SZEXC v Minister for Immigration
[2005] FMCA 93
•2 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEXC v MINISTER FOR IMMIGRATION | [2005] FMCA 93 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Falun Gong practitioner – procedural fairness – failure to exercise jurisdiction – fact-finding – adequacy of interpretation – no error of law – privative clause decision – application dismissed. Migration Act 1958 (Cth) Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 |
| Applicant: | SZEXC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2172 of 2004 |
| Delivered on: | 2 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 February 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2172 of 2004
| SZEXC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 29 June 2004 and sent to the applicant on 30 June 2004.
The applicant is a citizen of China who, prior to her arrival in Australia, had residence in Macau. She arrived in Australia in October 1999 apparently with a visitor visa on a false passport. Having breached the conditions of her visa, she was placed in immigration detention in July 2003.
On 10 May 2004 she applied for a protection visa. The delegate of the Minister refused that application on 18 May 2004. On 19 May 2004 the applicant lodged an appeal with the Tribunal. The applicant attended the hearing which was held on 16 June 2004. On 25 June 2004 the applicant through her adviser submitted to the Tribunal further material and evidence including medical certificates. The Tribunal affirmed the delegate of the Minister’s decision on 29 June 2004.
Claims before the Department and the Tribunal
The applicant’s claims before the delegate and the Tribunal centred upon her fear of persecution for the reason of her religion, namely Falun Gong. The applicant claims that she is a practitioner of Falun Gong, having first started practising it in January 1998.
She was introduced to it by people in a park near her house. These people were doing exercises and invited her to join them. While she was practising Falun Gong exercises in the park in January 1998 about 20 people set upon her and the rest of the group. They attacked her and beat her. She claims the attackers were Buddhist.
The applicant says that most people in rural areas of China were Buddhist and did not understand that people could believe in other religions. They considered Falun Gong practitioners as outsiders and tried to make them leave their villages. In about April 1998 she left the village where she was living and moved to Macau. There she was too scared to practise Falun Gong.
She came to Australia in October 1999. But apparently she did not have any contact with Falun Gong or attempt to practise its exercises until March 2004. This was some time after being taken into immigration detention.
The decision of the Tribunal
The Tribunal’s findings and reasons are accurately summarised in the respondent’s written submissions at paragraphs 4 to 6:
4. The Tribunal did not believe that the Applicant had had any involvement with Falun Gong prior to March 2004. In other words, it did not accept that she had been part of a group that had been attacked in 1998 or that she had maintained a devotion to the principles of Falun Gong since then. It concluded that she “has taken a crash course in Falun Gong in order to contrive a case for refugee status where none previously existed”.
5. On that basis, the Tribunal regarded itself as bound by s. 91R(3) of the Migration Act 1958 to disregard the Applicant’s evidence of her Falun Gong activity in Australia. However, in any event the Tribunal regarded the applicant’s evidence as “insincere” and as not forming any basis for a conclusion that she would face persecution in China.
6. Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention.
The Tribunal summarised its decision similarly at page 128 of the Court Book:
The Tribunal thus concludes that the Applicant first involved herself in Falun Gong in March 2004, long after being detained by DIMIA and just prior to lodging her protection visa application. The Tribunal finds that the Applicant, whose demonstrated history is one of seeking income for labour outside of the PRC, and whose stated and demonstrated priority in Australia was to work off debts and support her family, has taken a crash course in Falun Gong in order to contrive a case for refugee status where none previously existed.
Consideration
The amended application set out two grounds of review: firstly, that the Tribunal failed to exercise jurisdiction and, secondly, that the Tribunal did not accord the applicant procedural fairness. I will deal with each of these grounds in turn.
I note, however, that neither ground was addressed by the applicant in her submissions at the hearing. This was despite my specific invitation for her to do so. Understandably, she explained that she had no legal expertise.
