SZCMU v Minister for Immigration
[2006] FMCA 117
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCMU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 117 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – Applicant a citizen of China who claims a fear of persecution as a Falun Gong practitioner – natural justice – independent country information – no procedural error – no requirement for independent country information to be given in writing to Applicant – no breach of s.424A of the Migration Act 1958 (Cth) – where typographical error in decision considered – typographical error held not to constitute jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178
Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1996] HCA 6
| Applicant: | SZCMU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 119 of 2004 |
| Delivered on: | 31 January 2006 |
| Delivered at: | Sydney |
| Hearing date: | 31 January 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
I DIRECT that a copy of this decision is to be brought to the attention of the Senior Member of the Refugee Review Tribunal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 119 of 2004
| SZCMU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 20th November 2003 after a hearing. The Refugee Review Tribunal handed down its decision on 16th December 2003.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 24th November 2002. On 13th December 2002 he applied for a Protection (Class XA) visa but this was refused on
23rd December. On 10th January 2003 the Applicant sought a review of that decision by the Refugee Review Tribunal.
The Applicant attended a hearing of the Tribunal on 18th November 2003 where he gave oral evidence. A Mandarin interpreter was provided. The Tribunal handed down its decision affirming the decision not to grant a protection visa to the Applicant.
The tribunal’s findings and reasons
In the Tribunal's findings and reasons, the Tribunal indicated to the Applicant that it was required to put independent country information to him and asked him to comment on nine separate points.
The Tribunal accepted that the Applicant was a Falun Gong practitioner but held that there was no credible or convincing information that he was anything more than an ordinary member. The Tribunal noted the Applicant's claim that he was a member of the armed forces but did not accept that he would embrace Falun Gong to the point that he would put his outstanding career at such great risk.
The Tribunal noted that the Applicant had not claimed that he was adversely affected with his employment or that he had any difficulty in departing China. The Tribunal made the comment at page 77 of the Court Book that where independent country information conflicts with that presented by the Applicant, the Tribunal preferred the independent country information. The basis of the Tribunal's adverse finding appears in two paragraphs of the decision at page 77, and I quote:
The entire claim contained in the application consists only of a number of assertions, with no convincing or credible supporting detail provided. The various versions of events presented to the Tribunal are on the balance of probabilities based on contrivance. The lack of detail and substance of the information before the Tribunal in supporting the application, the inconsistency of independent country information available compared with that provided by the Applicant, has led the Tribunal to the conclusion that the application is not genuine.
I note that there is a spelling error in the final sentence of that second paragraph.
Application for judicial review
The Applicant filed an Amended Application on 31st August 2004 containing two principal grounds: the first ground, that there was an error of law constituting a jurisdictional error, the particulars of which that the Tribunal's decision relied in part on independent country information regarding Falun Gong but the Tribunal failed to give him the complete independent country information which had been used as the reason. Again, the Applicant complained that the Tribunal failed to ensure that he would have full and complete understanding of the information that the Tribunal would use in its decision before and during the hearing. The third point is somewhat different, and I quote:
Even if the Tribunal mentioned very limited independent country information during the hearing, the Tribunal failed to pay attention to the fact that it is definitely impossible for the interpreter during the hearing to accurately translate those special terms of Falun Gong. Therefore it is obviously impossible for me to comment on the very limited information given by the Tribunal during a hearing.
The Applicant's second ground was that there was procedural error in the Tribunal's decision constituting an absence of natural justice. He complained that he did not think that the Tribunal had considered his claims fairly and he did not think that the Tribunal had given him a fair chance to provide complete oral evidence in support of his application during the hearing.
He also set out six other particulars, four of which to my mind are no more than an application for merits review, one of which refers to his claim that the Tribunal failed to consider the fact that he was in a particularly vulnerable situation when he prepared his application for a protection visa. He does not understand English. He is in an alien environment. He must experience serious difficulties of a technical and psychological nature. Therefore he claimed it was almost impossible for him to prepare a complete claim and application from the beginning. Again, the final point, he reiterated that the Tribunal failed to provide him with a complete copy of the negative information used to consider his claims and the Tribunal failed to provide a chance to comment on the negative information.
The Applicant gave oral submissions to the Court today. He was not legally represented but he had had legal advice from a lawyer on the panel after the First Court Date. The Applicant's oral submissions concerned two matters. First, he complained that the Tribunal did not give him an adequate opportunity to present his case. He said that the Tribunal Member constantly interrupted him and did not allow him a sufficient space to make the oral submissions and give the oral evidence which he needed.
The second point was that he complained about the interpreter at the hearing. He said that the interpreter did not have the ability to translate special Falun Gong terms and as such, he was then unable to comment on the terms that were used. He also complained about the interpreter's ability to translate from Mandarin into English and from English into Mandarin. Whilst he did not speak English, he felt that the words used by the interpreter did not correspond with the words used in the other language so that a lengthy statement appeared to be translated very simply. He also based this view on the fact that his statements to the Tribunal Member, when reflected back in further questions or comments by the Tribunal Member, bore little relation to each other and he was of the view that the meaning had somehow been lost in translation.
The Applicant also reiterated his claim that he was nervous and fearful at the hearing. He was new to Australia, did not speak the language and was not familiar with Australian procedures. He took the view that the Tribunal Member was very serious and forbidding and that her serious manner made him scared to express what he had to say. His final complaint in his oral submissions was that the Member did not know what her real opinion was, which caused him to be unable to express himself or provide adequate arguments to her. He was unable to debate against her he said.
