SZHCC v Minister for Immigration

[2007] FMCA 659

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHCC v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 659

MIGRATION – Refugee – applicant disowned claims at Tribunal hearing – Tribunal considered claims – Tribunal open to make findings on evidence before it – no s.424A error – independent information put before Tribunal – no comparison of inconsistencies – Tribunal gave opportunity to comment – no failure to assess applicant’s claims – no failure to “properly discern” Migration Act1958– no error in failing to allow applicant to put claims in writing – Tribunal’s reasons sufficient to explain ultimate conclusion – application dismissed.

Migration Act 1958, ss.424A, 424A (3)(b), s.424A(1)

SZHCD v Minister for Immigration & Citizenship [2007] FMCA 658
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA  24
Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1679
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328

Applicant: SZHCC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2511 of 2005

Judgment of: Nicholls FM

Hearing date: 1 May 2007

Date of Last Submission: 26 April 2007

Delivered at: Sydney

Delivered on: 8 May 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. A. McInerney

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $2250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2511 of 2005

SZHCC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed on 8 September 2005 and amended on 19 December 2005, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 19 July 2005 and handed down on 9 August 2005, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant. (This matter needs to be read with SZHCD v Minister for Immigration & Citizenship [2007] FMCA 658, concerning a similar application by the applicant’s husband who separately sought review by the Tribunal, resulting in a similar decision to that of his wife).

2. The applicant is a citizen of the People’s Republic of China, who arrived in Australia on 8 January 2005. On 17 February 2005 she lodged an application for a protection visa with the first respondent’s Department. On 8 March 2005, a delegate of the Minister refused to grant a protection visa. On 11 April 2005 the applicant applied for review of that decision.

3. The application for a protection visa is reproduced at Court Book “CB” 1 to CB 26, and the applicant’s claims are also advanced in a statement reproduced at CB 7. The application for review to the Tribunal is reproduced at CB 45 to CB 49, which includes a statement by the applicant at CB 49. In the application it was claimed that:

   1)     She became a Christian in 1986. 

   2)     She did not have religious freedom in China.

   3)     In March 2004, as a result of his religious activities, she and her husband were arrested by the local police as they believed they were attending “illegal” religious activities.

   4)     She suffered severe mental and physical torture from the Chinese authorities.

   5)     They (she and her husband) could not leave China until they “paid bribe money” to “the concern people”.

4. The Tribunal’s “Findings and Reasons” are set out at CB 69.8 to CB 71.5. The Tribunal previously set out the applicant’s claims as described in her written application, and in particular in her application for review (at CB 68.2 to CB 68.10), but noted that at the hearing conducted on 18 July 2005, the applicant:

   (1)Was unaware of the claims advanced in her application for protection, and in her application for review (CB 70.3).

   (2)Stated that these were prepared by a person in Australia “whose name she did not know” and that this had been arranged by her husband (CB 70.4).

   The Tribunal accepted the applicant’s evidence about the provenance of her written claims. It found that no weight could be placed on them (CB 70.4). 

5. At the hearing, the Tribunal asked the applicant what she feared about returning to China. In response the applicant raised a concern about overpopulation and pollution in China and expressed concern over the welfare of her son who is studying in Australia and aged sixteen years (CB 70.5 to CB 70.6).

6. The Tribunal accepted these concerns may be genuinely held by the applicant, but was unable to identify in the information before it, any grounds for believing she would suffer serious harm for a Convention reason, if she were to return to China (CB 70.7). The Tribunal therefore was not satisfied that she was a refugee and affirmed the decision not to grant a protection visa (CB 70.7). 

7. The Tribunal did consider whether at the hearing before it the Court (held originally in conjunction with her husband’s hearing in line with their wishes), the applicant may have had difficulties in understanding the interpreter who was only conversant in Mandarin. The Tribunal therefore arranged for a subsequent hearing and confirmed with the applicant that she had no difficulties in understanding the interpreter (CB 71.3). The Tribunal further noted that while the applicant appeared to have had some difficulty in answering some of the questions, this was due to “the substance of the questions rather than to problems with the interpretation of them” (CB 71.4).

8. The applicant puts forward five grounds of review in her amended application (these are identical to what was put forward by her husband): 

   “(1)The Tribunal did not refer to any independent information for the consideration of my application for a protection visa.”

   “(2)I was very scared at the hearing, and the Tribunal did not consider my claims in writing.  I was too scared to give oral evidence at the hearing invited.  The Tribunal therefore had bias against me and refused to consider my application with correct procedure.”

