SZGTT v Minister for Immigration
[2006] FMCA 619
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 619 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant alleges interpreter unable to interpret relevant religious terminology accurately – applicant alleged Tribunal failed to engage interpreter with necessary skill – breach of s.424A – breach of procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.55.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A; 424A(1); 424A(3)(b); 474; 483 |
| SZAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1719 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs FCAFC 10 |
| Applicant: | SZGTT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1870 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 April 2006 |
| Date of last submission: | 27 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms S. A. Mason |
| Solicitors for the Respondent: | Mr D. Sim, Clayton Utz Lawyers |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1870 of 2005
| SZGTT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 9 June 2005 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.
The applicant is a 28 year old male who claims to be a citizen of the People’s Republic of China (“the PRC”) and of Chinese ethnicity and Catholic faith (“the Applicant”).
The Applicant arrived in Australia on 2 December 2004 having legally departed from Pudong on a passport issued in his own name.
On 9 December 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution by the PRC authorities by reason of his religious beliefs, practices and affiliations. The Applicant claimed he was a member of the Roman Catholic underground church.
On 2 February 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 8 March 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 19 May 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The tribunal proceeding
The Applicant gave oral evidence to the Tribunal on 18 May 2005 with the assistance of a Mandarin interpreter.
The Tribunal’s decision is accurately summarised in the First Respondent’s outline of submissions set out as follows:
“The Tribunal:
(a) accepted that the applicant was a citizen of China for the purposes of his application (CB91.2).
(b) accepted that some members of the Roman Catholic Church in China have been subjected to harsh treatment by the State (CB 91.3).
(c) explored with the applicant his knowledge of Catholicism and found that the applicant had no familiarity with the Lord’s prayer and did not accept the applicant’s explanation that he was nervous and could not recall the prayer (CB 91.8).
(d) noted that the applicant did not know the name of the new Pope which was a matter which would presumably have been of considerable significance to the applicant and moreover that he ought to have known the name considering he was in Australia at the time the new Pontiff was appointed and had free access to information (CB 91.9).
(e) gave the applicant an opportunity to provide further evidence to prove that he was a member of an underground Roman catholic Church in China, given the lack of knowledge he had displayed and the fact the his migration adviser had not attended the hearing, however the applicant expressed no wish to take that opportunity (CB 92.1).
(f) found there to be internal inconsistencies in the applicant’s oral evidence given at the hearing regarding the purpose of his time in Chile (CB 92.3) and considered it implausible that the applicant had visited Chile in 2004 for the purpose of collecting religious materials and was overall satisfied that the applicant’s purpose in visiting Chile had been purely business related (CB 92.5).
(g) did not consider plausible the applicant’s claim in respect of his knowledge of other members of the underground Church (CB 92.8).
(h) was dissatisfied with the applicant’s chronology and account of the circumstances surrounding his questioning and his departure for Chile (CB 92.9).
(i) did not accept that the applicant was a member of an underground church in China nor that he had been suspected of such membership by Chinese authorities (CB 93.2).
(j) found there to be only a remote chance that the applicant would be subjected to persecution in China because of his religion, any political opinion imputed to him or for any other Convention reason (CB 93.4).”
The proceeding before this Court
On 15 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. Pursuant to directions made on 9 August 2005, an amended application was filed on 13 September 2005 (“the Amended Application”). The Applicant confirmed this morning he relied upon the Amended Application. The grounds are addressed below.
Grounds 1, 2 and 3
“1. The Tribunal failed to consider one of the most important issues in my case: that is, the interpreter during the hearing was unable to interpret religious terms and relevant religious matters, accurately and properly, either in Chinese or English.
1.1 The interpreter did not have necessary religious knowledge:
1.2 The interpreter was not familiar with necessary religious terms; and
1.3 Neither the Tribunal nor the interpreter realized, in time, that the issues mentioned in above Paragraph 1.1 and 1.2 became a big obstacle while the Tribunal discussed with me about those important religious issues in relation to my review application.
2. The Tribunal failed to arrange a proper interpreter with necessary religious knowledge to assist the hearing.
2.1 As a matter of fact, before the hearing, the Tribunal should clearly realize, according to my written materials, that it would discuss typical religious matters, including religious terms, with me during the hearing. Therefore, the Tribunal should provide a proper interpreter with necessary religious knowledge for the hearing. However, the Tribunal failed to do so.
2.2 During the hearing, the Tribunal should have necessary knowledge and experience to find the problems of interpretation for those religious terms.
