SZGXZ v Minister for Immigration
[2006] FMCA 928
•28 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGXZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 928 |
| 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 is a citizen of the People’s Republic of China claiming extortion by corrupt officials – allegation of bias – credibility – claim that Tribunal lacked evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 475A |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 134 ALD 327 Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZGXZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2132 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 June 2006 |
| Date of last submission: | 28 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Henderson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2132 of 2005
| SZGXZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 June 2005 after a hearing that took place on 16th June 2005. The Tribunal handed down its decision on 12th July 2005. The Tribunal affirmed the decision of the delegate to the Minister for Immigration & Multicultural Affairs, to use the current title, 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 12th December 2004. On 20th January 2005 the Applicant applied for a Protection (Class XA) visa and when that was refused on the 26th February, applied for a review of that decision by the Refugee Review Tribunal. On the 1st April 2005 the Applicant lodged an application for review with the Refugee Review Tribunal. Attached to that application was a typed statement that said that the Applicant and her sister were self-employed in China and ran a clothing business from a shop in Fuqing.
The Applicant claimed that she and her sister were the victims of extortion by local officials and when they refused to make any more payments because the amounts were too high, they were detained for 14 days. The Applicant claimed that her brother paid a bribe to have them released and her sister later wrote and threatened to expose the corrupt officials who had had them detained.
The Applicant claimed that she had to leave China for her protection and feared she would suffer if she had to return. A copy of the Applicant's statement appears at page 62 of the Court Book.
The Tribunal wrote to the Applicant on the 23rd May 2005 and invited her to appear at a hearing at 12:30pm on Thursday 16th June. The Applicant replied to the invitation, indicating that she wanted to attend and would require a Mandarin interpreter. The Applicant attended the Tribunal on the 16th June 2005 and gave oral evidence. Her sister gave evidence in another hearing before the same Tribunal Member that same day.
The Applicant told the Tribunal that she and her sister had run the shop as she had said in her statement and confirmed that they had been subject to extortion by corrupt officials. She reiterated her claim that they had been detained after they refused to pay higher amounts. The Tribunal Member asked her about the way that she and her sister had run the shop, including the provision that they made for overhead expenses.
The Tribunal’s findings and reasons
The Tribunals findings and reasons are set out on pages 83 and 84 of the Court Book. The Tribunal, having inspected the Applicant's passport, was satisfied that the Applicant is a national of the People's Republic of China.
The Tribunal had serious concerns about the credibility of the Applicant's claims. The Tribunal said, at pages 83 and 84:
In my view significant aspects of the Applicant's evidence were confused, internally inconsistent and implausible. In my view the Applicant fabricated her claims in an attempt to create for herself a profile of a refugee. In relation to this I do not accept that the Applicant operated a business in China. In my view the Applicant's evidence concerning the business she supposedly operated was unconvincing.
The Tribunal expressed doubts about other aspects of the Applicant's evidence and came to this conclusion:
Overall I am led to conclude that the Applicant's account of her situation in China lacks credibility. I do not accept that the Applicant operated a business, that she reported corruption, that she was detained, that the Chinese authorities wanted to arrest her prior to her departure from China or that she is at risk of being detained on return to China. As I do not accept the factual basis of the Applicant's claims, I am unable to be satisfied that she has a well-founded fear of persecution on the basis of those claims.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision of the delegate not to grant a Protection Visa.
The application for judicial review
The Applicant filed an application under s.39B of the Judiciary Act on the 10th August 2005 seeking writs of prohibition, certiorari and mandamus. She filed an Amended Application on the 9th December 2005 in which she set out the three lengthy grounds for review. I will summarise those grounds as follows:
1. The Tribunal failed to consider my application for a Protection Visa, the Tribunal had bias against me.
2. The Applicant believed that the Tribunal Member had bias against her and there is no evidence in material to support the conclusion adverse to her credibility.
3. The Tribunal expected the Applicant to understand a high standard of education and communication. The Tribunal misunderstood the Applicant and did not understand her at all.
The Applicant was of the view that the Tribunal Member did not take into account her relatively short education and felt the Applicant should have received a lot of education because she could run a business. The Applicant complained that the Tribunal Member's mind was too complicated. The Tribunal did not understand people like her and as a result the Tribunal had bias against her.
In an oral submission to the Court the Applicant reiterated her claim that the Tribunal was biased because the Tribunal did not believe her due to her comparative lack of education. She said that not having a significant education did not mean that she and her sister could not run a business.
In reply to a question from the bench as to why the Applicant felt that the Tribunal misunderstood her and did not understand her at all, the Applicant said that she was unable to answer the Tribunal's questions because she was not good at Mandarin.
The Applicant told the Court that she and her sister mainly conducted their business in the Fuqing dialect because they were in Fuqing. In answer to a question from the bench as to why the Applicant did not request an interpreter in the Fuqing dialect for the Tribunal hearing; the Applicant said that she thought the Tribunal would only have Mandarin speaking interpreters. The Applicant believed that the decision was unfair because the Member did not believe her because she was unable to express herself.
Counsel for the Respondent Minister has prepared a set of written submissions which were filed on the 26th April and I understand were forwarded to the Applicant shortly afterwards. The Applicant had a copy of those submissions but indicated that she had not understood them due to a language difficulty.
As is my usual practice; I stood the matter down until the Applicant had the chance to go through the outline of submissions with the assistance of the interpreter. Once the Applicant had had the opportunity to go through that document I then commenced the hearing.