   “(3)The Tribunal failed to assess the chance of my persecution on my return to China.”

   “(4)The Tribunal did not observe Migration Act 1958 properly in making the decision.”

   “(5)The Tribunal had bias against me because my education is limited and I could not communicate with the officer very well.”

9. At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr. A. McInerney appeared for the respondent. This matter was heard in conjunction with that of her husband, although both parties were dealt with individually and separately.

10. At the hearing before the Court, the applicant sought to rely on submissions as made by her husband in relation to his application. See SZHCD v Minister for Immigration and Citizenship [2007] FMCA 658 at [10].

11. I understand the submissions therefore as they related to this applicant to:

    (1)Make an unexplained reference to s.91R of the Act.

    (2)Claimed that the Tribunal did not refer to any independent country information.

    (3)Claimed that this showed that the Tribunal was biased.

    (4)Claimed the Tribunal did not understand the contents of the application.

    (5)Claimed therefore, the application was “not considered” (according to) “normal procedures”.

    (6)Claimed the Tribunal did not make its decision based on “written submissions”.  It relied on what occurred at the hearing, where the applicant was nervous.  She could not express herself “very well” at the hearing for this reason and because she had “very little education”.

    (7)Claimed the Tribunal did not provide “sufficient” reasons to refuse the application.

12. To a large extent, the statements above reflect the complaints in the grounds as stated in the amended application.

13. Before dealing specifically with each of the grounds, I should note that on a plain reading of the Tribunal’s decision record, it found on what the applicant said at the hearing before it, that it accepted the applicant’s evidence that she was unaware of the claims advanced in her application for a protection visa, and in her application for review.  Therefore, it placed “no weight” on these claims.  On what the applicant then said in relation to her fear of returning to China, the Tribunal was unable to identify any nexus to the matters relevantly required pursuant to the Refugees Convention, and was therefore not able to be satisfied that the applicant had a well founded fear of persecution for a Convention reason, and that she could be said to be a refugee.

14. I cannot discern jurisdictional error in what the Tribunal has done in this regard. On the material before it, these findings, for which it gave reasons, were open to the Tribunal.

15. The weight to be accorded to evidence or information provided by the applicant at a hearing is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCA 10 at [11]).

16. Nor can it be said that this is a case where the Tribunal compared inconsistencies in information provided in the protection visa application with what was subsequently said at the hearing such that (with reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Al Shamry v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1679, and the illumination provided in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2), it could be said the Tribunal failed to meet its statutory obligation set out in s.424A of the Migration Act (“the Act”). The Tribunal’s decision turned wholly on what the applicant herself said at the hearing before it, such that any such information, being the information on which the Tribunal relied, in whole, for its decision, fell within the exception contained in s.424A(3)(b) of the Act from the requirements in s.424A(1) of the Act. The Tribunal accepted what the applicant said at the hearing as to the provenance of the written applications. It then proceeded to make its decision on what the applicant herself put to it. The information (relevant to the “s.424A issue”) in the protection visa application was therefore not a part of the reasons for its decision.

17. The applicant claims in her amended application that the Tribunal did not refer to any independent information.  There is nothing before the Court now to show that the applicant put any such information before the Tribunal, or asked the Tribunal to make enquiries, or even referred the Tribunal to any such information.  Ultimately, having found the applicant’s claims had no Convention nexus, the Tribunal was not required to proceed further and refer to any country information.

18. The applicant claims that she was “too scared” at the hearing to give evidence. Before the Court, the applicant’s assertion (through the submissions read to the Court) was that she was nervous and could not express herself “very well” at the Tribunal hearing. The applicant’s complaint, in context, therefore, can be seen to be that she was denied the opportunity of a hearing before the Tribunal as contemplated by s.425 of the Act (see also the reference to “bias” below).

19. The applicant has put no evidence before the Court about what she says occurred at the hearing.  The Court can only proceed on the evidence before it (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

20. The Tribunal’s unchallenged account of what occurred at the hearing (reproduced at CB 69.1 to CB 69.8 and CB 70.4 to CB 71.5) reveals that the Tribunal asked the applicant relevant questions, and particularly, that she was given the opportunity to explain what she feared about returning to China.  The applicant had the assistance of an interpreter in the Mandarin language (CB 55.7 to CB 71). The Tribunal’s (unchallenged) account shows that she did give evidence and was given the opportunity to comment. Further, the Tribunal specifically turned its mind as to whether the level, or the nature of the interpretation provided was adequate. It took steps to provide the applicant with a hearing separate to that of her husband and confirmed that she understood the interpreter, and that the interpreter understood her. Even further, it considered whether the nature of her responses was due to some deficiency in the level of interpretation and found the “difficulties she was experiencing” was with the “substance” of the questions, rather than any problem with interpretation.

