SZOAB v Minister for Immigration and Citizenship

[2010] FCA 548

FEDERAL COURT OF AUSTRALIA

SZOAB v Minister for Immigration and Citizenship [2010] FCA 548

Citation:		SZOAB v Minister for Immigration and Citizenship [2010] FCA 548
Appeal from:		SZOAB v Minister for Immigration and Citizenship & Anor [2010] FMCA 46
Parties:		SZOAB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 130 of 2010
Judge:		SPENDER J
Date of judgment:		12 May 2010
Cases cited:		Waterford v Commonwealth of Australia (1986) 163 CLR 54 cited NAOA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 241 cited
Date of hearing:	12 May 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 130 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZOAB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	12 MAY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the costs of the first respondent, fixed in the sum of $1,860.00

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 130 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZOAB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	12 MAY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Nicholls FM given on 25 January 2010:  SZOAB v Minister for Immigration and Citizenship & Anor [2010] FMCA 46. The appellant is a female citizen of the People’s Republic of China, born in 1967. She arrived in Australia on 28 July 2007.

2. On 21 November 2008, she lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application on 26 January 2009.  She sought a review from the Refugee Review Tribunal on 21 February 2009.  The Tribunal affirmed the delegate’s decision on 5 May 2009.  That decision was quashed by the Federal Magistrates Court by consent on 27 July 2009, and the matter was returned to the Tribunal for reconsideration. 

3. On 13 October 2009 the Tribunal again affirmed the decision of the delegate.  The appellant filed an application for review in the Federal Magistrates Court on 6 November 2009.  There were two grounds articulated in that application.  First, that the Tribunal made a mistake when it decided that the Fujian police were more liberal in their attitudes to underground Catholics in the Fujian province, and in rural areas in Fujian, than police in other Chinese provinces.  This was part of the reason that the Tribunal member did not believe that she had been detained by police in 2007.

4. The second ground was that:

   [T]he Tribunal came to a wrong conclusion when it decided that, during a recent visit to my home, and reported by my husband, the police did not ask about me. 

5. As Waterfordv Commonwealth of Australia (1986) 163 CLR 54 makes plain, it is no error of law to make a wrong finding a fact. Both the grounds before the Federal Magistrate alleged that the Tribunal made a mistake, or the Tribunal came to a wrong conclusion. The Federal Magistrate found that the first ground seeks an impermissible merits review, and the second ground represented an impermissible challenge to a finding of fact which the Tribunal made.

6. The appeal to this Court contains two grounds.  The first is that the Federal Magistrate failed to find that the Tribunal was mistaken when it decided that the Fujian police were more liberal in their attitudes to underground Catholics than in other areas, and that this formed part of the reason why the Tribunal decided the appellant had not been detained by police in 2007. 

7. Again, as is not unusual in appeals to this Court, the appellant is unaware of the small area in which an appeal can properly be prosecuted; that there is no room either in the Federal Magistrates Court or in this Court for merits review; that what has to be demonstrated is jurisdictional error in the Tribunal and the failure by the Federal Magistrate to find that jurisdictional error.  There is no error, let alone jurisdictional error, in the Tribunal making a wrong finding of fact, even if that is what the Tribunal in fact did. 

8. The Federal Magistrate, at [55] of his reasons, noted that the appellant complains that the Tribunal did not believe her.  As the Federal Magistrate explained, the Tribunal is not compelled to accept what an applicant tells it. 

9. At [57], the Federal Magistrate said:

   In the absence of anything further provided by the applicant, her bare assertion that the Tribunal did not believe her, in relation to some aspects of her factual claims, does not, in the circumstances before the Court, reveal error on the part of the Tribunal.

10. The Federal Magistrate found that the relevant findings made by the Tribunal were reasonably open to it to make on what was before it, and the Tribunal gave reasons for those findings and “therefore no error is revealed in that regard” [58]. There is no error revealed in the findings by the Federal Magistrate as asserted in ground one of the appeal to this court.

11. The second ground alleges that the Federal Magistrate failed to consider the appellant’s claims that she did not understand what the Mandarin interpreter said during the hearing.  The appellant says that there was a communication problem between the appellant and the Tribunal member. 

12. At [64] of the Federal Magistrate’s decision, the Federal Magistrate said:

    … I note that even if the applicant was seeking to allege some deficiency in the level of interpretation at the Tribunal hearing, then such a complaint would not succeed before the Court.

13. The Federal Magistrate continued, at [65]:

    … despite the opportunity given to the applicant at the first court date, there is no evidence before the Court that any difficulty with the interpreter at the Tribunal hearing was encountered by the applicant.  Without such evidence (for example, by way of a transcript of the Tribunal hearing) this Court cannot make assumptions about what may otherwise have occurred at the Tribunal hearing.

14. The Federal Magistrate cited NAOA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 241.

15. At [67] and [68] of the Federal Magistrate’s judgment, there is a reference to [60] of the Tribunal’s decision, which appears at page 133 of the appeal book to this Court.  That paragraph states:

    The Tribunal outlined the proceedings to the applicant and the applicant confirmed that she understood the interpreter.  The Tribunal explained to the applicant that she had already given evidence to the Tribunal previously (differently constituted), the Tribunal did not need to question her extensively.  The Tribunal explained that if she wished to tell the Tribunal about any matter she should do so as it was her opportunity to tell the Tribunal anything she would like to about her case.

16. At [68], the Federal Magistrate said:

    …[W]hat follows in the Tribunal’s account reveals a responsiveness by the applicant to the Tribunal’s questions, such that no difficulty with the level of interpretation is revealed.

17. The Federal Magistrate concluded, in paragraph [69]:

    In all, therefore, even if the applicant was able to properly explain to the Court the exact nature of the complaint, and even if she sought to put to the Court that she experienced some difficulty with the level of interpretation at the Tribunal hearing, for the reasons I have given, it would not succeed.

18. It follows, in my judgment, that the second ground of appeal, namely, that the Federal Magistrate failed to consider the applicant’s claims about the interpretation during the hearing, cannot be made good in the light of the Federal Magistrate’s findings concerning the appellant’s claims about the interpreter.  The Federal Magistrate did not fail to consider the appellant’s claims in that regard.  In fact, the Federal Magistrate went to some length to refer to those claims and, for the reasons which he expressed, rejected those claims. 

19. This is another case where, on an appeal, the appellant fails to appreciate that there is no power in this court, or in the Federal Magistrates Court, to engage in merits review, nor does the appellant seem to appreciate that there is no jurisdictional error made by the Tribunal, even if it makes a wrong finding of fact. 

20. For these reasons, the appellant’s appeal to this Court is dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:       31 May 2010