SZGND and Minister for Immigration and Anor

[2007] FMCA 2025

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGND v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2025

MIGRATION – Review of Refugee Review Tribunal decision – where Tribunal did not reach state of satisfaction – where issues of translation – where issues made known to Tribunal – whether breach of s.424A Migration Act 1958 (Cth) – whether procedural fairness.

Migration Act 1958 (Cth), ss.424A, 425

SZDFO v Minister for Immigration [2004] FCA 1192

Applicant: SZGND

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2849 of 2006

Judgment of: Raphael FM

Hearing date: 29 November 2007

Date of last submission: 29 November 2007

Delivered at: Sydney

Delivered on: 29 November 2007

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Ms S.A. Sirtes

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2849 of 2006

SZGND

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China who arrived in Australia on 14 November 2004. On 13 December 2004 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 31 December 2004 a Delegate of the Minister for Immigration refused to grant a protection visa and on 19 April 2005 the Tribunal affirmed the Delegate's decision.

2. The applicant sought review of the Tribunal's decision and on 2 February 2006 the Federal Magistrates Court ordered by consent that the Tribunal decision be set aside and the matter be remitted to the Tribunal for determination according to law. The second Tribunal arranged a hearing which was attended by the applicant and his adviser on 21 June 2006. On 25 August 2006 (wrongly recorded as 25 August 2005) at [CB 146] the Tribunal determined to affirm the decision not to grant a protection visa. It handed down that decision on 5 September 2006.

3. The grounds upon which the applicant alleged that he was a person to whom Australia owed protection obligations arose out of his association and adherence to the Falun Gong movement at his home in China. The applicant told how, following the Chinese decision to declare the Falun Gong movement an illegal organisation, he ceased practising in public and began to practice in private. He stated that one morning while his friends and he were practising police came to arrest them, he escaped.

4. Because he had a good relationship with the local government and the local police chief, he was not put in gaol, but he was warned not to practise Falun Gong. In August 2004 the police chief retired and his replacement was unknown to the applicant. The applicant received information that the police were collecting information against him. He believed he would be arrested and prosecuted if he remained in China and so he made use of a business visa to travel to Australia.

5. The applicant told how he had been a Falun Gong adherent since 1996 and he explained to the Tribunal the nature of his own personal practice. He produced to the Tribunal some photographs indicating that he had taken part in a demonstration outside Parliament House in Canberra on Monday 18 June 2006. He claimed that this would place him in additional danger.

6. The Tribunal questioned the applicant about his knowledge of Falun Gong including details of the philosophy of the Master and the physical nature of the exercises. The questions and the applicant's responses are set out at [CB 151]-[153]. The Tribunal also questioned the applicant about a document entitled "Notification of Incorrect Answers Form 1023" which dealt with inconsistencies between the applicant's present story and that indicated in the application for a protection visa.

7. Just prior to the handing down of the Tribunal's decision, which was originally intended to occur on 1 August 2006, the Tribunal received a letter from the applicant's advisers expressing concern about the quality of the translation at the hearing. The Tribunal agreed to give the advisers some further time in which to make representations about this, and although they exceeded the time granted the Tribunal did receive those representations and took them into account. The representations included another translation of the transcript and what was described as a “mistranslation during the hearing” document which commences at [CB 130] and concludes at [CB 137].

8. In its findings and reasons the Tribunal correctly, to my mind, limits itself to findings of lack of satisfaction rather than making the type of comments that are commonly seen concerning a Tribunal's views of the credibility of an applicant. It is to be remembered that the Tribunal's duty is to conclude whether or not it has come to a state of satisfaction and only if it has done so may it grant a visa. It is not always necessary in coming to a conclusion that the state of satisfaction has not been reached to make positive findings of incredibility and this has not been done.

9. The Tribunal concluded at [CB160], in relation to the evidence put forward by the applicant, that it did not satisfy it that he was a genuine Falun Gong practitioner:

   “In the first place the Applicant's account of his claimed lengthy Falun Gong involvement in China is inconsistent with the brief and vague responses he gave on the subject at the hearing.  His answers were notably uninformative and they did not appear to be based in any genuine personal experience of the Falun Gong faith going back over 10 years such as he claims for himself…I accept that he may have had some limited contact with Falun Gong practitioners and that he has learned some basic and easily accessible facts about the Falun Gong faith.  However, his responses at the hearing do not support his claims to have been a regular practitioner in China.  I make this finding having taken into account the claimed mistranslations of the Applicant's responses on this issue.”

10. The Tribunal took a similar view of the applicant's claimed practice of the Falun Gong philosophy in Australia for the reasons found also at [CB 160]. It made reference to the attendance at the demonstration on 18 June 2006. It accepted that the applicant may have attended the demonstration but:

    “I am not satisfied, on the basis of these responses, that the fact that he participated in a demonstration provides support for his claims about his involvement with the Falun Gong faith. Moreover, given the timing of his participation in this event, three days before the Tribunal hearing, and the lack of evidence of involvement in any previous demonstration in Canberra or elsewhere, I am not satisfied that his motive for participation was other than to strengthen his claims to be a refugee. As such I am required, in accordance with s.91R(3) of the Act, to disregard this conduct in determining whether the applicant has a well founded fear of persecution in China.”

