SZKMO v Minister for Immigration and Citizenship

[2007] FCA 1882

FEDERAL COURT OF AUSTRALIA

SZKMO v Minister for Immigration and Citizenship [2007] FCA 1882

SZKMO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1634 OF 2007

SPENDER J
20 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1634 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZKMO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	20 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, fixed in the sum of $2,075.00.

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 1634 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZKMO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	20 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Emmett FM delivered on 25 July 2007, whereby her Honour dismissed the appellant’s application for review of a decision made by the Refugee Review Tribunal (the Tribunal) handed down on 13 March 2007.  The Tribunal had affirmed a decision of a delegate of the Minister refusing the appellant a protection (Class XA) visa. 

2. The submissions by the appellant to this Court once again reveal the distressing fact that self-represented appellants in refugee cases do not appreciate the basis on which this Court can interfere or overturn decisions made by the Tribunal on crucial matters of fact.

3. The appellant is a 30 year old female and a citizen of the People’s Republic of China.  On 15 November 2005, she arrived in Australia, and on 25 November 2005 lodged her application for a protection (Class XA) visa, in which she claimed to fear persecution by reason of being subjected to a forced tubal ligation and other penalties, as a result of having given birth to three children, contrary to China’s “one child” policy. 

4. The Tribunal made findings of fact concerning the applicant’s claim, and, in particular, held: 

   The evidence before the tribunal does not satisfy it that the Applicant has had any more than one child. 

5. Accordingly, the Tribunal said it was not satisfied that the applicant would be identified as a person who had breached the family planning regulations in the People’s Republic of China, or in the area of Fujian.  The consequence was that there was not a real chance of persecution for that breach. 

6. In her oral submissions to the Federal Court today, the appellant said,

   Everything I said is the truth.  I gave birth to three children.  Because I was persecuted, I was unable to go to my home.  Presently my children are scattered everywhere. 

7. This claim by the appellant expresses a profound disagreement with the conclusion which the Tribunal reached. 

8. This Court, and the Federal Magistrates Court below it, can only interfere with a decision by the Tribunal if, in reaching its decision, it has committed jurisdictional error.  It is not jurisdictional error to make a wrong finding of fact.   It is difficult for appellants, concerned with the merits of their case, to understand this fundamental principle.  It is, however, the law and a hard reality that has to be applied by this Court. 

9. Emmett FM, in concluding that the Tribunal’s decision was not affected by jurisdictional error, said at [36]:

   The assessments of the Applicant’s credibility is a matter “par excellence” for the Tribunal. 

10. For this proposition, her Honour quoted Re MIMIA; ex parteDurairajasingham (2000) 168 ALR 407. The passage to which her Honour referred is contained in [67] where, in response to an allegation that the prosecutor for prerogative relief that the Tribunal had failed to set out reasons for finding that one of the claims of the prosecutor was “utterly implausible”, McHugh J said:

    … this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence.  If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”.  The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

11. Emmett FM concluded:

    The Tribunal’s rejection of the Applicant’s evidence where it did not accord with the independent country information was a finding open to the Tribunal on the evidence and material before it and for which it provided reasons. 

12. The Tribunal disbelieved the appellant, in particular her claim that she had given birth to three children and was thus exposed to the consequences of breaching the “one child” policy.  The Tribunal, in making that finding of fact, made a finding which was open to it on the evidence and material before it, and it did not commit jurisdictional error. 

13. Even if that finding was wrong, that would not provide a basis on which either the Federal Magistrates Court or the Federal Court on appeal could set aside the decision of the Tribunal. The appeal has to be dismissed.  

14. The Minister asks that the costs order the Court makes be fixed in the sum of $2,075.00.  I am satisfied that it is appropriate to fix the costs, and the sum sought by the Minister is reasonable, given the circumstances of this case. 

15. The orders of the court are that the appeal is dismissed, and the appellant is to pay the costs of the first respondent, fixed in the sum of $2,075.00.

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

Associate:

Dated:        28 November 2007

The Appellant appeared in person.
Counsel for the First Respondent:	R Francois
Solicitor for the First Respondent:	Clayton Utz Lawyers
Date of Hearing:	20 November 2007
Date of Judgment:	20 November 2007