SZNER v Minister for Immigration and Citizenship

[2009] FCA 1297

FEDERAL COURT OF AUSTRALIA

SZNER v Minister for Immigration and Citizenship [2009] FCA 1297

SZNER and SZNES v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 980 of 2009

SIOPIS J
13 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 980 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNER
First Appellant

SZNES
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	13 NOVEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal of each of the first and second appellants is dismissed.

2.The appellants are to pay the first respondent’s costs in the sum of $3,500.

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 980 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNER
First Appellant

SZNES
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	13 NOVEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are citizens of the People’s Republic of China who arrived in Australia on 17 June 2008.  On 27 June 2008, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent (the Minister) refused the application for a protection visa on 18 August 2008.  On 10 September 2008, the appellants applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.

2. Before the Tribunal, the appellant wife (the first appellant) claimed to fear persecution because she converted to Christianity in 2000 and became a member of an underground church.  The appellant husband (the second appellant) claimed to have been arrested and imprisoned from January 1997 to January 2000 as a result of being charged with a “groundless crime – Intent Harm”.  After he was released he followed his wife into the Christian religion and he also became a member of the underground church.  The appellants claimed to have attended church services in Hurstville, New South Wales, since they arrived in Australia.

   THE TRIBUNAL

3. The Tribunal found both appellants to be untruthful in their evidence.  The Tribunal noted that while they were able to state the information which was contained in their statements, they had difficulties with the information that was not.  The Tribunal also found that there were significant inconsistencies between their oral and written evidence, and inconsistencies between the oral evidence given by the first and second appellants.

4. The Tribunal also disregarded their conduct of attending church and engaging in other religious activities in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act), as it was not satisfied in either case that they had engaged in this conduct otherwise than for the purposes of strengthening their refugee claims.

5. The Tribunal was of the view that any concerns that the appellant husband had with the protection of human rights, lawlessness, general corruption or China’s judicial system did not, on their own, give rise to a well-founded fear of persecution for a Convention reason.

6. Accordingly, the Tribunal was not satisfied that the appellants had a well‑founded fear of persecution for a Convention reason.

   THE FEDERAL MAGISTRATE

7. On 27 January 2009, the appellants sought judicial review in the Federal Magistrates Court.  The application claimed that:

   The Tribunal failed to exercise its jurisdiction in that it failed to give the applicant credibility based on information provided by or regarding the applicant and failed to comply with the requirements of section 499(41) of the Migration’s Act.

8. Only the second appellant appeared at the hearing before the Federal Magistrate.  He applied for an adjournment of the hearing on the grounds that his wife was “crippled”, having injured her leg.  The second appellant said that his wife had not seen a doctor or visited a hospital because they did not have any money.  However, said the second appellant, he knew that injuries of that type took 100 days to recover.  Counsel for the Minister opposed the granting of an adjournment.  Counsel said that the first time that the lawyers for the Minister heard of the request for the adjournment was when they arrived at court for the hearing.  The Federal Magistrate said that, in light of the lack of evidence of the wife’s injury he would refuse the adjournment.

9. The Federal Magistrate asked whether the first appellant was available by telephone. The second appellant said that they had no landline telephone or mobile telephone. The Federal Magistrate ruled that the hearing would proceed in the absence of the first appellant. He said that the court had power to proceed with a hearing generally in the absence of a party under r 13.03C(1)(e) of the Federal Magistrates Court Rules 2001.

10. At the conclusion of the hearing, however, the Federal Magistrate granted leave to the first appellant to file any written submissions she wished within 14 days.  The first appellant did not file any written submissions during that 14 day period, and after the expiry of the period, the Federal Magistrate delivered his judgment.

11. In respect of the ground of review relied upon by the appellants, the Federal Magistrate noted that the second appellant was unable to explain the relevance of s 499 of the Act to the application before the court.  The Federal Magistrate found that this reference was clearly an error, given that s 499 does not have a subs 41, and the provision is directed towards empowering the Minister to give written directions to a person or body having functions or powers under the Act.  However, the Federal Magistrate did consider whether the Tribunal had complied with s 424A and s 425 of the Act, and found that it had.

12. In respect of the challenge to the Tribunal’s findings that the appellants were not witnesses of truth, the Federal Magistrate found that the credibility of the appellants was a matter for the Tribunal.

13. During the course of oral submissions, the second appellant also complained that the interpreter at the Tribunal hearing did not interpret the questions correctly.  The Federal Magistrate found that the claim as to the standard of interpreting had not been made until the day of the hearing before him.  The Federal Magistrate observed that there was no evidence in support of the claim and that the appellants had provided no affidavit or transcript of the Tribunal hearing.  Further, there was nothing in the Tribunal’s Decision Record to show that the appellants had any difficulty in understanding the questions at the hearing.  The Federal Magistrate found that this ground of review was not made out.

