FEDERAL COURT OF AUSTRALIA

SZKCE v Minister for Immigration and Citizenship [2009] FCA 1216

MIGRATION – Appeal from the Federal Magistrates Court – Leave to appeal granted on the ground that the Federal Magistrates Court erred in concluding that no jurisdictional error apparent in the Refugee Review Tribunal’s decision – Whether the Tribunal erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa – Whether in so doing the Tribunal failed to comply with Migration Act 1958 (Cth) s 91R(3) that such conduct be disregarded – When leave to appeal granted there was a reasonable apprehension by analogy that an arguable case for the granting of leave to appeal existed – Application for special leave to the High Court of Australia from the Full Court of the Federal Court of Australia in an analogous case – Minister for Immigration and Citizenship v SZJGV - Held by the High Court that s 91R(3) does not prevent a decision maker from regarding a visa applicant’s conduct in Australia and the reason for that conduct for all purposes related to the determination of the visa application – Whether an adjournment of the hearing of the appeal be granted to enable appellant to have the benefit of further legal advice – Evidence that appellant has had the benefit of legal advice – Held only reasonable conclusion is that appeal be dismissed – Held Tribunal committed no jurisdictional error – Held appeal dismissed

Migration Act 1958 (Cth) s 91R(3)

SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814 cited

SZJGV v Minister for Immigration and Citizenship (2008) 170 FCR 515 cited

Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595 applied

SZKCE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2410 of 2007

LOGAN J

26 OCTOBER 2009

BRISBANE (via video link to sydney)

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The Appellant is to pay the First Respondent’s costs of and incidental to the appeal 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.

REASONS FOR JUDGMENT

1                     On 1 December 2008, for reasons which I then published, I made a number of orders directed to the granting to the appellant of leave to appeal against the judgment of the Federal Magistrates Court given on 12 November 2007:  see SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814.  Leave to appeal was granted on one ground only, namely “the Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal’s (the Tribunal) decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa.  In so doing, the Tribunal failed to comply with the stipulation made in s 91R(3) of the Migration Act 1958 (Cth) (Migration Act) that such conduct must be disregarded”.

2                     The Appellant subsequently filed and served a notice of appeal specifying that nominated ground of appeal.  The background to the Appellant’s application for a protection visa together with the course of subsequent proceedings in the Refugee Review Tribunal, in the Federal Magistrates Court and in this Court are set out in my reasons for judgment in respect of the leave to appeal application.  These reasons for judgment should be read in conjunction with the reasons for judgment which I gave in respect of that leave to appeal application. 

3                     At the time when I granted leave to appeal there was a basis for apprehending by analogy as between the circumstances of the Appellant’s case and those in SZJGV v Minister for Immigration and Citizenship (2008) 170 FCR 515 that an arguable case for the granting of leave to appeal existed.  An application for special leave to appeal by the Minister in SZJGV was then pending in the High Court of Australia.  In the interval which has passed between 1 December 2008 and today the High Court has, in respect of SZJGV, granted special leave to appeal to the Minister, heard the appeal and, on 30 September 2009, determined the appeal:  see Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595.  The High Court, by majority, allowed the Minister’s appeal in SZJGV.  In so doing, the High Court reversed the result before a Full Court of this Court which had provided the foundation for a conception that the present Appellant had an arguable case for a grant of leave to appeal. 

4                     More particularly, the majority in SZJGV held that on the proper construction of s 91R(3) of the Migration Act it is not necessary for a decision maker to disregard a visa applicant’s conduct in Australia and the reason for that conduct for all purposes related to the determination of the visa application.  To the contrary, so the majority held, the only conduct which is excluded by s 91R(3), is that which may favour an acceptance of a visa applicant’s claim. 

5                     In my reasons for judgment in respect of the application for leave to appeal (at para 28) I set out an excerpt from the tribunal’s reasons.

6                     In the course of the excerpted passage from the Tribunal’s reasons the Tribunal voices the opinion that the Appellant’s Falun Gong activities in Australia were done for the purpose of strengthening her claims to refugee status.  That particular opinion, so the reasons record, was put to the Appellant by the Tribunal on the hearing of her review application.  The Tribunal records in the reasons that the Appellant did not respond to that proposition.  The Tribunal later records in the passage excerpted a satisfaction that, to the extent that the Appellant had engaged in Falun Gong related activities in Australia, this was not done out of a genuine commitment to Falun Gong but rather to strengthen her claim to be a refugee.

