SZSMC v Minister for Immigration and Border Protection
[2013] FCA 1205
•14 November 2013
FEDERAL COURT OF AUSTRALIA
SZSMC v Minister for Immigration and Border Protection [2013] FCA 1205
Citation: SZSMC v Minister for Immigration and Border Protection [2013] FCA 1205 Appeal from: SZSMC v Minister for Immigration & Anor [2013] FCCA 575 Parties: SZSMC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1294 of 2013 Judge: KATZMANN J Date of judgment: 14 November 2013 Cases cited: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
O’Brien v Komesaroff (1982) 150 CLR 310
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158Date of hearing: 14 November 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Solicitor for the Second Respondent: The Second Respondent filed a submitting notice
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1294 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSMC
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
14 NOVEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1294 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSMC
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE:
14 NOVEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of the People’s Republic of China (“PRC”), who claims to fear persecution in her country of nationality on religious grounds. She professes to be a devoted follower of Yi Guan Dao, a religion outlawed in the PRC. She applied to the first respondent (“the Minister”) for a protection visa but the Minister’s delegate rejected her application. She sought review by the second respondent (“the tribunal”) but, following a hearing, the tribunal affirmed the delegates’ decision. The tribunal did not accept that her claim was genuine and rejected most of what she had to say. The appellant then sought constitutional writs in the Federal Circuit Court to quash the tribunal’s decision and require the tribunal to rehear and re-determine her review application but she failed there, too. This is an appeal from that judgment.
The relevant factual and legislative background is adequately summarised in the judgment of the Federal Circuit Court. There is no need to repeat it here.
The notice of appeal contains a single ground. It recites: “The Court made a wrong Judgement on my credibility”. The appeal must be dismissed, if for no other reason than the Court did no such thing. If, on the other hand, the attack is intended to be an attack on the decision of the tribunal, the outcome must be the same, for the only avenue for setting aside the tribunal’s decision is for jurisdictional error and, without more, there is no jurisdictional error in making a wrong finding on credibility.
As the Minister put it in his submissions, picking up the oft-repeated statement in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67], credibility findings are findings of fact for the tribunal to make “par excellence”.
Furthermore, the point on appeal was not raised in the court below. That means that the appellant requires leave to make it and leave should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310 at 319. In circumstances such as this, where the point has no merit, leave should be refused. As the Full Court observed in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48]:
The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.
I would therefore refuse the appellant leave to raise the sole ground of appeal. It is hopeless.
The appellant filed no written submissions. When invited during the hearing to present oral argument in support of her appeal, she declined to do so.
In the Federal Circuit Court the appellant’s case was that the tribunal had constructively failed to exercise its jurisdiction in that it asked itself the wrong question concerning her claim to be a Yi Guan Dao adherent and practitioner. Particulars were given of the claim in the appellant’s amended application. They are set out in full in para 26 of the primary judge’s reasons. The wrong question was said to be: “Do the responses the applicant gives to my questions about Yi Guan Do accord precisely with my text?”. The nub of the case was that the tribunal had adopted an arbitrary standard of knowledge of the religion and because the appellant did not measure up to that standard, dismissed her claims.
The primary judge held that on a fair reading the tribunal’s reasons did not support the applicant’s contentions and that there was no jurisdictional error. Her Honour noted the general remarks of Kenny J in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [37]‑[38], which are especially apt in this case, but distinguished the case on its facts. The primary judge held that there was no jurisdictional error and therefore that the court had no jurisdiction to interfere with the tribunal’s decision. To succeed on the appeal the appellant must show that her Honour fell into error. There is no reason to doubt the correctness of her Honour’s judgment.
I am bound, therefore, to order that the appeal be dismissed. There is no reason that the usual order as to costs should not be made, that is, that costs follow the event. Accordingly, I order that the appeal be dismissed and that the appellant pay the first respondent’s costs
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 19 November 2013
0
5
0