SZJOW v Minister for Immigration and Citizenship

[2007] FCA 790

FEDERAL COURT OF AUSTRALIA

SZJOW v Minister for Immigration & Citizenship [2007] FCA 790

SZJOW AND SZJOX v MINSTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 198 OF 2007

STONE J
21 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 198 OF 2007

BETWEEN:

SZJOW
First Applicant

SZJOX
Second Applicant

AND:

MINSTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	21 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The orders made in this matter on 2 May 2007 be set aside.

2.The Minister for Immigration and Citizenship be substituted for the Minister for Immigration and Multicultural Affairs as the first respondent to the application.

3.The application for leave to appeal be dismissed.

4.The applicants pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 198 OF 2007

BETWEEN:

SZJOW
First Applicant

SZJOX
Second Applicant

AND:

MINSTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	21 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants are a married couple who arrived in Australia from the People’s Republic of China on 18 February 2006.  They applied for protection visas on the basis that they had a well-founded fear of persecution should they be returned to China by reason of their membership of an underground church.  Although both applicants claim to have suffered persecution in China, in their application for protection visas only the husband made substantive claims, with the wife making an application as a member of the family unit.  The fate of her application therefore depends on the fate of her husband’s.  Despite this, as only the applicant wife attended the hearing, references in these reasons to the ‘applicant’ are to her unless otherwise indicated.

2. Their application was rejected in turn by a delegate of the first respondent and by the Refugee Review Tribunal. They applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The Federal Magistrate dismissed their application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001. 

3. His Honour found that the application had failed to identify any jurisdictional error on the part of the Tribunal, and that the applicants had not filed any additional documents detailing such error. His Honour examined the Tribunal’s procedures and reasoning for himself but was unable to discern any jurisdictional error. Consequently his Honour was not satisfied that the application raised an arguable case for relief; [2007] FMCA 123.

4. Although the order of the Federal Magistrate disposed of the proceeding it did not finally determine all the substantive rights of the parties at issue in the proceeding.  It is therefore an interlocutory decision; Hall v Nominal Defendant (1966) 117 CLR 423 at 440 per Taylor J. Accordingly, the applicants require the leave of this Court to appeal; s 24(1A) Federal Court of Australia Act 1976 (Cth). Their application for leave was originally listed for hearing at 11.30 am on Wednesday 2 May 2007. At that time there was no appearance by the applicants and I dismissed the application with costs pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

5. The applicants now seek to have this order set aside and their application for leave considered on its merits.  They claim that their non-appearance at the scheduled time was because a letter dated 30 March 2007 from the Court Registry had advised them that the hearing was to be held at 11.30 pm on 2 May.  In a letter dated 3 May 2007 the applicant husband said that he had attended the Court at that time but ‘there was nobody there, and the Court was closed.’  In the interests of justice therefore, and with the consent of the Minister, I agreed to set aside the orders made on 2 May 2007, and proceeded to hear the application for leave.  

6. Leave to appeal from an interlocutory order will not be granted where an appeal has no prospect of success; Décor Corp v Dart Industries Inc (1991) 33 FCR 397. The applicants’ draft notice of appeal sets out two grounds. The first is that the Tribunal committed jurisdictional error in failing to comply with the Migration Act 1958 (Cth), and the second is that the Tribunal denied fairness to the applicants when affirming the decision not to grant a protection visa. No particulars are provided. Clearly it is not possible to regard an appeal based solely on these grounds as having any chance of success. Bearing in mind, however, that the applicants are self-represented I have reviewed the decision of the Tribunal myself. On the face of the decision I can discern no jurisdictional error.

7. The Tribunal dismissed the application because, although it accepted that the applicants were practising Christians, it did not accept their claim that they were members of an underground church in China. The Tribunal identified internal inconsistencies in the husband’s evidence and contradictions between the evidence of husband and wife. The Tribunal explored these inconsistencies and contradictions at the hearing. Pursuant to s 424A of the Migration Act 1958 (Cth), it also wrote to the applicants expressing its concerns and giving them the opportunity to comment further. The applicants responded by letter and the Tribunal took into account their response. Ultimately, however, the Tribunal was not satisfied by the evidence and dismissed their application. The Tribunal found that the applicants were members of an officially-sanctioned church in China and that they would face no obstacle to continuing in the practice of their faith within that church if they were to be returned to China.

8. As mentioned above, only the applicant attended the hearing before me. Her husband had previously notified the Court that he would be unable to attend.  The applicant was assisted by an interpreter in the Mandarin language however, early in the hearing the interpreter said that she was not able to understand the applicant.  Apparently, the husband speaks Mandarin but the applicant speaks only a dialect which the interpreter was not able to understand.  Fortunately a Ms Xue, who is the applicant’s niece, was present at the hearing.  Ms Xue, who understands both Mandarin and the dialect spoken by the applicant, indicated that she was willing to translate the dialect spoken by the applicant into Mandarin for the interpreter, who could then translate it into English for the Court.  The applicant indicated that this arrangement was acceptable to her and the hearing proceeded on that basis. 

9. I invited the applicant to make whatever submissions she wished in support of the application before me.  The applicant spoke at some length however all her submissions were directed to challenging the Tribunal’s findings of fact.  Although these submissions were not relevant to the matter in hand I allowed them to continue to ensure that the translation arrangements were satisfactory.  I checked with Ms Xue and with the interpreter and both from their responses and from my own observations of the ease with which the translation appeared to be carried on, I am satisfied that there was no difficulty in the applicant conveying her meaning to the Court. 

10. As I have said, the applicant’s submission did not address the question of error by the Federal Magistrate or of jurisdictional error by the Tribunal.  It is well established that, absent a relevant error, the Court cannot interfere with the Tribunal’s factual findings.  I am satisfied that the findings made by the Tribunal were open to it on the evidence.  In my view, the Federal Magistrate was correct in his assessment that the application raised no arguable case for relief.  An appeal to this Court from his decision to dismiss the application would have little or no prospect of success and consequently, leave to appeal should not be granted.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        23 May 2007

The applicant appeared in person, assisted by an interpreter.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 May 2007
Date of Judgment:	21 May 2007