7                     The Tribunal then records the view that such conduct must be disregarded pursuant to s 91R(3).  The Tribunal further records an absence of satisfaction that the Appellant was a person entitled to a protection visa largely, if not wholly, on the basis of an adverse view formed as to the Appellant’s credibility. 

8                     The Minister’s submissions were cast in the alternative on the appeal.  In the first instance it was submitted that, having made all primary findings of fact in relation to the Appellant’s claims and determined that she had engaged in Falun Gong related activities in Australia for the sole purpose of strengthening her claims, the Tribunal had disregarded that conduct pursuant to s 91(3), and did not rely on it either to strengthen or discredit her claims. 

9                     It is true that, read in isolation, there is a passage, to which I have referred and which is set out in the excerpt in my earlier reasons for judgment, which might support such a conception of the Tribunal’s reasons.  Reading those reasons as a whole, and particularly having regard to the strength of the conclusion reached by the Tribunal in relation to why the Appellant had engaged in Falun Gong related activities in Australia to the extent that she had, it is somewhat artificial not to regard that particular conception of her behaviour as having had no influence on the Tribunal’s overall conception of her credibility. 

10                  The alternative submission made on behalf of the Minister was that even if the Tribunal had made such use of the appellant’s activities in Australia, this use did not, having regard to the construction of s 91R(3), which prevailed in the High Court, make any difference to the outcome of the appeal.  In other words, it was permissible, in light of the construction which prevailed in the High Court of s 91R to have regard to conduct in Australia as part of an overall assessment of credibility. 

11                  In my opinion, that alternative submission is the preferable one. 

12                  The Appellant did not, in terms, seek to engage at all with the merits of what impact the High Court’s judgment in SZJGV had on her appeal.  Instead, she sought an adjournment of the hearing of the appeal to a date to be fixed early in next year so as to enable her to have the benefit of further legal advice.  She handed up a letter from Macarthur Legal Centre in which reference was made to the lags that would necessarily attend the making of an application for legal aid funding, and then the identification and retention of counsel and the obtaining of advice from and representation by counsel. 

13                  At interlocutory stages in respect of the hearing and determination of the leave to appeal application, I was persuaded that it was in the interests of justice for the Appellant, then an applicant for leave to appeal, to be granted adjournments for the purpose of obtaining legal advice in relation to her leave to appeal application.  As it transpired, the basis upon which she came to seek and was granted leave to appeal was the result of her having had the benefit of those adjournments and the associated opportunity to seek and obtain legal advice.  She has, in this sense, been well served, as have the interests of justice by the service provided by the Macarthur Legal Service. 

14                  I have anxiously reflected on whether there ought to be an adjournment of the appeal itself for the reason set out in the Macarthur Legal Centre letter.  That letter not only highlights a basis for seeking an adjournment, but also confirms that the Appellant has been able, in the time available, to attend upon that centre. 

15                  This appeal was originally to be heard by me in the November sittings of the Court.  The hearing date was brought forward after the Appellant made known to the Registry that she had prearranged with her boyfriend to take a holiday commencing on 30 October 2009. 

16                  Were I of the opinion that the result in the present case was anything other than governed by the High Court’s decision in SZJGV in a way which did not admit reasonably of any conclusion other than that the appeal must be dismissed, then I would have been inclined to grant the appellant the adjournment sought.  However, the result in SZJGV in the High Court is such that, however one approaches the way in which the Tribunal dealt with the evidence of the Appellant’s activities in Australia, either on the basis primarily submitted on behalf of the Minister, or on the basis which I prefer, the Tribunal committed no jurisdictional error.  Rather, it was permissible for the Tribunal to have regard to conduct in Australia informing an adverse view of the Appellant’s credibility.  There is truly no utility, even having regard to the contents of the Macarthur Legal Centre letter, in the granting of an adjournment. 

17                  It follows, therefore, that the appeal must be dismissed.

Associate:

Dated:         28 October 2009