SZNUC v Minister for Immigration and Citizenship [2010] FCA 91 (15 February 2010)

Last Updated: 22 February 2010

FEDERAL COURT OF AUSTRALIA

SZNUC v Minister for Immigration and Citizenship [2010] FCA 91

Citation:		SZNUC v Minister for Immigration and Citizenship [2010] FCA 91
Appeal from:		SZNUC v Minister for Immigration & Anor [2009] FMCA 1172
Parties:		SZNUC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1345 of 2009
Judge:		NICHOLAS J
Date of judgment:		15 February 2010
Legislation:		Migration Act 1958 (Cth) ss  424A, 424AA, 425 Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)
Cases cited:		SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 cited SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 cited SZNUC v Minister for Immigration & Anor [2009] FMCA 1172 affirmed
Date of hearing:	15 February 2010
Date of last submissions:	15 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	15
	Appellant did not appear
Solicitor for the First Respondent:	Clayton Utz
Counsel for the First Respondent:	P Reynolds

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1345 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNUC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	15 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs in the amount of $2,520.00
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1345 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNUC Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLAS J
DATE:	15 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

BACKGROUND

1. The appellant appeals from the decision of a federal magistrate delivered on 18 November 2009, which dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 June 2009 (see SZNUC v Minister for Immigration & Anor [2009] FMCA 1172). The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.
2. The appellant is a citizen of China who arrived in Australia on 27 November 2008. On 24 December 2008 he lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the Minister refused the application on 24 March 2009 and notified the appellant by letter dated 25 March 2009. On 28 April 2009 he applied to the Tribunal for a review of that decision.
3. The matter was listed before me for hearing today at 10.15 am. The matter was called and there was no appearance by the appellant. The solicitor for the first respondent, with the assistance of an interpreter who was here to assist the appellant in the presentation of his appeal, made several attempts to contact the appellant by telephone using a mobile number for the appellant which appears in the notice of appeal. Those attempts were unsuccessful. The matter was adjourned for about 15 minutes to give the appellant a further opportunity to appear. Upon resuming the hearing there was still no appearance and the hearing proceeded in the appellant’s absence.

FACTS

4. The appellant claimed that in 2005 his father started practicing Falun Gong to improve his health. He claimed that while he did not practice Falun Gong, he printed and handed out Falun Gong material and material about the Chinese Communist Party’s suppression of Falun Gong. He claimed that his superior caught him using the photocopier/printer at his place of employment following which he was, in December 2007, detained for 10 days by the Public Security Bureau. This detention was said to have occurred in a detention centre for violent criminals where he was beaten. The appellant said he was released after paying an amount of RMB 50,000 and was required to report to police every three months. He said the police thereafter came to his home or shop and asked for money on three separate occasions. He also claimed that he heard, after the Olympic Games were concluded, that Falun Gong would be suppressed and that he would be arrested again. He says that his led him to make his arrangements to travel from China to Australia.

THE TRIBUNAL’S FINDINGS

5. The Tribunal found the appellant was not a truthful witness and that his statements to both the Department and the Tribunal lacked credibility. The Tribunal compared the statements made by the appellant at the Tribunal hearing with those made by him to the delegate and in his written statement accompanying his visa application. The Tribunal noted that the appellant had made inconsistent statements about what he was copying at his work, particularly as to whether he had copied passages from the “Nine Commentaries on the Chinese Communist Party”. It stated that this inconsistency went to the heart of his claims since it was the copying of that material at work which resulted in his arrest. The Tribunal referred to a number of other claims made by the appellant, including that he was required to report to police on a regular basis, and that they had come to him on three occasions asking for money, and noted that they were made for the first time during the hearing before it.
6. Having found that the appellant was not a credible witness, the Tribunal rejected all of his claims to fear harm. It was of the view that there was no plausible evidence before it that the appellant had suffered persecution in China for any Convention reason. It therefore affirmed the decision under review.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

7. The appellant filed an application in the Federal Magistrates Court on 28 July 2009 claiming judicial review of the Tribunal’s decision. An amended application was filed on 25 September 2009 in which he raised the following ground of review:

The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise jurisdiction, by reason that it failed to comply with the Migration Act, s424A(1).

