Act 1958 (Cth)
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZMRT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 158 of 2009
SPENDER J
6 NOVEMBER 2009
BRISBANE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 158 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMRT
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
6 NOVEMBER 2009
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be dismissed
2.The appellant to pay the costs of the first respondent of and incidental to the appeal, including reserved costs, 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 158 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMRT
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE:
6 NOVEMBER 2009
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an appeal from the judgment of Federal Magistrate Smith of 4 February 2009 in which his Honour dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 July 2008, which affirmed a decision of a delegate of the Minister for Immigration and Citizenship refusing a protection visa application by the appellant.
The delegate interviewed the appellant on 6 March 2008, and on the same day, made a decision to refuse the visa application.
The appellant is a male citizen of China born in 1976. He arrived in Australia on 18 December 2007. On 24 December 2007, he lodged an application for a protection visa, which a delegate of the first respondent refused on 6 March 2008.
On 4 April 2008, the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed that decision on 18 July 2008, the decision being handed down on 29 July 2008.
On 26 August 2008, the appellant sought constitutional writs in respect of the Tribunal to the Federal Magistrates Court. Smith FM dismissed that application on 4 February 2009.
The appellant lodged a Notice of Appeal with this Court on 25 February 2009.
The Tribunal had found that the appellant was not a reliable, credible or truthful witness, and gave reasons for that credibility finding. On the basis of the adverse credibility finding, the Tribunal chose not to give any weight to documents which had been submitted by the appellant.
The Tribunal concluded that the appellant had not been harmed in the past, and would not be in the future.
The grounds of the appeal to the Federal Magistrates Court were, in summary:
1.The Tribunal incorrectly made its decision on the basis of its adverse credibility finding. The Tribunal failed to provide the appellant with a fair opportunity as neither the Department nor the Tribunal have provided the appellant with a copy of the recording of the interview with the delegate. It is possible that there have been incorrect, improper or inaccurate interpretation at the delegate’s interview.
2.The Tribunal failed to consider the appellant’s evidence properly and fairly. The Tribunal’s finding involved a reasonable apprehension of bias. The Tribunal completely ignored the evidence of the appellant.
3.The Tribunal ignored the documentary evidence presented by the appellant and made its finding based on unwarranted assumptions.
In the reasons for judgment of Smith FM, his Honour said at [8]:
The applicant was advised at a first court date before me to consider presenting to the Court further evidence concerning his interviews both by the delegate and the Tribunal, if he maintained grounds of review challenging the adequacy of interpretation at, and the fairness of, those interviews. However, he has not presented any evidence to the Court concerning these, beyond what appears in the Court Book. I have no reason, therefore, to doubt the description of the hearing which is contained in the Tribunal’s statement of reasons.
Smith FM stated, at [11]:
Following the hearing, the Tribunal sent to the applicant’s agent an invitation to comment on three inconsistencies which it had also raised at the hearing, two of which concerned perceived concerns arising from the interview with the delegate. The applicant responded with a statutory declaration. This did not challenge the accuracy of what he was said to have said to the delegate, but sought to reconcile it with his statements to the Tribunal.
At [19], Smith FM said:
… It is suggested, without any particular instances being identified, that it was possible that there had been incorrect, improper or inaccurate interpretation at the delegate’s interview or that there were misunderstandings. It is argued:
It is definitely unfair. Either the Department or the Tribunal should at least create a fair chance for me to verify accuracy of the audio recording about the Departmental interview.
Later, at [23], his Honour said:
… in the present case, I am not persuaded that any unfairness resulted from the Tribunal’s reliance on listening to the audio recording of the delegate’s interview, even assuming that I should accept without verification the applicant’s submission that he did not have access to that recording. The applicant had an opportunity to ask for the recording to enable him to respond to the Tribunal’s invitation for comments, if this was necessary, and neither he nor his agent made such a request. Rather, as I have indicated, they both accepted what was put to them as accurately reflecting what the applicant had said to the delegate. There is no evidence before me that it was not. …
A Notice of Appeal to this Court asserts, in the first ground, that the Federal Magistrate erred in making the finding at [8] of his Honour’s reasons, which I have set out in [10] above.
Of this alleged error, the Notice of Appeal states:
The key issue is that neither the Department nor the Tribunal have provided me any records in relation to my interview with the delegate, such as copy of recording CDs or transcripts for such an interview. As a result, I am unable to present the Court any evidence concerning my interview with the delegate.
(Emphasis added).At the hearing of this appeal on 15 May 2009, the appellant said:
The first point I want to say is that the Federal Magistrates Court made other adverse findings [on] my application and actually is unfair. … I haven’t been provided audio recording of the interview with the department, so how can I provide that audio recording to the Federal Magistrates Court. … the tape recording that I attended the interview with delegate … was not available to me.