11. This case is unusual in that the complaints concerning the translation at the Tribunal hearing were not saved until an appearance in this Court but were put plainly and thoroughly to the Tribunal. The applicant can hardly complain about the quality of service that he received from his migration adviser in this case (and does not do so, so far as I am aware). The difficulty with this approach is that, as explained by Ms Sirtes, provided the Tribunal considers the matters according to law any decision upon the quality of the translation is a decision on a matter of fact and thus with limited exception, outside the ability of this Court to review.

12. The applicant's advisers made quite clear to the Tribunal the law that it should apply; see, for example the submissions of 12 July 2006 found at [CB 78] and the submissions dated 14 August 2006 found at [CB 94], both of which are referred to in the Tribunal's decision at [CB 161]. The Tribunal dealt with the question of the mistranslations comprehensively at [CB 159]. It noted that it was not at all clear that the passages in the transcript which had been identified as mistranslations were in fact that. It noted that the qualifications of the translators used both by the Tribunal and by the applicant were the same, and came to the conclusion that in any event the alleged mistranslations were minor. I was not addressed in any way upon this matter by the applicant, whose lawyer filed an affidavit on 22 November 2007 advising the Court that he had received a notice in writing from the applicant terminating his instructions on 13 November 2007.

13. I note that no amended application was filed that contained allegations that the Tribunal fell into jurisdictional error in the manner in which it considered the mistranslations, and in these circumstances I do not think it is appropriate for me to go through the document and make my own views about it known. I accept that in the manner in which this matter was approached by the advisers the decision of the Tribunal was one of fact and the explanation of its decision contained in its findings and reasons does not reveal, to me, a jurisdictional error. The Tribunal says at [CB 159]:

    “Having examined the remainder of the claimed mistranslations I am not satisfied that, even if they are in fact  mistranslations, they so alter the meaning of the original words that it could be said that a fair hearing was not provided to the Applicant.  I am satisfied that there was effective communication at the hearing despite the alleged mistranslations.  In these circumstances I do not accept that there is any justification for the Tribunal offering a new hearing to the Applicant using a different interpreter.”

14. The Tribunal summed up its views about the applicant's claims including the responses to the s.424A letter that it had sent to the applicant through his advisers at [CB 162]:

    “The Applicant's claim that he will face persecution if he returns to China rests on his claim to have been a Falun Gong practitioner and he does not claim to have suffered any harm for any other Convention-related reason.  Nor do his claims indicate, on their face, that there is any reason to believe he will suffer harm for any other Convention-related reason.  His claims concerning his Falun Gong involvement are, variously, brief, vague and implausible.  I am not satisfied on the basis of these claims that he has ever been a Falun Gong practitioner, either in China or Australia or that he has ever suffered harm for this reason in China in the past.  I am not satisfied there is any reason to believe he would become a Falun Gong practitioner if he were returned to China or would suffer harm for such reason.”

15. The application which was filed in this Court on 5 October 2006 gives four grounds. It says firstly that the decision is affected by jurisdictional error in that the second respondent failed to accord procedural fairness to the applicant. No particulars are provided. Normally I am hesitant to guess what such an allegation might mean but Ms Sirtes has suggested that it could be a reference to the translation problems that were so clearly pointed out to the Tribunal by the applicant's advisers. I believe I have dealt with these. All the representations made by the advisers were considered by the Tribunal and have been noted.

16. The second point is that the Tribunal breached s.424A of the Migration Act 1958 (“the Act”). It is not at all clear how this occurred given that a letter under s.424A was sent to the applicant, and is found at [CB 76]. The third argument is that the decision was affected by jurisdictional error in that the second respondent breached s.425 of the Act. Once again no particulars are provided. If this is a reference to the Tribunal's decision not to hold a second hearing then such a decision was made on the basis of the fullest information. A decision such as the one referred to is a matter entirely within the discretion of the Tribunal and the applicant would have to show that the Tribunal made an error of law in the way in which it exercised that discretion before it could be said that a breach of that section had occurred. There is no evidence of this and no submissions have been put to me.

17. Finally the applicant says that the decision is affected by jurisdictional error in that the second respondent incorrectly interpreted and incorrectly applied the law. This is a claim of enormous breadth and I do not propose to deal with it in the absence of any particulars.

18. Before me today the applicant said that the Tribunal did not fully consider his application. I am satisfied, from my reading of the Tribunal's grounds and reasons that this is not sustainable. He argued that the member decided, without any basis, that he was not a Falun Gong practitioner. But as I have explained, the Tribunal went into some detail as to its reasons for coming to that conclusion [CB 160].

19. The applicant said that the Tribunal did not understand the Chinese situation and that as he has exposed himself to the Chinese authorities in Australia by attending the protest in Canberra he is in danger. That is also a matter dealt with by the Tribunal, which applied the law relevant to that situation. The applicant said that the Tribunal did not give him any reasons for his findings. Given the existence of a lengthy decision document I assume that the applicant means that the Tribunal member did not give any reasons that the applicant accepted for the findings. As has been made clear frequently in the past:

    “Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power.  The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error.  It is against that legal background that the appellant needs to understand the reasons of the disposition of his appeal.”

    SZDFO v Minister for Immigration [2004] FCA 1192 per Allsop J [11].

20. The applicant disagrees with the Tribunal's decision. That is understandable from his point of view; however it does not constitute jurisdictional error and that is the only matter that I am required to opine upon. The application shall be dismissed. The applicant shall pay the first respondent’s costs assessed in the sum of $4000.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  5 December 2007