SZBTK v Minister for Immigration - [2005] FMCA 1263

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBTK v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1263

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China on the basis of imputed Falun Gong allegiance – whether the RRT breached s.424A of the Migration Act 1958 (Cth) considered – whether the RRT hearing was unfair because the applicant was given a Mandarin rather than a Fujian interpreter considered – no reviewable error found – application dismissed.

Migration Act 1958, s.424A

Minister for Immigration v NAMW [2004] FCAFC 264
SAAP v Minister for Immigration [2005] HCA 24
VEAJ v Minister for Immigration [2003] FCA 678
WAJW v Minister for Immigration [2004] FCAFC 330

Applicant:

SZBTK

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2284 of 2003

Judgment of:

Driver FM

Hearing date:

2 September 2005

Delivered at:

Sydney

Delivered on:

2 September 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Dr M Allars

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2284 of 2003

SZBTK

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 3 September 2003 and handed down on 30 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon the attribution of Falun Gong allegiance to him. The relevant background facts are set out in paragraphs 2.1 to 2.3 of Dr Allars’ written submissions. I adopt that material as background for the purposes of this judgment:
The applicant, who is a citizen of the People’s Republic of China (“the PRC”), sought a protection visa on the ground that he had a well founded fear of persecution on the ground that he was a Falun Gong “learner” and the PRC government considered Falun Gong to be an anti-government organisation.
The RRT accepted the applicant’s evidence as to his claimed actual name and that he was a citizen of the PRC. However the RRT:
i)found that the applicant did not present his claims consistently or truthfully;[1]
ii)was not satisfied as to the applicant’s general credibility because he presented few claims to the Department, introduced many of his claims at the hearing and indicated at the hearing that many of the claims to the Department and the Tribunal were false;[2]
iii)found that the applicant claimed to have been involved in a Falun Gong exercise group in May and July 2001, a time when the PRC government had succeeded in preventing public displays of Falun Gong activities;[3]
iv)did not accept that the applicant would have been able to participate in Falun Gong activities in 2001 in a park in Tianjin without immediately attracting the adverse attention of the PRC authorities, and found that the applicant fabricated this claim;[4]
v)did not accept as credible the claim that the authorities targeted and detained him in June and September 2001, because it was only active Falun Gong practitioners or political opponents of the PRC government who were targeted, and found this claim was fabricated;[5] and
vi)found that the applicant was not a Falun Gong practitioner, had no knowledge of how to be one and had indicated he had no interest in Falun Gong activities.[6]
The RRT concluded that the applicant was not a person to whom Australia has protection obligations.[7]
[1] Court Book (“CB”) 75.8.
[2] CB 76.8.
[3] CB 77.2.
[4] CB 77.3.
[5] CB 77.5.
[6] CB 77.10 – 78.1.
[7] CB 78.3.
The applicant relies upon his amended application filed on 28 September 2004. In that application the following jurisdictional errors are alleged. First, an error of law in that the RRT did not notify the applicant of country information to be relied upon by the RRT. Secondly, asserted procedural unfairness in the manner in which the RRT considered the applicant's claims and in relation to language difficulties experienced by the applicant at the hearing conducted by the RRT.
There is no substance to the first asserted jurisdictional error. I agree with and adopt for the purposes of this judgment paragraph 3.1 to paragraph 3.7 of Dr Allars’ written submissions:
Ground 1 claims that there was an error of law in the RRT’s decision, constituting a jurisdictional error. Particular (a) to Ground 1 alleges that the RRT relied mainly on independent country information that it is only active Falun Gong practitioners or political opponents of the PRC government, who are targeted by the authorities. Particular (b) alleges that the RRT failed to provide this information to the applicant or clearly indicate to him that it would be used as one of the main reasons in its decision or to provide him with a fair opportunity to make comment on the information. Particular (c) makes a similar claim to particular (b), adding that the RRT failed to ensure that the applicant fully and completely understood the information that would be used in the decision before and during the hearing.
Ground 1 appears to amount to a claim that the RRT failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to country information about Falun Gong in the PRC.
The RRT took into account country information about the approach taken by the PRC government to Falun Gong activities from 1999 to 2001.[8] The RRT put to the applicant at the hearing the information that by 2001 the government did not permit Falun Gong activities in Tianjin or elsewhere in the PRC.[9] The RRT member explained to the applicant that on the basis of this information it did not accept his claim that he was able to attend forty Falun Gong sessions in a Tianjin public square in 2001.[10] The RRT also put to him the country information that a Falun Gong practitioner lacking a profile would not be of interest to the authorities.[11]
Since s 424A(1) of the Act applies where the RRT itself considers that information is a reason or part of the reason for its decision,[12] it is necessary to look at the RRT’s expressed reasons for its decision, in order to decide whether it considered any of the information in question to be a reason or a part of the reason for affirming the delegate’s decision.
The applicant’s claim is confined to a claim that country information was not disclosed to him. General country information falls within an exception to the duty under s 424A(1). Section 424A(3)(a) of the Act excepts from the duty of disclosure information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. In Minister for Immigration v NAMW[13] the Full Federal Court held unanimously that the reference in s 424A(3)(a) to the class of person is a provision designed to underline the specificity required.[14] General country information therefore falls within the exception in s 424A(3)(a). That was the approach taken by the Full Court in WAJW v Minister for Immigration.[15]
