SZHDZ v Minister for Immigration and Anor
[2007] FMCA 1546
•3 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1546 |
| 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 a citizen of China claiming fear of persecution for religious belief and involvement in religious activities – Shouters underground Church – claim to have distributed religious materials – credibility – procedural fairness – where applicant claimed that he was provided with a Mandarin interpreter at the Tribunal hearing but his first language was Fujian – whether Tribunal made erroneous findings – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – illogicality – no jurisdictional error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.422B, 424A, 425, 474 |
| SZEPU v Refugee Review Tribunal [2006] FCA 633 referred to. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 referred to. Minister for Immigration and Multicultural Affairs v Epeabaka (1999) FCR 411 referred to. NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 referred to. NAYD v Minister for Immigration (2005) 223 ALR 154; [2005] FMCA 739 referred to. SZBLY v Minister for Immigration (2005) 219 ALR 707; [2005] FMCA 922 referred to. NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 followed. |
| Applicant: | SZHDZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2669 of 2005 |
| Delivered on: | 3 September 2007 |
| Delivered at: | Sydney |
| Hearing date: | 21 August 2007 |
| Date of last submission: | 21 August 2007 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $14,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2669 of 2005
| SZHDZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 3rd August 2005 after a hearing that took place the day before. The Refugee Review Tribunal handed down its decision on 23rd August 2005.
The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs[1] made on 22nd March 2005 not to grant a Protection (Class XA) visa to the Applicant. The Applicant filed his application for judicial review on 21st September 2005, claiming a fear of “prosecution” (presumably ‘persecution’) in his home country because of his religious beliefs and religious involvement.
[1] Now known as the Minister for Immigration and Citizenship
He is now asking the Court for a writ of certiorari quashing the Tribunal’s decision, a writ of mandamus compelling the Tribunal to decide his case according to law, and a declaration that the Tribunal decision is null and void.
Background
The Applicant is a citizen of The People’s Republic of China who arrived in Australia on 20th December 2004. He applied for a Protection (Class XA) visa on 10th March 2005, claiming a fear of persecution because of his religious belief and his religious activities in China. A delegate of the Minister refused the application for a visa on 22nd March 2005.
Refugee Review Tribunal proceedings
The Applicant applied to the Refugee Review Tribunal on 26th April 2005 for a review of the delegate’s decision. The Tribunal wrote to him on 4th July 2005 and invited him to attend a hearing to give oral evidence and present arguments in support of his claims.
The Applicant attended the hearing on 2nd August 2005 and gave evidence. He claimed to be a pious Christian and an active member of the “Shouter” underground church in Fuqing City, which is in Fujian Province in China. He gave evidence that it was because of his activity in distributing Bibles and other religious literature and attending church gatherings that he came under notice of the police.
The Applicant said that, as a result of a police raid on a secret gathering in the home of a church member in August 2003, he had to go into hiding. He remained in hiding, first in the home of a relative and then in Hainan, where he acquired a new name. Eventually, in August 2004, the Applicant sought help from the shouter church in Hainan. One of the church leaders assisted him to obtain a visa for Australia and he left China in December 2004.
The Tribunal accepted that the Applicant is a national of the People’s Republic whilst noting that there was a question about his actual name.[2]
[2] Court Book at 67
The Tribunal noted that the Applicant had no understanding or knowledge the Christian faith or any commitment to it. The Applicant claimed that he did not understand Christianity and did not know about the Bible. He claimed to have been just a driver who helped the church by delivering materials. The Tribunal summed up the Applicant’s claim in this way:
The Applicant’s main claim made at the hearing, however, is not that he was persecuted because he is a Christian or a Christian activist but because he transported and distributed unknown but illegal religious material and that he was persecuted for this and, as he was the driver, they would put more punishment on him and may kill him.[3]
[3] Court Book at 69
The Tribunal found that the Applicant had produced no evidence that ever was the person whom he originally claimed to be. The Tribunal accepted that the Applicant’s passport was genuine and it showed that he was legally known by the name in his passport and was a resident of Hainan. The Tribunal did not accept that the Applicant previously had another name and came from Fuqing City. The Tribunal also found that this went to the matter of the Applicant’s credibility.[4]
[4] Court Book at 70
The Tribunal went on to find that if the Applicant’s claims about narrowly escaping a police raid, having his house searched and his family questioned by the police, having been told that the police had never stopped checking on his family and having learned that one of his colleagues had been imprisoned for three years, were true, then he would not just have gone into hiding at relative’s home for 6 months but would have immediately sought international protection. Accordingly, the Tribunal did not accept his claims.