In the submissions on behalf of the First Respondent Minister, Ms Henderson of counsel submits that the Applicant's claim of bias by the Tribunal Member cannot stand. She said the party alleging bias on the part of a decision maker carries a heavy onus. The allegation must be distinctly made and clearly proved, referring to the decision of the Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 at [69] and [127]. She also submitted that bias can rarely be demonstrated by citing the published reasons for decision as the Applicant has done; referring to SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 668 at [37] and also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [44]. She submitted the applicant has failed to demonstrate the Tribunal's decision was affected by the error that she has alleged, namely bias.
Dealing with difficulties in communication - they are set out in grounds one and three - counsel for the Respondent noted that at paragraph 17 of her submissions that the Applicant had requested a Mandarin interpreter at the Tribunal hearing and an interpreter in that language was available.
She submitted that the Tribunal's summary of the evidence taken at the hearing was very detailed and it was likely that if the Applicant had informed the Tribunal that she was having difficulty understanding questions or was having problems with the interpreter, that the Tribunal would have included that information in the record of the decision. The absence of any reference to any problems of that nature was compelling evidence, she submitted, that the Applicant did not make any complaint during the hearing. The submission is that that ground must be rejected.
In an oral submission to the Court, Ms Henderson put that the exact nature of the Applicant's claim of not being understood by the Tribunal had only been explained for the first time by the Applicant in her oral submission. She told the Court that as it was clear that a Mandarin interpreter had been made available for the purpose of this hearing, it was noteworthy that the Applicant had given coherent and appropriate answers to the questions asked from the bench. She submitted that the Applicant can communicate with the assistance of a Mandarin interpreter and the Tribunal's account of the proceedings show that she was able to explain her case adequately.
Also, in respect of the Applicant's complaint of bias; Ms Henderson submitted that on page 84 of the Court Book the Tribunal had allowed for the Applicant's lack of sophistication and had taken those matters into account in the Applicant's favour. She submitted that the conclusion reached by the Tribunal had not been undermined by the matters that the Applicant had raised orally in the hearing.
In respect of ground two, the lack of evidence to support the Tribunal's findings; counsel for the First Respondent submits that it is not necessary for there to be rebutting evidence before a Tribunal to reject an applicant's evidence that refers the Court to Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 134 ALD 327. She also submitted that the Tribunal is not required to accept an applicant's claims uncritically and referred to the decision of Beaumont J in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 at [451]. Credibility, she submitted was a matter for the Tribunal.
The Respondent has submitted that the Applicant has failed to show the Tribunal decision was affected by jurisdictional error.
I have considered the oral submissions on behalf of the parties and the written submissions on behalf of the First Respondent Minister. I am satisfied that the basis upon which the Tribunal rejected the Applicant's claims was quite clearly based on the adverse opinion upon the credibility of the Applicant's claims.
A decision on credibility is a factual decision. Provided there is evidence upon which a factual decision can be made, then the Court does not and cannot interfere with a factual assertion. It is certainly the law that the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. It is the task of the Applicant to convince the Tribunal that the Applicant meets the necessary criteria for a visa. It is not the task of the Tribunal to disprove the Applicant's claim.
The Tribunal, at page 81 and page 82 of the Court Book, considered independent country information from the Department of Foreign Affairs and Trade. That information related to the availability of passports in the People's Republic of China and whether people can get approval to exit the country. The Tribunal was not satisfied that the Applicant would have obtained a passport in her own name and take a risk attempting to leave China in her own name if she considered herself to be at risk of arrest.
The situation is clear in my mind that no jurisdictional error has been shown. There is just no evidence of bias and it is well established that it is a rare occasion indeed that evidence of bias will be found just from a perusal of the Tribunal's reasons and findings. It is not evidence of bias if the Tribunal makes a finding adverse to the Applicant's credibility, provided there is evidence upon which such a finding can be made. I am of the view that there was such evidence upon which the Tribunal could be made. I have read through the decision myself thoroughly because I'm mindful of the fact that the Applicant is not legally represented. There is no other evidence of any jurisdictional error that I can discern and not brought to my attention by the Applicant.
The Tribunal does not appear to have committed any breach of s.424A of the Migration Act in that the information relied on by the Tribunal and affirming the delegate's decision is either independent country information or information supplied by the Applicant for the purpose of the application for review, being the typed statement attached to the application for review and the Applicant's oral evidence. Both of the latter pieces of information are of course covered by the exception under s.424A (3)(b).
There is no jurisdictional error that I can discern. It must follow then that the application will be dismissed. I mentioned at the outset that there is a change to the title of the Minister who is now the Minister for Immigration and Multicultural Affairs. It is regrettable that the Applicant was under the belief that she would not have been able to obtain an interpreter in Fuqing dialect. The Applicant did not ask. There are many interpreters in dialects of Chinese available to the Court and to the Refugee Review Tribunal. If the Applicant did have difficulty in Mandarin she should have requested an interpreter in the appropriate dialect. There was nothing to lead the Tribunal to suspect that the Applicant would not have been able to understand a qualified interpreter in the dialect of Chinese which she requested. The application must be dismissed.
In my view it is an appropriate matter for an order for costs in favour of the successful First Respondent. The Applicant has been wholly unsuccessful in her claim. That said; the amount of costs being in the fixed sum of $5,000.00 inclusive of counsel's fees is appropriate bearing in mind that this is an application commenced prior to the 1st December 2005 and there was an earlier hearing fixed which did not take place.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 29 June 2006
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