Failure to exercise jurisdiction
Three errors are alleged here. Firstly the applicant claims that the Tribunal “[d]id not decide if the Applicant’s fear of persecution for a Convention reason was ‘well founded’.”
This ground is misconceived. The Tribunal concluded that the applicant did not entertain any such fear, at least before her first involvement with Falun Gong in Australia in March 2004. On the Tribunal’s findings section 91R of the Migration Act 1958 (Cth) (the Act) requires it to disregard conduct in which the applicant was engaged in Australia. There was, therefore, no need for the Tribunal to consider the well-foundedness of any fear which may have developed while the applicant was in Australia.
Secondly, the applicant alleges that the Tribunal “[d]id not decide whether the attack on the Applicant in January 1998 amounted to persecution for a Convention reason.” There is no substance to this ground as the Tribunal concluded that no such attack occurred. The Tribunal was entitled to reach this conclusion and there are no grounds on which I can interfere with it.
The third claimed error was that the Tribunal
[m]ade a finding regarding the tolerance of Chinese Buddhists (at Page 23, point 1 of the decision) which was not supported by any evidence and was critical to the Tribunal’s ultimate conclusions regarding the Applicant’s credibility and the Application generally.
The respondent submitted that the views expressed by the Tribunal in relation to Chinese Buddhists were amply supported by reasoning based on the material before it. The respondent submitted that one of the several reasons why the Tribunal found the applicant’s account of the attack in 1998 difficult to accept was her assertion that it stemmed from intolerance by Chinese Buddhists.
The contention of the applicant appears to be that there was no evidence to support the view expressed by the Tribunal that China’s Buddhist culture had “ceaselessly incorporated new beliefs and structures into its inherited streams of Buddhism” (Court Book page 128). But, as the respondent pointed out, this view was supported by
(a) independent material emphasising that Falun Gong advocated “moral standards based on traditional Buddhist and Taoist beliefs”, and that “Falun dafa can be seen as part the long tradition of Chinese folk Buddhism”;
(b) a large volume of material describing crackdowns on Falun Gong by China’s communist authorities (i.e., not indicating any significant conflict with followers of Buddhism or other religions); and
(c) the concession by the applicant’s adviser that the material “did not report villagers attacking Falun Gong practitioners”, leading to the observation that:
Neither the Tribunal nor the Applicant have been able to find independent evidence of Falun Gong practitioners facing opposition from Buddhist communities in the PRC, let alone prior to 1999. Falun Gong, like a huge variety of home-grown Chinese religious and spiritual practices, is reported to build on Buddhism, which makes it harder for one to conceive how it could have caused so much upset, …..
I accept and adopt the submissions of the respondent that the views expressed by the Tribunal were certainly supported by reasoning based on the material before it. I note the submission of the respondent:
Thus, even if a finding unsupported by evidence on a particular issue were capable of leading to jurisdictional error (which is not conceded), no such reasoning would apply in the present case.
The ground that the Tribunal failed to exercise its jurisdiction is therefore not made out.
Procedural fairness
The applicant says that she was denied procedural fairness by the Tribunal. She argued that this was because it made a finding that her knowledge of Falun Dafa was the result of intensive teaching in the months before the Tribunal hearing. The applicant alleges that this finding was not put to her.
It is abundantly clear from the transcript that the Tribunal’s finding – that the applicant’s acquisition of detailed knowledge about Falun Gong had occurred very recently – was repeatedly put to her at the hearing.
Further, as the respondent said in its submissions:
the Tribunal’s review of the matter was governed by s. 422B of the Migration Act, with the result that the only obligations of procedural fairness that were applicable were those contained in the express provisions of Division 4 of Part 7 of the Act. None of those provisions required the Tribunal to canvass its likely findings with the Applicant.
As the respondent has pointed out:
even if general law principles of procedural fairness had applied, they would not have required the Tribunal to canvass its likely conclusion s [sic] with the Applicant.