In summary, the Tribunal did not accept that the Applicant was of any interest to the authorities in China and found that it was reasonable for him to return to Hainan, where he could live safely without there being a real chance of experiencing serious harm amounting to persecution for a Convention reason.
The Tribunal was satisfied that the Applicant did not have a well-founded fear of serious harm amounting to persecution for a Convention reason if he were to return to China and found that the Applicant was not a refugee.
The Applicant’s claims
In a Further Amended Application filed on 14th November 2006, the Applicant relies on four grounds:
1) The Second Respondent[5] failed to exercise jurisdiction because it denied the Applicant procedural fairness.
2) The Second Respondent failed to exercise jurisdiction in not properly determining whether the Applicant would be likely to suffer persecution by reason of his ‘transporting and distributing unknown but illegal religious material’.
3) The Second Respondent made erroneous findings on the evidence which led to mistaken conclusions constituting jurisdictional error.
4) The Second Respondent failed to comply with s.424A of the Act.
[5] i.e. The Tribunal
Denial of Procedural Fairness
The Applicant claimed that at the hearing he was provided with a Mandarin interpreter. His first language is Fujian. Although he can understand Mandarin he finds it difficult to express himself in Mandarin.
In support of that claim, the Applicant affirmed an affidavit setting out his claim. In that affidavit, he explained that his application for a protection visa and his application to the Refugee Review Tribunal were completed for him by a friend who was a Mandarin speaker. The friend did not ask him any questions about his preferred language.
The Application for Review can be found at pages 43 to 46 of the Court Book. On page 44, the form contains the claim that the Applicant would need an interpreter:
If yes, in what language? Chinese. Dialect: Mandarin[6]
[6] Court Book 44
The Applicant claimed to have been nervous at the hearing. He was provided with a Mandarin interpreter. He deposed:
6. During the hearing there were a number of occasions when I could understand the question being asked but could not adequately express my answer.
7. I told the Tribunal Member the population of my village near Fuqing City, Yu Qi, but he understood me to be saying that only 2,000 or 3,000 people lived in Fuqing City.
8. I misunderstood the Tribunal Member when he asked me about being ‘baptised’. This is not a word we use in my home village. We describe ‘baptism’ as ‘entering’ the Christian Church. I entered the church in 2002 but was unable (to) communicate this to the Tribunal Member.[7]
[7] Affidavit of applicant affirmed 31 January 2006 paragraphs 6-8.
The Applicant’s counsel, Mr Ower, submitted that the Applicant was required to explain a complicated factual background concerning his beliefs, his involvement in distributing religious publications, dealings with authorities, change of name and procurement of a passport. His presentation and the clarity of his answers critical to the assessment of the Applicant’s credibility. In the absence of a Fujian interpreter, he submitted, it is impossible to say confidently that the obligations of procedural fairness were met.
Failure to determine whether the Applicant would face persecution for distributing illegal religious materials
Mr Ower submitted that the Tribunal, having identified this as the Applicant’s main claim, did not simply discount the Applicant’s evidence on the basis of its inconsistency with the fact that the Tribunal found the Applicant’s passport to be valid, and in his real name. Rather, it compared each element of the Applicant’s account with the implausibility of going into hiding for six months. Had the Applicant sought “international protection” immediately, his evidence would have been more plausible. In the context of the Applicant’s claim, this does not logically follow. Mr Ower submitted that this amounts to a defective credibility finding.
Mr Ower submitted that the Tribunal must proceed on a rational basis and rely upon evidence that is logically probative, referring to the decision of Young J in SZEPU v Refugee Review Tribunal[8] where his Honour said that findings on credibility are not invulnerable to review, but:
They will not ordinarily be reviewable if the Tribunal has provided a rational basis for rejecting the claims and relied upon matters that were logically probative of the issue it was determining.[9]
[8] [2006] FCA 633
[9] [2006] FCA 633 at [6]
Mr Ower submitted that whether the Applicant sought international protection earlier or later is a non sequitur and that the credibility finding did not logically follow from probative evidence but from irrelevant conjecture. As a consequence, the Applicant’s main claim was not addressed.
Erroneous findings on the evidence leading to mistaken conclusions
Mr Ower submitted that the above argument also applied to the Applicant’s claim that the Tribunal made an erroneous finding on the subject of “immediate international protection”.
As to the claim that the Tribunal had made erroneous findings about the Applicant’s change of name or having come from Fuqing City, Mr Ower submitted that it was inaccurate to say that the first time the Applicant had made those assertions was at the hearing.