2.3 Subjected to Section 425 and 424A of the Act, during and after the hearing, the Tribunal should invite me to comment its concerns about my religious knowledge in order to determine whether or not it was owing to mistakes or poor ability of the interpreter. However, the Tribunal failed to do so.
3. In support of my claims, I herby submit a copy of record types for the Tribunal hearing as evidence that the interpreter apparently did not have necessary religious knowledge and the interpreter was not familiar with necessary religious terms.”
At the heart of these grounds is the Applicant’s complaint that the interpreter at the hearing before the Tribunal was so lacking in religious knowledge that he/she was not able to properly translate or properly interpret various religious terminology. In support of this contention the Applicant tendered an unauthorised transcript of the hearing before the Tribunal prepared by his migration agent. The First Respondent did not object to the tender and, accordingly, the document was admitted into evidence as Exhibit 1A.
Despite being given several opportunities this morning, the Applicant was unable to take the Court to any particular part of the transcript where any religious terminology may have been mistranslated or misinterpreted, nor was he able to identify the nature of any particular terminology or evidence that he claimed was mistranslated or misinterpreted.
In its decision the Tribunal noted that the Applicant’s migration agent was not present and that there were no witnesses. The Tribunal went on to state “a suitably accredited Mandarin-speaking interpreter assisted, and (the Applicant) confirmed he had no difficulty understanding this interpreter.”
Further at the outset of the hearing, as revealed at page 2 of Exhibit 1A, the Tribunal had the following exchange with the Applicant:
Tribunal: “Are you able to understand the interpreter, do you have any difficulty?”
(After interpretation) Answer: “No”
Tribunal: “Do you have any rejection to use this particular interpreter or is there anything you should be aware of.”
(After interpretation) Answer: “No”
As the model litigant, counsel for the First Respondent identified in Exhibit 1A two exchanges that the First respondent submitted were the only exchanges capable of being relevant to the Applicant’s grounds. Certainly, the Applicant did not identify or refer to any other part of Exhibit 1A:
(1) Tribunal: “Have you asked any church in Australia, or any human rights group in Australia to take up the case, to publicize it to try and get help for them?”
(After interpretation) Answer: “No, I did not”
(After exchange between interpreter and Applicant in Mandarin) Interpreter: “I don’t understand his meaning in Chinese”… (further exchange between interpreter and Applicant in Mandarin)… “I don’t think I am able to play an active role in relation to this”
Tribunal: “What do you mean? Why didn’t you ask people who are more powerful than you in the Roman-Catholic church to log your argue or to publicize the plaint of the people?”
(After interpretation) Answer: “Because the greater tense you publicize them, the more significant prosecution the church member suffer, this is just a similar case as Fa Lun Gong.”
Apart from the fact that this exchange would not appear to be directly relevant to the Applicant’s claim of a fear of persecution in the PRC by reason of his membership of the Roman Catholic underground church, there is no complaint by the Applicant that the final interpretation of his answer is incorrect.
(2) Tribunal: “Some of the evidence says we have are that the treatment of underground churches varies, depending on where you live in China and the attitude of the local officials towards the underground church.”
Interpreter: “Sorry, I just to clarity that you mean the local government and local authorities’ attitude vary in relation to the underground church?”
Tribunal: “Yes”. “Is that true as far as you know?”
(After Interpretation) Answer: “I don’t think there is difference, basically they are the same.”
The First Respondent submits that these two exchanges would appear from Exhibit 1A to be the only two occasions during the entire hearing where there was any need for the interpreter to clarify matters. Such exchanges are not uncommon in the course of translating and interpreting evidence and would tend to demonstrate the desire of an interpreter to ensure that any interpretation or translation was as accurate as possible. There is nothing in Exhibit 1A to support the Applicant’s contention that the interpreter was “unable to interpret religious terms and relevant religious matters, accurately and properly either in Chinese or in English.”
Moreover, there is nothing to suggest that the interpreter was otherwise an accredited Mandarin interpreter, in accordance with the observations of the Tribunal in its decision. Certainly the Hearing Information Form, contained in the Court Book, discloses the name of the agency from which the interpreter was drawn and there is otherwise nothing irregular about the Form and its contents.
The Applicant claims in Particular 2.3 of Ground 2, that the Tribunal erred in failing to invite him to comment on concerns held by the Tribunal about the Applicant’s religious knowledge in order that the Tribunal could satisfy itself that such concerns were not due to “the poor ability of the interpreter.” Plainly, such a ground is misconceived. Moreover, there is nothing in Exhibit 1A, nor anything put today by the Applicant, to suggest that the ability of the interpreter was anything but satisfactory.
