SZMBY v Minister for Immigration and Citizenship

the alleged failure of the tribunal to reschedule a new hearing 6 The notice of appeal to this Court dated 5 May 2010 contains one ground as follows: The Federal Magistrate failed to consider the applicant's claim that the RRT decision was affected by jurisdictional error. Particulars: The Tribunal failed to reschedule a new hearing after the applicant claims [sic] his ability to give evidence was affected after knowing his father had cancer. 7 This ground was not agitated before the learned Federal Magistrate in these terms, although the applicant relied on the asserted failure of the Tribunal to "invite [him] to provide evidence of [his] father's illness, which affected [his] capacity to give evidence before the Tribunal". In dealing with and dismissing that ground, the learned Federal Magistrate included in his reasons for judgment his conclusion that the appellant had been given an adequate opportunity by the Tribunal to address such problems as were caused at the Tribunal's hearing by any inability of the appellant to give evidence as a result of the appellant becoming aware that his father had cancer. 8 Given the decision I have reached, it is not necessary that I rule upon the first respondent's contention that the appellant seeks to agitate a new ground and that leave to do so should be refused. 9 As a transcript of the hearing before the Tribunal is not before me, the Tribunal's record in its statement of reasons is the best available evidence of what occurred at the hearing. In relation to the matter of the appellant raising his father's cancer, the Tribunal's reasons state: 69. Invited to tell the Tribunal anything further he wished, he said that two days before the hearing he had heard that his father had been diagnosed with colon cancer. For that reason his oral evidence had been a bit messed up. He considered it had affected his evidence. On this basis the Tribunal suggested that he listen to the recording of the hearing, then either request a further hearing or make a written submission. [The appellant] agreed to this and said he considered it to be a fair arrangement. It was agreed that he would advise the Tribunal by 6 July 2009 if he wished to give further oral evidence, and would otherwise provide a written submission. 10 The appellant did in fact respond to the Tribunal's invitation. The response is Annexure A to the affidavit of Katherine Nicole Hooper, affirmed in the Federal Magistrate Court proceedings on 5 November 2009. The Tribunal considered this response in [70]-[74] of its reasons: 70. On 6 July 2009 the Tribunal received a written statement in Chinese, which had been translated by [the appellant's] migration agent. In a covering letter, the agent stated that [the appellant] was willing to give "any further information on the Tribunal's request". No request was made for an opportunity to give further oral evidence. In his statement [the appellant] provided responses to two questions to which he did not consider he had given "correct answers" at the hearing because of his difficulty in concentrating on that day. These were: 71. (a) from August 2006 to July 2007 he had moved to 1512, No. 8 Building Gao Xiang, Rongcheng Town in Fuqing city; 72. (b) on 22 July 2007 the police had come to arrest him when he was attending Mass at his church friend's home. With the help of other members of the church he escaped arrest: 73. He also stated that in 2007 his mother was diagnosed with bladder cancer, in 2008 she was involved in a car accident and in 2009 his father had been diagnosed with cancer. His parents' financial situation had deteriorated because of these problems. He expressed his concern for them. 74. He also reiterated that he was a devout Catholic who attended Mass regularly, and that this was not allowed in China. All the religious activities in which he believed were illegal in China. He claimed that he was on a blacklist in China. 11 The first respondent submitted that the Tribunal's reasons for decision, together with the appellant's response of 6 July 2009, provides evidence that the appellant was in fact given the opportunity to request a further hearing, however, he chose not to make that request. Further, it is submitted that the appellant took the opportunity to inform the Tribunal of what aspects of his evidence to the Tribunal were affected by his emotional state, and he provided what he said was the corrected version of this evidence. These matters were not such as to suggest that a further hearing was necessary, even though not requested. 12 I accept the first respondent's submissions on that issue. 13 Furthermore, in concluding that the appellant's evidence was vague on significant points, the Tribunal took into account that the appellant had been distracted by his father's illness. The Tribunal, however, determined that the distraction did not account for all of the vague and inconsistent evidence the appellant gave, and that was particularly so, given that the appellant gave relatively detailed evidence on certain points from which he later resiled. In the circumstances the Tribunal was required to do no more. The "real and meaningful" opportunity to give evidence and present argument required to be provided to a visa applicant by s 425 of the Migration Act is not nullified by mere failure by an applicant to present his or her case in the best possible light: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [22] per Keane CJ (with whom Emmett J agreed). 14 The appeal will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.