Failure to comply with s.424A of the Migration Act 1958
Mr Ower submitted that the Tribunal relied upon the reasons for decision of the Minister’s delegate that there was some doubt about the Applicant’s identity and occupation.[10] The Tribunal did not provide particulars of that information to the Applicant or explain the relevance of that information to the Applicant, thereby failing to comply with s.424A(1).[11]
[10] Court Book at 41 and 65
[11] SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
The First Respondent’s Case
The First Respondent, the Minister, relied on three affidavits:
a)Affidavit of Angela Louise Radich sworn 3rd November 2006, annexing a copy of the transcript of the Refugee Review Tribunal hearing on 2nd August 2005;
b)Affidavit of Angela Louise Radich sworn 7th August 2006, annexing a copy of the RRT Hearing Record for 2nd August 2005; and
c)Affidavit of Hui Xin Chen (also known as Linda Chen) affirmed 6 November 2006, to which were annexed copies of a Certificate of Accreditation issued by the National Accreditation Authority for Translators and Interpreters Ltd on 1st April 2003 and a Certificate of Recognition issued by NAATI on 16th September 2005.
Counsel for the Minister, Mr Kennett, in a written submission filed on 4th August 2006, submitted that:
i)The Applicant’s evidence in his affidavit was not a sufficient basis upon which to conclude that the Tribunal had failed to comply with s.425 of the Migration Act, as the court would not find that there was any relevant deficiency in the interpreting service provided.
ii)The Tribunal did address the Applicant’s claims in rejecting as implausible his account of the circumstances in which he left China and his claims that he was a Christian who delivered Bibles and illegal religious material. The Applicant’s contention was an attack on the internal logic of the Tribunal’s factual conclusions, but lack of logic does not in itself constitute an error of law or a ground of judicial review.[12]
iii)The Applicant’s claim that the Tribunal made erroneous findings is no more than a claim that the Tribunal made factual errors, which is not in itself a ground for judicial review.
iv)The Tribunal’s observation during the hearing that “as was stated in the delegate’s decision, there was some doubt about his identity and occupation”[13] was not information that formed any part of the reason for affirming the delegate’s decision (s.424A(1)).[14]
[12] Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, 420-2; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]-[29]
[13] Court Book 65
[14] SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs at [215]-[216] per Allsop J (Weinberg J agreeing at [155]).
Evidence
The Applicant gave oral evidence and was cross-examined on his affidavit. He said he was born in Fujian Province and speaks Fujian. He also learned Mandarin. He said he could not remember the name of his friend who helped him fill in the application for review by the Refugee Review Tribunal. He and the friend both spoke Fujian and Mandarin.
He identified his signature on the application for review (which said that he wanted a Mandarin interpreter). The interpreter at the hearing, Linda Chen, interpreted in Mandarin and not in Fuzhou. She had translated his affidavit of 31st January 2006 for him. She had used Fuzhou. He said that at the hearing he spoke to the interpreter in the Fujian language but she interpreted in Fuzhou. Sometimes, when he knew the Mandarin words, he used Mandarin.
When asked if he said anything to the Tribunal Member about having a problem with the language, he said that he did not. He said that he asked the interpreter but she told him it was not necessary to tell this to the Member.
In re-examination, the Applicant stated that the interpreter spoke in Fuzhou whilst he spoke in Fujian. He said that they were different languages.
Linda Chen’s Affidavit
There was no objection to the affidavit of Linda Chen and she was not required for cross-examination. Her evidence in her affidavit is that she is a translator and interpreter by occupation.
Ms Chen is fluent in oral and written Mandarin, Fuzhou and English. She was born and grew up in Fujian Province in China. She stated:
Fuzhou, the dialect spoken in Fujian Province, and Mandarin are my native languages.[15]
[15] Affidavit of Hui Xin (Linda) Chen 6.11.2006 paragraph 4
Ms Chen’s affidavit sets out details of her educational qualifications from universities in China and Australia. She deposes that she has worked as a translator and interpreter from about July 2003 to the date of the affidavit for her present employer. She had previously worked as an interpreter and translator for another employer from January 1998 to November 2001.
As to the events at the Tribunal hearing in question, Ms Chen deposed:
I was engaged through Conference Language Services to interpret for the applicant at the hearing conducted by the Refugee Review Tribunal on 2 August 2005. I cannot recall whether the applicant and I spoke to each other in Mandarin or in Fuzhou. However, I can recall that I had no difficulty understanding the applicant when he spoke to me during the hearing. I also recall that when I spoke to the applicant during the hearing he did not ask for clarification of what I said and his facial expressions did not indicate to me that he was having difficulty understanding what I was saying.[16]
[16] Affidavit of Hui Xin (Linda) Chen paragraph 10
Apart from the two affidavits of Ms Radich, there was no other evidence.