Later, he said:
The main reason for the RRT to refuse my application [was] because … I had given different evidence to the delegate and to the tribunal but, in fact, I have provided the same evidence to both delegate and to the tribunal, but I have never been given the opportunity to prove that actually I did provide the same evidence to both the delegate and to the tribunal.
The appellant said from the Bar Table that:
At the end of the interview, I requested the tape, but the department officer finished interview very quickly and just said to me you can go now.
Later, the appellant said:
I did request the tape. Just during the interview I requested the tape.
I said, after hearing from both the appellant and Mr Johnson of counsel for the Minister:
It seems to me that, truly, if in fact the tape shows that there was a request made during, or at the end of the interview, then I may have to hear some further evidence. If, on the other hand, the tape doesn’t support the accusation that was made today … then I will deal with the matter on the basis of the submissions that have been made today.
I then directed that the tape of the departmental interview be produced to the Court within 14 days, and indicated that the appellant could have an opportunity to listen to the tape in the registry. An opportunity was also provided to the parties to make further submissions if they chose by Friday, 26 June 2009.
The tape recording of the interview was produced, and lies in the registry. It was submitted by counsel for the Minister that the tape does not contain any evidence supporting the appellant’s statement to the Court that he requested a copy of the tape at the interview. Counsel for the first respondent indicated in his written submissions that the first respondent had not received anything at all from the appellant since the matter was last before the Court on 15 May 2009. The first respondent maintains the submissions made to the Court orally on that date, and in writing.
Further, it was submitted by the first respondent that there was no evidence before the Federal Magistrate that the appellant did make such a request to the delegate for a copy of the tape, and if the tape had been in evidence before the Federal Magistrate, it would not have proved that any such request was made.
Importantly, it was submitted that there was no indication whether the appellant presses, in the light of the contents of the tape, his contention to this Court that he requested the tape at the end of the interview.
The Tribunal’s decision was based on its finding adverse to the appellant concerning his credibility. Smith FM had rejected arguments directed at impugning the findings which the Tribunal had made.
Smith FM also rejected the claim that the Tribunal had failed to consider the appellant’s evidence fairly and properly. His Honour rejected the contention of bias, finding that the Tribunal’s reasoning was “rational”, “open to it on the evidence”, and showing “a genuine and proper attempt to perform the statutory duty of review given to the Tribunal”.
The third ground to the Federal Magistrates Court was directed at the Tribunal’s treatment of the appellant’s documents. Smith FM found that the Tribunal had been aware of the documents, having listed and summarised their contents. His Honour, in his reasons, quoted from Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, at [49]:
… It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.
Smith FM concluded that there was no jurisdictional error revealed by the appellant to the Federal Magistrates Court, and that he had not been able to identify any error in the way the Tribunal dealt with the review before it.
In the appeal to this Court, the claim that the appellant had been denied access to the tape of the interview with the delegate of the Minister, and that, as a consequence, was unable to make good grounds of attack in the reasoning process of the Tribunal, is not made out, having regard to the contents of that interview.
The tape of the interview does not support the contention by the appellant that he requested a copy of it. Importantly, there is nothing in the tape which provides assistance to him in any of the grounds of appeal, either to the Federal Magistrates Court, or to this Court.
There is nothing in the material to support an allegation of bias or apprehended bias by the Tribunal. The reasoning of the Federal Magistrate reveals no error, and in particular, no jurisdictional error by the Tribunal.
Finally, concerning the ground based on a claim that the Tribunal did not consider the nine documents of the appellant, Smith FM was correct to dismiss the corresponding ground argued before him, for the reasons which his Honour gave.
There is no appellable error demonstrated in the judgment of Smith FM, nor is there any jurisdictional error on the part of the Tribunal shown.
The adjournment of the appeal to this Court on 15 May 2009 so as to permit a copy of the tape of the interview between the appellant and the delegate of the first respondent to be obtained had the result that the tape was produced to the registry, and the parties had an opportunity to listen to the tape and make further submissions arising out of that event, should they have so desired.
Further consideration of the contents of the tape indicates to me that the appellant’s contention that he requested a copy of the tape was not made out, and further, that the tape demonstrates that complaints later levelled by the appellant at the decision of the delegate are not supported by anything revealed in the taped interview.
For the above reasons, the appeal to this Court is dismissed.
I order that the appellant pay the first respondent’s costs, including reserved costs, of and incidental to the appeal, to be taxed if not agreed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 6 November 2009
Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr GT Johnson Solicitor for the First Respondent: DLA Phillips Fox
Date of Hearing: 15 May 2009 Date of Judgment: 6 November 2009
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