21. I cannot see on what is before the Court now that the applicant was denied the opportunity of a hearing (the opportunity was not a “hollow shell”) as required by s.425 of the Act. There is no evidence to support the mere claim that her “nervousness” affected her capacity to communicate with the presiding member. Nor is the complaint about the adequacy or level of interpretation provided by the interpreter at the Tribunal hearing.

22. The applicant further claims that the Tribunal was biased.  This is said to be because she was too scared to give evidence and that the Tribunal was “against her” because her education was limited. To the extent that this allegation relies on what the applicant now says occurred at the hearing, again no evidence has been put before the Court to challenge the Tribunal’s account of what occurred. Further, the Tribunal specifically considered the applicant’s capacity to understand the questions as they were interpreted to her. It found rather, that the problem was with the substance of the questions. Further the Tribunal noted the applicants “somewhat diffident and unsophisticated nature”, but that she was not “over-awed…or unable to respond.” (CB 71.5). There is nothing before the Court now to challenge the Tribunal’s finding that “she was able to participate effectively in the hearing...”. (CB 71.5). 

23. With reference to relevant authority as to the relevant test (Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 and NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328). I cannot see on what is before me that the presiding Tribunal member had a state of mind so committed to a conclusion already formed as to be incapable of being persuaded differently.

24. Nor for that matter can it be said that there is evidence before the Court to support a proposition that a fair minded lay observer might reasonably apprehend that the presiding Tribunal member did not bring an impartial mind to the proceeding (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28).

25. The applicant’s complaint that the bias of the Tribunal member can be shown “because my education is limited” is without substance.  While the applicant had not provided any details of formal education to the Tribunal there is nothing in the material before me to suggest that this caused the Tribunal to close its mind to what the applicant was saying. Further, the Tribunal specifically turned its mind to whether the “unsophisticated nature, perhaps reflecting her lack of formal education” was the cause of difficulties she appeared to have in answering questions (CB 71.4). Far from showing bias on the part of the Tribunal, in my view, this reveals a Tribunal attuned to the need to provide a fair hearing to an applicant.

26. I cannot see that the Tribunal failed in the exercise of its jurisdictional duty to properly assess the applicant’s claims, such as they were ultimately put to it. Nor can I discern any failure to “properly observe” the Act (the other matters referred to in the amended application).

27. The applicant’s reference to s.91R of the Act before the Court was unexplained. In any event, I cannot see that the matters contained in that section had reference to the Tribunal’s decision. This is not a matter that required the Tribunal to consider the issue of “persecution” in the context of what constituted the “essential and significant reason” for the persecution. Nor did the Tribunal’s decision involve consideration of the applicant’s conduct in Australia.

28. The applicant was unable to assist the Court by what was meant by the statement that the Tribunal did not make its decision based on written submissions.  No “written submissions” were made to the Tribunal.

29. If what is meant is that the Tribunal did not give the applicant the opportunity to make submissions in writing, as opposed to proceeding on what was said at the hearing, then there is nothing before the Court to show that the applicant sought such an opportunity.  The Tribunal’s record of what occurred at the hearing indicates that the Tribunal gave the applicant the opportunity to make comments on issues relevant to the application.  If the applicant feels now that she had been unable to communicate her claims to the Tribunal at the hearing, then there is nothing to show she sought any alternative, or further opportunity.  Nor on what is before the Court can it be said that there was any obligation on the Tribunal to have provided such an opportunity, beyond the consideration that it relevantly gave which resulted in a “subsequent separate hearing” to that held with her husband.

30. This is not a case where the Tribunal had doubts about the applicant’s credibility.  In fact, the Tribunal accepted what the applicant said.  I cannot see that the applicant’s level of education, nor on what is before me, any other factor, would have prevented the applicant from putting to the Tribunal what her fears were.  What she did put, caused the Tribunal to find that there was no Convention nexus.  This was plainly open to the Tribunal. With reference to what was said at the hearing before the Court, the Tribunal’s reasons were “sufficient” to explain its ultimate conclusion. I cannot see that the allegation that the Tribunal did not understand the contents of the application can be made out. The Tribunal dealt with what the applicant ultimately put to it.

31. I cannot discern jurisdictional error in the Tribunal’s decision.  The application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date:  08 May 2007