14. The Federal Magistrate dismissed the application for judicial review.

    THE APPEAL

15. On 7 September 2009, the appellant filed a notice of appeal in this Court, in which it is contended that:

    1.The Federal Magistrates Court failed to exercise its jurisdiction in that it failed to give the applicants credibility based on information provided by or regarding the applicants.

    2.The Federal Magistrate Court failed to grant an adjournment to the first applicant when the first applicant had injury in the leg and could not appear in the court.

    3.The Federal Magistrate Court failed to recognize the want of natural justice for failure of the interpreting service in the Department of Immigration and Citizenship and the Tribunal.

    Ground 1

16. The appellant’s first ground of appeal mirrors the first limb of the ground of review that was before the Federal Magistrate at [7] above. I have treated this ground as a complaint that the Federal Magistrate erred in rejecting this ground of review.

17. In my view, the Federal Magistrate did not err in finding that the determination of the credibility of witnesses was a matter for the Tribunal.  The appellants did not demonstrate jurisdictional error by asserting disagreement with the credibility findings of the Tribunal.

18. In relation to this ground the Federal Magistrate correctly observed as follows, at [45] of his reasons:

    The Applicants claim that the Tribunal “failed to exercise its jurisdiction in that it failed to give the applicant credibility based on information provided by or regarding the applicant”. If that ground is a challenge to the Tribunal’s findings that the Applicants were not witnesses of truth, the answer to that claim is that credibility is a matter for the administrative decision-maker (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham per McHugh J at [67]).  (Original emphasis and footnote omitted.)

19. The Tribunal set out at length the inconsistencies that it relied on in making its adverse credibility findings in respect of the appellants (see pp 137-144 of the Appeal Book).  It was open to the Tribunal to come to the view that it did as to the appellants’ credibility.

20. The first ground of appeal is dismissed.

    Ground 2

21. The second ground of appeal relates to the oral application made by the second appellant for an adjournment of the hearing in the Federal Magistrates Court.

22. Before me in oral submissions, the appellants stated that they could not afford to have the first appellant attend a doctor about her injury prior to the hearing before the Federal Magistrate.  Further, said the appellants, they did not have the financial resources to submit written submissions to the Federal Magistrates Court pursuant to the leave granted by the Federal Magistrate.  However, the appellants did not point to any matters which the first appellant would have raised had she made submissions to the Federal Magistrate, which were not, in fact, considered by the Federal Magistrate.

23. In my view, it was within the discretion of the Federal Magistrate whether to grant an adjournment or not.  It cannot be said that the Federal Magistrate erred in exercising his discretion to refuse the application for an adjournment.  In this case, there was no evidence to support the assertion that the first appellant was medically unfit to attend the hearing.  Further, no notice of the intention to ask for an adjournment was given to the Federal Magistrates Court or to the other parties.  The consequence was that everyone, other than the first appellant, was, when the case was called on, in a position to proceed with the hearing.  Albeit that the second appellant said that he had no authority to represent the first appellant, the second appellant was present and was able to advance arguments in support of the grounds of review relied upon by the appellants which raised matters common to both of them.  In those circumstances, it was, in my view, open to the Federal Magistrate to exercise his discretion to refuse the adjournment.

24. In any event, the Federal Magistrate provided the first appellant with an opportunity to provide written submissions after the hearing.  However, the first appellant did not take advantage of that opportunity.  As mentioned, the appellants did not point to any matters the first appellant would have raised had she filed the submissions, which the Federal Magistrate did not consider.  In fact, the Federal Magistrate went beyond the matters raised by the appellants in their grounds of review and the second appellant’s oral submissions, in considering whether the Tribunal had fallen into jurisdictional error.  The additional matters the Federal Magistrate considered were whether the Tribunal had complied with s 424A and s 425 of the Act and found that it had.

25. The second ground of appeal is dismissed.

    Ground 3

26. The third ground of appeal relates to the further oral contention that was made before the Federal Magistrate in relation to the quality of the interpreting provided at the Tribunal hearing.

27. In my view, the Federal Magistrate did not err in dismissing this ground of review.  There was no evidence before the Federal Magistrate to support the claim made by the appellants.  Further, I note that the Federal Magistrate did observe in his reasons that the two interpreters at the Tribunal hearing were qualified at NAATI Level 3.

28. The third ground of appeal is dismissed.

29. The appeal of each of the first and second appellants is dismissed with costs.

I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:
Dated:        13 November 2009

Counsel for the First and Second Appellants:	The Appellants appeared in person.
Counsel for the First Respondent:	Mr GT Johnson
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	11 November 2009
Date of Judgment:	13 November 2009