In order to amount to jurisdictional error the standard of interpretation must be so inadequate as to effectively prevent the Applicant from being able to give evidence or the errors in translation were material to any adverse conclusion of the Tribunal. (SZAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1719, per Hely J at [31]). There is nothing in the Applicant’s submissions or evidence that would suggest such a finding.
Accordingly, grounds 1, 2 and 3 are dismissed.
Ground 4
“4. Based on the evidences mentioned in above Paragraphs, I have to point out that the Tribunal has exceeded its powers, because it has identified wrong issues, ignored relevant material, relied on irrelevant material, and made erroneous findings. Therefore, the Tribunal has committed a jurisdictional error.”
No particulars were furnished in support of this ground.
After the Ground was read to the Applicant and he was invited to expand upon it, the Applicant submitted that he was not given a further opportunity to make oral submissions at the time at which the tribunal handed down its decision and that such failure was a denial of procedural fairness.
This ground is plainly misconceived.
On 7 April 2005, the Tribunal wrote to the Applicant informing him that it had considered the material before it but was unable to make a decision in the Applicant’s favour on that information alone. The letter went on to invite the Applicant to a hearing on 18 May 2005. On
13 April 2005, the Applicant responded to the invitation to a hearing stating that he wished to appear and requested a Mandarin interpreter be present to assist him. As stated above, the Applicant indeed appeared at a Tribunal hearing at which he gave oral evidence with the assistance of a Mandarin interpreter.
Exhibit 1A reveals that the Applicant was invited to provide to the Tribunal any further evidence upon which he wished to rely and was asked if there was anything the Applicant thought was important to explore with the Tribunal, to which the Applicant responded, No. The Tribunal informed the Applicant that the Tribunal had noted that the Applicant had some difficulties in answering questions about the Catholic faith, and for that reason invited the Applicant to put anything further he wished to in support of his claims.
In those circumstances there has been no denial of procedural fairness to the Applicant arising out of the conduct of the hearing before the Tribunal.
Accordingly, this ground is dismissed.
Ground 5
“5. Further, the Tribunal failed to comply with its obligation under Section 424 of the Act regarding to following particular information –
-My previous trip to Chile
-My religious activities in my previous trip to Chile
-The visa of Chile, which was held by me before I came to Australia: and the reason why I did not use that visa to Chile
The Tribunal has used particulars of the above – information as the reasons for affirming the decision that is under review. However, the Tribunal failed to give me particulars of the information before, during and after the hearing, and failed to ensure me to understand why the information is relevant to the review and failed to invite me to comment on it.”
Whilst the Applicant had nothing to say in support of this ground this morning, this ground would appear to allege a breach by the Tribunal of its obligations under s.424A(1) of the Act to give to the Applicant any information the Tribunal considered would be the reason or part of the reason for affirming the decision under review, ensuring the Applicant understood its relevance and inviting the Applicant to comment upon it.
The particulars of the information identified by the Applicant are contained in a statement by the Applicant dated (unclear) provided to the Tribunal for the purposes of its review. Part of that statement included the quoting of information from a statutory declaration made by the Applicant and provided to the Delegate in support of his protection visa application.
If an applicant refers to information for the purposes of their review by putting it forward ‘in chief, the assumption being that by doing so the applicant is aware of the information.” (NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [36]-[37]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20]).
In the circumstances the information was given by the Applicant to the Tribunal for the purpose of his review application and by virtue of s.424(3b) of the Act is therefore not information and, that enlivens the obligations of s.424A(1).
Accordingly, this ground is dismissed.
Ground 6
“6. In addition, although the Tribunal, in its decision, did mention a little of independent country information regarding To Catholic Church in China it has, in fact, failed to consider my claims based on those important evidences from independent country information.”
This ground contains no further particulars and the Applicant made no further submission in support of this ground.
It is a matter for the Tribunal the nature of the independent country information to which it has regard and the weight to be attributed to such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs FCAFC 10 at [11]).
Further, the reason for the Tribunal’s conclusion that it was not satisfied that the Applicant was a person to whom Australia has protection obligations, was largely because it found the Applicant’s evidence to be lacking “cogency”, implausible, inconsistent and unsupported by documentary evidence.
In the circumstances, there is no jurisdictional error disclosed in this ground.
Accordingly, this ground is dismissed.
Conclusion
The findings of fact made by the Tribunal were open to it on the material and evidence before it. The Tribunal identified with particularity the claims and evidence before it and gave reasons for its findings and conclusions that were not irrational or illogical.
Accordingly, the Tribunal’s decision is not affected by jurisdictional error and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court is dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 27 April 2006
0