There is no basis for application of the principle set out in SAAP v Minister for Immigration[16] as to the construction of s 424A(1). The RRT’s reasons do not indicate that it took into account any information which was specifically about the applicant or another person, other than that provided by the applicant. In the application for the protection visa the applicant claimed in a few sentences that he was a Falun Gong learner and that the PRC government regarded Falun Gong as an anti-government organisation, so that he would be put into prison and his country would not protect him.[17] The applicant made no claim to have suffered any harm or that a specific incident affected him. The only evidence provided was his passport. The application for review by the RRT simply stated that the applicant could not agree with the delegate’s decision.[18] The RRT accepted the evidence he gave at the hearing as to his real name and that he was a truck driver. The RRT’s adverse credibility findings were based upon inconsistencies in the applicant’s evidence given at the RRT hearing, his failure to demonstrate any knowledge of Falun Gong and the inconsistency of his claims with country information. This is not a case where information specifically about the applicant which was not given by him for the purpose of the application for review by the RRT was a reason or part of a reason for the RRT’s decision.
The applicant has not established any non-compliance with s 424A(1) of the Act. The claims made in particulars (b) and (c) that the RRT failed to explain the country information to the applicant, even if established on a factual basis, which the respondent denies, cannot constitute non-compliance with s 424A(1) since this provision does not apply.
[8] CB 70.5-73.3.
[9] CB 74.7.
[10] CB 74.7.
[11] CB 74.8.
[12] VEAJ vMinister for Immigration [2003] FCA 678 at [41].
[13] [2004] FCAFC 264 at [66] – [71] per Beaumont J, at [138] per Merkel and Hely JJ.
[14] [2004] FCAFC 264 at [126].
[15] [2004] FCAFC 330 at [44] – [46] per R D Nicholson, Jacobson and Bennett JJ. See also MZWBW vMinister for Immigration [2005] FCAFC 94 at [10] – [12].
[16] [2005] HCA 24.
[17] CB 7-9.
[18] CB 51.
The asserted denial of procedural fairness in relation to the consideration of the applicant’s claims suffers from a number of problems. The asserted ground of review is rather poorly particularised in the application. The asserted unfairness in the manner in which the RRT considered the applicant's claims could well be an allegation of a constructive failure to consider some part of his claims. In that case I would not regard it as an allegation of procedural unfairness. Whether the allegation is in truth one of constructive failure or one of procedural unfairness it has no evidence to support it.
Directions in this matter were given by Registrar Hedge on 10 March 2004. The applicant attended in person with the assistance of a Mandarin interpreter. He consented to a series of orders which relevantly included orders that he serve an amended application giving particulars and any evidence on which he wished to rely before 29 April 2004. The applicant complied with the order for amended application, albeit rather late. I take it from that that he understood the order. He has not filed any evidence in support of his amended application. The only evidence I have before me is the court book filed on 28 April 2004 and a bundle of additional documents tendered by Dr Allars today which became exhibit R1.
There is nothing in the available evidence to support a contention that the consideration of the applicant's claims specified in the particulars to his amended application was in some way unfair. Neither is there anything to support the contention, if it is made, that there was a constructive failure on the part of the RRT to consider some part of the applicant's claims.
The remaining allegation in the amended application is that the RRT proceeding was unfair because the applicant experienced language difficulties. I accept that under the general law procedural unfairness may result from inadequacy in interpretation in a tribunal proceeding. It was not clear on the face of the amended application what the problem was that the applicant is asserting. He explained in oral argument that the problem was that he comes from Fujian Province and his first language is the Fujian dialect. He explained that the Fujian dialect is as different from Mandarin and Cantonese as Mandarin and Cantonese are from each other. At the RRT hearing the applicant was assisted by a Mandarin interpreter as he was in this Court. I did not perceive that the applicant encountered any difficulty in the hearing before me. However, he asserted in oral argument that he experienced difficulty at the RRT hearing. In his original protection visa application (court book, page 2) the applicant stated that he speaks, reads and writes “Chinese”. In his review application to the RRT (court book, page 50) the applicant requested a “Chinese” interpreter. He would have had a further opportunity to clarify his need for an interpreter in responding to the hearing invitation that was contained in the letter dated 2 June 2003 (court book, pages 56 and 57). The applicant told me from the bar table that he failed to return the form enclosed with that hearing invitation.
It appears from what the applicant told me from the bar table and the documents comprising exhibit R1, as well as the green book, that the applicant either received the hearing invitation very late or reacted to it very late. He spoke to someone at the RRT and the hearing was delayed for one day. I pointed out to the applicant in oral argument that it appears that there was no indication made to the RRT that the applicant required anything other than a Mandarin interpreter. He confirmed obliquely that this was so. He stated that up to the time of the RRT hearing he did not understand that it was possible to have a Fujian interpreter. However, he found out some time after the RRT hearing that some Cantonese interpreters are fluent in the Fujian dialect.
While I accept that that may be so and while I accept that the applicant might have been better served by a Cantonese interpreter fluent in the Fujian dialect I see no breach of the RRT procedural fairness obligations under the general law or pursuant to s.425 of the Migration Act. First, the applicant did not tell the RRT that he required a Fujian interpreter. Through his claims to speak “Chinese” he led the RRT to believe that what was required was a Mandarin interpreter. The RRT met its obligations to provide interpretation as best it was able on the information before it. Secondly, the applicant does, in fact, understand and speak Mandarin. There is nothing in the available evidence to indicate that there was any disadvantage suffered by the applicant at the RRT hearing. The applicant simply makes the bare assertion, unsupported by any evidence, that he was disadvantaged. In the absence of any supporting evidence this ground of review must fail.
I find that there was no jurisdictional error in the decision of the RRT. The RRT decision is therefore a privative clause decision and the application for judicial review must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,500. The applicant did not wish to be heard on the question of costs. The Minister's costs are in the region of $5,000 on a solicitor and client basis. On a party/party basis, in my view, the sum of $4,000 would be adequate recompense.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000. I need to join the RRT as a second respondent and I will so order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 September 2005