SZEQV v Minister for Immigration
[2005] FMCA 404
•17 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQV v MINISTER FOR IMMIGRATION | [2005] FMCA 404 |
| 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 – assessing the weight and the credibility of the evidence is a task for the Tribunal – no reviewable error. |
| Migration Act 1958 (Cth) s.429 |
| Abebe v Commonwealth (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZEQV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3267 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 March 2005 |
| Date of Last Submission: | 17 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2005 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs of this application fixed in the sum of $5,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3267 of 2004
| SZEQV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 28 October 2004. That decision affirmed the decision of a delegate of the minister not to grant a protection visa to the applicant.
The applicant lodged an application for a protection visa on
9 September 2004. This was his second application and the minister had allowed him to lodge that application under s.48B of the Migration Act. A delegate of the minister considered that application on
15 September 2004.
Unfortunately for the applicant the delegate refused to grant a protection visa. The applicant then applied for a review to the Refugee Review Tribunal. When the applicant applied for a protection visa he submitted a statutory declaration. In that declaration he said that he was born on 2 March 1959 in Beijing in China. He said that in
May 1989 he became involved in the pro democracy movement. He said that he had participated in three demonstrations. He said that he was opposed to the corruption of the communist party. He worked to end the dictatorship of the party because there was no freedom, no human rights and no democracy in China.
He said that after the Tiananmen Square massacre he was persecuted in his work unit. He was arrested by the police and he was interrogated. He had disciplinary action taken against him in his work. Eventually in about 1995 he was told to leave his employment and find another job. He was labelled a counter-revolutionary and treated unfairly.
Eventually, he obtained casual employment. He said that between 1995 and 2001 he did not participate in any activities because it was dangerous. In May 2001 he went to South Korea for three days for a vacation. He said that he decided to give information to the American Embassy in South Korea. He said that when he returned to China he was very scared. He felt that if the authorities found out what he had done he would be sentenced to death.
He left China and travelled to Australia on a tourist visa. He consulted a migration agent called Jack Meng. The applicant says that Mr Meng did not treat him honestly and fairly. He paid Mr Meng sums of money but the applicant said that Mr Meng did not do what he had promised he would do.
Eventually, on 9 May 2003 immigration officers arrested the applicant. He was placed in immigration detention. He was detained because he did not hold a valid visa. He remained in detention for some period of time for these reasons. He has said that he cannot return to China because he fears he will be sentenced to death.
The applicant appeared at the tribunal and gave evidence with the aid of an interpreter. The applicant had asked for a female interpreter because he was told that that would please the tribunal member. The tribunal asked him why he had requested a female interpreter. The applicant gave his reasons and he now says that at that time he did not feel the interpreter translated his words accurately. He said he was very stressed at the tribunal hearing. The applicant brought two people with him to act as observers of the hearing. The tribunal member asked those people to leave but the applicant said he did not know why they were required to leave. This also caused him some stress.
The tribunal considered a number of documents submitted to it. One of those documents was a translation of a document written in Chinese. The title of that document is:
How I formed my political views different from that sanctioned by the Chinese communist party.
There were also other documents received by the tribunal. Those documents were submitted between 13 and 20 October. The applicant gave evidence before the tribunal on 20 October. The tribunal asked the applicant a number of questions about his evidence. The applicant replied to those questions and said that he continues to oppose the communist party's one party control and corruption in China.
The tribunal asked the applicant about his dealings with Mr Meng the migration agent. The tribunal then gave its findings and gave reasons for those findings. I note that at page 274 of the Court book the tribunal says that the applicant gave his oral evidence in a confident and very pleasant and polite manner. Despite this the tribunal did not accept some parts of the applicant's oral evidence. The tribunal said on page 274 that:
On occasions the tribunal found him to be non responsive to straight forward questions.