Conclusions
The Applicant’s first ground claims a denial of procedural fairness because he was hampered by not having an interpreter in his native language. The Tribunal’s obligation to provide procedural fairness to an applicant is governed by s.422B of the Migration Act. It is required to comply with the provisions of Division 4 of Part 7 of the Act.
The Tribunal’s obligation under s.425 to invite an applicant to a hearing includes the provision of an interpreter where necessary. If mistakes by the interpreter result in an applicant not being able to present his or case, there may be a failure to comply with s.425.[17]
[17] NAYD v Minister for Immigration (2005) 223 ALR 154; [2005] FMCA 739 at [17]-[24]; SZBLY v Minister for Immigration (2005) 219 ALR 707; [2005] FMCA 922 at [9]
In this case, however, I am not satisfied that the Applicant has proved that there was such a deficiency by the interpreter that he was denied a fair hearing. The affidavit of Ms Chen lends no support whatsoever to his claim. She was not of the view that the Applicant showed any difficulty in understanding. Ms Chen was not required for cross-examination and her evidence is uncontested.
It is also surprising that the Applicant claimed that Fuzhou and Fujian were two different languages, a matter not referred to by Ms Chen in her affidavit. Ms Chen is an accredited interpreted and translator who was born and grew up in Fujian Province. She deposed that Fuzhou and Mandarin were her native languages. If there were two different languages, Fuzhou and Fujian, it would be surprising if Ms Chen did not mention the fact. In any event, the Applicant originally complained that Ms Chen spoke in Mandarin, not Fuzhou. The current claim seems to have emerged only in cross-examination and bears all the hallmarks of recent invention.
I prefer the evidence of Ms Chen to that of the Applicant. I did not find the Applicant’s evidence about what happened at the Tribunal hearing to be credible. The Applicant has not produced any other evidence in support of his claim that there was a deficiency in the interpreting at the hearing and I am satisfied that this claim has not been made out.
The Applicant’s second ground – Failure to determine whether the applicant would face persecution for distributing illegal religious materials – complains of a defective credibility finding. The ground refers to a lack of logic in arriving at factual findings. It is well established that a want of logic does not constitute jurisdictional error[18]. In any case, I am not persuaded that the Tribunal decision is either illogical or irrational. The Tribunal considered various aspects of the Applicant’s evidence and, in the circumstances, did not accept his claims. As counsel for the Minister submitted, disagreement with the weight given by the Tribunal to various considerations in reaching its credibility finding does not establish that the finding lacked logic.
[18] NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52
The Applicant’s second ground fails.
The Applicant’s third ground – that the Tribunal made erroneous findings on the evidence leading to mistaken conclusions – cannot be sustained. It is quite clearly a cavilling at the Tribunal’s factual findings, but it is well established that finding facts and making conclusions based on those findings is a matter for the Tribunal. Merits review is not available on judicial review.
In my view there was evidence upon which the Tribunal was able to make the findings that it did. There is no jurisdictional error demonstrated and the Applicant’s third ground fails.
The Applicant’s fourth ground – failure to comply with s.424A of the Migration Act – relies upon the Tribunal’s statement that there was some doubt about the Applicant’s identity and occupation. This was referred to in the delegate’s decision at page 41 of the Court Book:
He has stated that he changed his name to (deleted)[19] in ‘early 2004’ when he went to hide in Hainan. I note however that his passport, issued on 11 April 2003, is in the name of (deleted). Consequently I do not accept the applicant’s claim that he changed his name to (deleted) in ‘early 2004’ when he had a passport issued in his name a year earlier.
[19] Name deleted to comply with s 91x of the Migration Act
The Tribunal referred this point to the Applicant during the hearing, and the Applicant replied.[20] The Tribunal found that the Applicant’s passport was genuine and was issued in Hainan on 21st April 2003. The Applicant produced his passport at the hearing[21] and the Tribunal made its decision about his identity based on that passport.
[20] Court Book 65
[21] Court Book 67
The passport falls within the exception in s.424A(3)(b). The Tribunal did not make its decision based on the delegate’s decision but on the Applicant’s passport and his evidence at the hearing when the Tribunal raised the issue with him. There was no information that came within the ambit of s.424A(1).
This ground fails.
The Applicant has not demonstrated any jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. As a privative clause decision it is final and conclusive.
The application will be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 10 September 2007
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