I have read the Written Submissions prepared by counsel for the Respondent, Mr Potts. Dealing with the independent country information issue, he submits that s.422B of the Migration Act applies so that common law rules of natural justice are excluded. He referred to the decisions of SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 at [11]-[18] and also SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 at [29]. Even assuming such common law rules applied, he submitted that there was no evidence of any breach.
In fact the Tribunal put various mattes to him at the hearing for comment, including aspects of independent country information. There is some concession by the Applicant to that point in his Amended Application. He also points out that s.424A of the Migration Act does not apply to independent country information because the exception in sub‑s.424A(3)(b) applies. I refer to Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 and also VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11]-[16].
Turning to the Applicant's complaints about the interpreter at the hearing, the Applicant has not provided any evidence to substantiate that assertion. It would be necessary in my view, accepting counsel's submission, for a transcript to be provided along with evidence from an expert in the language concerned to show, first, that the information had not been accurately translated from one language to the other to such an extent that the Applicant was denied a fair hearing, and second, to show that the specific Falun Gong terms referred to had not been translated accurately or at all. Without that information, the claim relating to the alleged inadequacy of the interpreter must fail.
As to the Applicant's claim that he was not given a fair chance to provide complete oral evidence, again a transcript of the hearing should have been provided. The Applicant did have the benefit of legal advice in mid‑2004 and it would have been possible for a transcript to be prepared from a tape of the hearing. That way it would be possible to see whether in fact the Tribunal Member did constantly interrupt the Applicant and did or did not provide him with adequate opportunity to express his views. The Applicant did not complain to the Tribunal Member that she was not allowing him a chance to give his views any more than he did not complain about the inadequacy of the interpreter.
The Applicant's claim that the Tribunal Member erred in law by not revealing to him what her opinion was so that he could debate with her does not constitute proof of any jurisdictional error. It is trite law that a decision-maker is not required to reveal his or her thought processes when hearing and considering the evidence of an applicant.
As to the Applicant's nervousness and strangeness in an alien environment before the Refugee Review Tribunal, the comment should be made that that situation goes with the territory. Applicants before the Refugee Review Tribunal are invariably and by definition non‑citizens of Australia, most of whom do not have adequate language skills and the vast majority of whom would have no experience of the migration system or of the Australian legal system. It is to be hoped that Members of the Refugee Review Tribunal would be well prepared to deal with people who were nervous or anxious or unfamiliar with the surroundings in which they found themselves in Australian society in general and in the Tribunal hearing in particular. That is one reason why there are migration agents, so that they can assist their clients through the difficulties of a Tribunal hearing.
The Applicant's claims in many events or in many cases do no more than challenge the factual findings and assert that the Tribunal should have accepted his evidence. It is well accepted, and I refer to the decision of Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1996] HCA 6 , that the Tribunal is the arbiter of the facts and the Court does not conduct a merits review. In other words, the Court does not reconsider the factual evidence and substitute its own conclusions for the factual conclusions arrived at by the Tribunal. As long as there is evidence to support the findings made by the Tribunal, the Court cannot and will not interfere. The Applicant has spoken of his difficulties at the hearing and his inability to understand the law and marshal his thoughts to present his case accurately. That is regrettable but not uncommon.
There is one other issue which needs to be referred to. At page 77 and page 78 of the Court Book there are two conflicting conclusions. The conclusion at page 77 says this, and I quote:
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
On the next page, however, there is another conclusion which is completely at odds with the earlier conclusion:
The Tribunal is satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the Applicant satisfies the criterion set out in s.36(2) of the Act for a protection visa.
The Tribunal's decision was to affirm the decision not to grant a protection visa and the Tribunal's findings and reasons make it quite clear that it was always the intention of the Tribunal to affirm the decision not to grant a protection visa after having considered all of the evidence.
It is clear that the second conclusion at the top of page 78 of the Court Book is no more than a typographical error. Clearly, in the world of computers in which we live, at times Tribunal Members undertake what is known as "cutting and pasting" and this paragraph may well have been left in on a template. It is not hard to understand how that error has occurred. It is impossible, however, to excuse it.
The incorrect and totally confusing conclusion appears at the top of page 78, the very same page which the Tribunal Member signed on 20th November 2003. It raises the inference that the Tribunal Member either did not check the decision or did so in such a negligent and slapdash way that she completely missed this confusing and misleading paragraph. I am supported in this view by the fact that a spelling error has been allowed to remain in the third-last paragraph of page 77 where the word "lead" has been left in rather than the word "led". That may be no more of an indication that the Tribunal Member's spelling was inadequate, but the egregious error in the issue of the decision is a matter which to my mind should be brought to the attention of the Principal Member of the Refugee Review Tribunal.
I would make it clear that if there had not appeared the paragraph containing obviously the correct conclusion at the bottom of page 77 of the Court Book so that the only conclusion left was the incorrect one,
I would have entertained a serious notion of sending the decision back to the Tribunal. I am satisfied, however, from the text of the decision that the Tribunal Member arrived at the conclusion that the Tribunal was not satisfied that the Applicant satisfied the criterion set out in sub-section 36(2) for a protection visa and the decision should be allowed to stand. Nevertheless, I think that a greater degree of checking is needed in the future.
I would also note that when this application was filed, the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 had not been handed down and it is appropriate that I should grant leave to join the Refugee Review Tribunal as Second Respondent to the application.
The application will be dismissed as I am satisfied that there is no jurisdictional error. A typographical error of this nature is not a jurisdictional error where the meaning is clear. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his case and in my view the successful respondent should be entitled to a costs order. The amount sought is $5,000.00, which is inclusive of counsel's fees. That is a figure which to my mind is well within the scale provided by Schedule 1 of the Federal Magistrates Court Rules. This was an appropriate matter for counsel to be briefed and I certify for counsel according to the rules.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 1 February 2006
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