The application has told the Court today and has made that point in his statement that he believed that there was a problem with the ability of the interpreter that he had on the last occasion. The tribunal found that a number of the applicant's claims were not credible. The tribunal did not believe that the applicant provided information about the Chinese government to the American Embassy in South Korea. The tribunal did not accept his explanation as to why he would do this and did not believe that he had done it at all. The tribunal did not think it credible that the applicant would not have sought protection either from the South Korean authorities or the American Embassy.
The tribunal did not believe some aspects of the applicant's story about his relationship with the migration agent Mr Meng. Unfortunately for the applicant, the tribunal concluded that his claims had been invented. The tribunal did not consider that the applicant held particular political opinions critical of the Chinese government nor did the tribunal believe that the applicant had engaged in any political activity in China. The tribunal did not believe that the applicant gave information to the American Embassy in South Korea. In short, the tribunal was not satisfied that the applicant had a well founded fear of persecution in China.
The applicant brought an amended application which was filed on
23 February. Attached to that application is a typed statement. I have read through that typed statement thoroughly. In the statement the applicant sets out what happened at the tribunal hearing. I do not consider that the applicant's description of the tribunal hearing shows any form of bias or unfair treatment towards him. In paragraphs 2 and 3 and 4 of the statement the applicant refers to matters of fact which the Refugee Review Tribunal did not accept or did not accept entirely. In paragraph 5 the applicant describes how he told the tribunal member about going to the American Embassy in Seoul, South Korea. He said that he was unable to seek protection due to the language barrier. He criticised the tribunal member for not putting her feet in his shoes or considering his political situation.
He pointed out that he only had a limited amount of time in South Korea. In paragraph 6 the applicant sets out what happened to him after he was taken to the immigration detention centre on 9 May 2003. In paragraph 7 he sets out that 4 June 2003 was the 15th anniversary of the June 4 movement. He referred to his experiences with the
June 4 movement and referred to the:
Unforgettable June 4, 1989.
He sets out that his political opinions are unchanged and that he left China and travelled to Australia to pursue his beautiful dream of real democracy, freedom, human rights and the legal system. He sets out that in China he studied law for several years. He expresses a wish to write and contribute to Australian society. He says that he cannot accept the decision made by the Refugee Review Tribunal member. He says that the Refugee Review Tribunal member applied Australian laws without appreciating, understanding or sympathising with his several tens of years of distinct political opinions.
He believes that the Refugee Review Tribunal member applied laws inappropriately to his case. He believes that the Refugee Review Tribunal member held some form of prejudice because of her own personal views. He asks to be accepted as a dissident in this country and contribute to Australia. He described Australia as a wonderful country and said that he loved Australia very much.
The applicant also filed an affidavit from 23 February 2005. Annexed to that affidavit is a copy of his document called:
How I formed my political views different from that sanctioned by the Chinese communist party.
A copy of that document was considered by the Refugee Review Tribunal. The counsel for the minister objected to the affidavit but I allowed the affidavit to be considered.
I have also read the respondent's outline of submissions. In those submissions counsel for the minister refers to the content of the affidavit as being clearly inadmissible. As I have said, I have already overruled that objection and allowed the affidavit into evidence. The respondent's submission also summarises the applicant's statement. The respondent says that most of the matters contained in the applicant's statement go to the questions of the merits of the tribunal decision. The respondent says that there was no jurisdictional error shown by the fact that the tribunal asked the two observers to leave the hearing and asked the applicant why he had requested a female interpreter.
The respondent refers to s.429 of the Migration Act and says that tribunal hearings are required to be private. The respondent refers to the claim by the applicant that his communication may have been affected by the lack of proficiency on the part of the interpreter. The respondent says that the applicant has not established that the interpreter made any errors let alone any errors which were sufficient to establish jurisdictional error. The respondent also says that there is no evidence that the tribunal failed to consider the material submitted by the applicant. The respondent submits that the reasons given by the tribunal show that the tribunal did have regard to all of the material before the tribunal. Finally, the respondent says there is no basis for finding that the tribunal was biased against the applicant.