I reject the ground that the Tribunal failed to accord the applicant procedural fairness.
Grounds raised at the hearing
Inadequacy of interpretation at the Tribunal hearing
At the hearing before me the applicant’s relevant submissions related only to inadequate translation at the Tribunal hearing. Although she referred to numerous passages in the transcript, only three of these were passages for which either the question or answer, she said, had not been correctly translated on the day.
Firstly, in relation to question 22 at page 11, the question was:
If you are having trouble understanding my point I put to you, why didn’t you practise at home in Macau?
The applicant says that the question as translated to her did not include the words “at home”.
Secondly, in response to question 23 on page 12, one of the applicant’s answers was as follows:
I didn't know exactly so because I ask the agent to apply for the student visa for me
The applicant says she actually stated, “The migration agent helped me to get a student visa”, not that she asked the agent to apply for the student visa.
Thirdly, at question 25 on page 13, the Tribunal put the question:
You haven’t practised the exercises; haven’t even practised the exercises on your own in a private place?
The first few words of the response by the applicant are translated as “Yes, that’s right”. The applicant says that her response was to the contrary.
As Mr Kennett for the Minister has said, there are difficulties with the evidence given in this matter. There is no sworn evidence, but rather assertions by the applicant from the bar table. But I will assume for present purposes that these errors did occur: that is, that there is proper evidence before the Court establishing that the errors occurred.
If they occurred would they support a claim of procedural unfairness? The accepted test relating to procedural unfairness from inadequate translation services is that set out at paragraph 17 in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230:
in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
A careful reading of the transcript demonstrates that paragraph (a) is not made out. In other words the standard of interpretation was not so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal.
Turning to paragraph (b), were the alleged errors material to adverse conclusions drawn by the Tribunal? In my view, a proper reading of the transcript indicates the alleged errors were immaterial. For question 22, the deletion of the words “at home” was inconsequential.
The part of question 23 which was of concern related to a side issue of why the applicant was placed in detention at Villawood.
At question 25, the applicant objected to the first words in the answer, but the substance of the remainder of the answer confirmed the proposition put to her: that is, that she had not practised Falun Gong even in private.
The applicant submitted that even minor interpretation errors – especially if there were a number of such errors – create a wrong impression in the Tribunal’s mind. But it is obvious from the transcript and the Tribunal’s decision that these alleged errors, taken individually or taken together, had no material bearing on the Tribunal’s conclusions which were adverse to the applicant. So even if I accept that there were errors in translation, these did not amount to legal error preventing the applicant from putting her case before the Tribunal.
Other matters raised at the hearing
The applicant also referred to a number of other passages in the transcript during her submissions. The issues that arose from these had not been previously raised. In the main they related to factual disputes the applicant had with the Tribunal.
The applicant also alleged that on some occasions the Tribunal did not allow her to provide answers to its questions. But what is evident is that the applicant was just dissatisfied with the way the hearing had gone. Again this does not indicate any procedural unfairness or legal error.
There are obvious dangers also in treating a transcript as a source of the Tribunal’s reasons. A proper reading of that transcript shows that the applicant was given an opportunity to answer the questions put to her. She also was given and took up the opportunity to provide further material to the Tribunal after the hearing. The applicant was not prevented from effectively giving her evidence.
The grounds raised for the first time at yesterday’s hearing are also without substance.
Conclusion
Counsel for the Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal formed an adverse view about the credibility of the claims made by the applicant. The Tribunal’s findings were reasonably open to it on the material before it.
It is obvious that the applicant’s real dispute is with the findings of fact made by the Tribunal. She has not been able to establish any legal error in the Tribunal’s handling of her matter. Rather she wants me to revisit the merits of its fact finding. As I pointed out at the hearing this is something I have no power to do. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal is a privative clause decision, having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
In the circumstances, the application before this Court must be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Mowbray FM.
Associate: Kelisiana Thynne
Date: 9 March 2005
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