Particulars

(a) The RRT failed to comply with the Migration Act, s424AA(a) in that it failed to give clear particulars of oral information that the Applicant had given to the Department of Immigration at interview. In particular, it did not provide the Applicant with a copy of the interview tape relating to that interview and/or a copy of the transcript of that interview, the RRT preferring to “paraphrase for the applicant what he stated at the interview”, the Applicant having denied making the alleged statements at interview and referring to possible “verbal mistakes by the interpreter”. CB pages 91-93, paragraphs 61-68, CB page 94, paragraphs 73-74

(b) The RRT failed to comply with the Migration Act, s424AA(b) (iii). CB page 93, paragraph 70

(c) The RRT, in view of the above failure to comply with the Migration Act, s424AA, at no time complied with its procedural obligations under s424A(1) and (2).

8. The federal magistrate who heard the application found there was no information before the Tribunal which enlivened the obligations under s 424A(1) of the Migration Act 1958 (Cth) (the Act). In particular, his Honour held that there was no obligation on the Tribunal to disclose to the appellant the inconsistencies in his evidence because that was not “information” for the purposes of that section. His Honour also held that it followed that the Tribunal had no obligations in relation to the alternative procedures provided for in s 424AA.
9. The federal magistrate also noted the appellant would have been on notice from the delegate’s decision that the general credibility of all his claims was in issue in the review and that the Tribunal might be assessing his credibility by testing his evidence for consistency. Further, his Honour noted that s 425 of the Act did not require the Tribunal to give warnings about how it might assess evidence relevant to issues which would have been apparent to the applicant in any event. The federal magistrate was not satisfied that the Tribunal’s decision was affected by jurisdictional error. His Honour dismissed the application.

THE APPEAL TO THIS COURT

10. On 23 November 2009 the appellant filed a notice of appeal from the decision of the federal magistrate. The appellant raises the following matters in that notice of appeal:
    1. I sincerely appreciate the Federal Magistrates Court for sending a free solicitor to help me with my case. The solicitor told me that he had read my green book and done hearing the tapes of interview of RRT and found that RRT member breached the section 424A of the Act.
       
    2. Federal Magistrate SMITH didn’t consent my free solicitor’s view that RRT member made jurisdictional error while he decided my application for protection visa.
11. These paragraphs do not constitute grounds of appeal. However, the appellant appears to maintain his complaint that the content of the interview between the appellant and the delegate, which was relied upon by the Tribunal in the manner I have described, was information for the purpose of s 424A, and the Tribunal failed to comply with that section in relation to such information. The federal magistrate considered this complaint and gave his reasons for rejecting it. In particular at paragraphs 15 and 16 of the reasons his Honour said:
    15. ... it is clear that no obligations arose under ss.424A and 424AA in relation to the Tribunal’s concerns about the applicant’s inconsistent evidence given to the delegate and to it, concerning the nature of the Falun Gong material he had copied. This issue had been put to the applicant at the hearing ... and no issues of procedural fairness arise generally in relation to this element of the Tribunal's reasoning.
        
    16. In relation to section 424A(1), as interpreted by the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 and Minister for Immigration & Citizenship v SZLFX [2009] HCA 31 at [22], the Tribunal’s reference to what had been said by the applicant to the delegate did not involve it locating “information” as a reason for affirming the delegates decision, which was required to be put to the applicant in writing. The consequence is that the Tribunal also had no obligations in relation to the alternative procedures under s.424AA (see s.424A(2A) and SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
12. The federal magistrate also looked beyond the particular complaints raised by the appellant before him and was apparently of the view that there was no indication that the Tribunal had made any jurisdictional error in the course of arriving at its decision.
13. I consider the federal magistrate was correct for the reasons stated by him. A breach of s 424AA of the Act does not of itself constitute jurisdictional error. And non-compliance with s 424AA in circumstances where there is no duty otherwise imposed by s 424A appears to be of no legal consequence: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [73] – [75] per Tracey and Foster JJ. In the present case the alleged “information” could not be, adopting the language of s 424A(1)(a), “information that the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review”: SZBYR v Minister for Immigration and Citizen [2007] HCA 26; (2007) 235 ALR 609 at [17].
14. Accordingly, I am satisfied that there is no error in the federal magistrate’s reasons of the nature suggested in the notice of appeal. Moreover, a review of his Honour’s reasons as a whole considered independently of the notice of appeal do not suggest that his Honour’s decision was affected by any other error.
15. I propose to make an order under s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) dismissing the appeal on account of the appellant’s failure to appear at the hearing of his appeal. The power to make such an order is, of course, discretionary and in deciding to exercise the discretion against the appellant I have taken into account not only his failure to appear at the hearing, but the fact that his appeal appears to have no serious prospects of success. Accordingly, I order that the appeal be dismissed. I also order that the appellant pay the first respondent’s costs of the appeal in the amount of $2,520.00
    

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated: 18 February 2010