I have considered all of the evidence. I have formed a view that the applicant appears to be a pleasant, well educated, well dressed and intelligent man. He has conducted himself in this hearing with great politeness and great dignity. What needs to be made clear is that these proceedings are proceedings for judicial review of the tribunal decision. It is well established by authority that in judicial review the Court does not reconsider the merits of the factual decisions. The question of assessing the weight of factual evidence and assessing the credibility of the applicant is purely a task for the tribunal. I refer to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Even if the tribunal makes a factual mistake in its consideration of the factual evidence, that is not a ground for finding a jurisdictional error. I refer to Abebe v Commonwealth (1999) 197 CLR 510. The task of a Court conducting judicial review is to consider whether or not there has been a jurisdictional error. Jurisdictional error can include actual bias or apprehended bias. Jurisdictional error can include failure to take relevant matters into consideration or considering irrelevant matters. Jurisdictional error can include failure to provide natural justice or failing to provide procedural fairness. Jurisdictional error can include a failure by the tribunal to understand the issues that are before the tribunal but the task of assessing the factual information and the credibility of a witness is a task entirely for the tribunal.
The Court does not substitute its own view of the factual evidence or the conclusions to be drawn from that evidence for the decision of the tribunal. I have considered the tribunal decision very carefully. The situation seems to me that the tribunal just did not accept some important parts of the applicant's evidence. Unless that evidence was accepted the applicant's case could not be established. The task of considering and assessing the evidence is entirely a task for the tribunal.
I am not satisfied that there is any evidence that the tribunal acted in a biased way. I see no evidence of either actual bias or apprehended bias. The fact that the tribunal member asked the two observers to leave the hearing room is explained by the fact that tribunal hearings are conducted in private under s.429 of the Migration Act. If the tribunal member did not explain this to the applicant that may well have caused him some confusion. It may even have caused him some anxiety. If she did not explain that to the applicant that is regrettable. It does not however amount to jurisdictional error.
The tribunal member was entitled to ask why the applicant had requested a female interpreter. There is nothing in the tribunal decision to show that the applicant's answer to that question had any effect on the decision made by the tribunal. I hope I have made it very clear in these proceedings that the Court does not care whether an interpreter is male or female as long as the interpreter is capable of doing his or her job.
I have conducted my own investigation of the evidence before me to see whether there is any sign of procedural unfairness or denial of natural justice. I have not been able to find any of such things. The applicant was invited to a hearing and he attended. He submitted a variety of documents beforehand. Those documents have been translated into English.
When the applicant attended the tribunal he gave oral evidence. He gave evidence through an interpreter. The applicant is critical of the interpreter's competence in those proceedings before the tribunal. There is no evidence of any failure by the interpreter to interpret the applicant's answers correctly. The applicant certainly feels that the interpreter may not have interpreted his words correctly but there is no evidence capable of proving that before the Court today.
The decision of the tribunal shows that the tribunal did read and consider all of the documents that the applicant submitted. The decision also shows that the tribunal considered the oral evidence given by the applicant. It is clear from the decision that on a number of occasions the tribunal member asked the applicant some questions about his evidence. The tribunal member is entitled to do this.
Where the tribunal has some doubts or concerns about parts of the evidence of the applicant it is proper for the tribunal to bring those doubts or concerns to the applicant's attention. In this way, the applicant is given an opportunity to explain why he believes that the tribunal's doubts or concerns are not relevant or non existent. The tribunal may accept that explanation or the tribunal may not. The fact remains that in this case the tribunal did not accept the applicant's account of a number of factual matters.
The tribunal made certain findings and gave reasons for those findings. There was evidence before the tribunal that allowed the tribunal to make those findings. The fact that a Court may not have made the same factual findings is not relevant to these proceedings. The Court is not entitled to substitute its own view of the facts for the view of the tribunal.
The applicant is quite clearly an intelligent and well educated man. He appears to be a polite and very personable man. Unfortunately for him, the tribunal did not accept his evidence on a number of important points. There is no reviewable error. As there is no reviewable error I am obliged to dismiss the application. The application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 1 April 2005
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