SZHJM v Minister for Immigration
[2006] FMCA 149
•30 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHJM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 149 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of the People’s Republic of China claiming fear of persecution for race, political opinion, membership of a particular social group and religion – ethnic Korean from Jilin Province – credibility. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 91R |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 24 followed |
| Applicant: | SZHJM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2992 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 January 2006 |
| Date of Last Submission: | 30 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,600.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2992 of 2005
| SZHJM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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 and handed down on
10th October 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of the People’s Republic of China.
He arrived in Australia on 23rd April 2004 and overstayed his visa.
He obtained employment and was eventually detained under the provisions of the Migration Act.
On 3rd August 2005 he applied for a protection class XA visa, which was refused the following day. On 5th August 2005 he applied for a review of that decision to the Refugee Review Tribunal. The applicant attended a hearing of the Tribunal where he gave evidence.
The Tribunal in its findings and reasons accepts that the applicant is a Chinese national and was an ethnic Korean from Jilin province.
The Tribunal accepted that the applicant worked for the Shenyang Railway Bureau from 1986 until 1997. The Tribunal did not accept as credible the applicant’s account of having been investigated for assisting three illegal immigrants from North Korea.
The Tribunal accepts that the applicant went to Japan in August 1997 but formed the view that he went to Japan purely for the purpose of working. The Tribunal was prepared to accept that the applicant had embraced the Christian faith since arriving in Sydney, but was not prepared to accept other important aspects of his claim.
The applicant’s evidence being regarded by the Tribunal as unsatisfactory and not credible, the Tribunal was not satisfied that he had a well-founded fear of persecution for a convention reason if he were to return to China.
The applicant applied to this Court for judicial review of the Refugee Tribunal’s decision under s.39B of the Judiciary Act. He filed that application on 17th October 2005 seeking that the Tribunal’s decision should be set aside.
The applicant set out four grounds for review in his application.
The first of them claims that the Tribunal constructively failed to exercise its jurisdiction and denied the applicant natural justice by applying the incorrect test for persecution under the Refugees’ Convention. The decision of the Tribunal does not support the applicant’s contention.
The Tribunal set out its understanding of persecution under s.91R of the Migration Act at page 146 of the Court Book. There is no error in the Tribunal’s setting out of the definition of persecution. I am not satisfied that the Tribunal has incorrectly applied the test for persecution in dealing with the applicant’s case.
It does not appear to me that there has been a denial of natural justice in the way that the applicant’s case has been conducted by the Tribunal. The applicant was invited to attend the hearing, and did so. He gave oral evidence and presented arguments in support of his claims.
Apart from one issue relating to the hearing to which I will turn in a moment, there seems to be no procedural unfairness or denial of natural justice in the way the hearing was carried out.
The applicant was legally represented and was afforded the opportunity to make a post hearing submission. He took advantage of that opportunity and detailed submissions were submitted by his solicitors.
The applicant set out three other grounds in his application.
Ground two says:
The Tribunal is prepared to accept that the applicant is a Christian and that I face a real chance of convention related persecution in China.
It appears that the word “not” may have been left out of that ground but, even taking the most beneficial construction of that ground, it would amount to nothing more than a request to seek a merits review, which is not available on judicial review. This has been set out in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at [272] and [291]-[292].
Ground three alleges an error of law, but does not particularise any error of law.
Ground four is incomprehensible and I find that grounds two, three and four must all fail.
The thrust of the applicant’s case is that he was denied natural justice because he had an interpreter in the Mandarin language, whereas the language that he prefers is in fact Korean. He is an ethnic Korean from an area of China where Korean is commonly spoken. He says he went to a Korean speaking school and his knowledge of Mandarin, despite the fact that it is the official language of his country of nationality, was limited and confined to what was necessary for him to perform his work with the railways.
One of the difficulties that arose with the interpreter is that the applicant says that the interpreter spoke in a dialect that departed from Mandarin as he knew it. Because of this, he complained to the Tribunal member and his advisers asked for a further hearing.
The first point to be made is that the applicant was provided with a Mandarin interpreter at the hearing because he asked for one. In the response to hearing invitation submitted through his solicitors, a copy of which appears at page 89 of the Court Book, the form was filled in to show that he asked for an interpreter in the Mandarin language.
The applicant told the Court that another detainee had told him that it would be better at the Tribunal hearing if he were to have a Mandarin interpreter rather than a Korean interpreter. The applicant did not provide any reason as to why this state of affairs should be so and it is difficult to understand why he would choose an interpreter in a language with which he was not entirely comfortable.
The applicant sought a Korean interpreter for the proceedings before this Court and an interpreter in that language was provided.
The Tribunal devoted a considerable part of its decision to the language question. The Tribunal sets out at pages 162 to 165 of the Court Book a consideration of the request for a hearing in the Korean/English medium. The Tribunal was not satisfied that the applicant had shown any particular deficiencies in the interpretation of the hearing. Nevertheless, the Tribunal invited the applicant to address in
post-hearing submissions any substantive issues that he might wish to revisit. A Korean/English interpreter was available for the purpose of preparing those submissions. The applicant, with the aid of his solicitors, provided two submissions, the most recent one being made on 21st September 2005.
The Tribunal considered the post-hearing submissions and referred to them in the decision. The Tribunal did not consider it necessary to conduct another hearing, but took the step of allowing post-hearing submissions to be made in order to make sure that the applicant was not disadvantaged from any difficulties with interpretation.
It should be borne in mind, as I said before, that it was the applicant who sought a Mandarin interpreter and this is not a case of a compromise being forced on the applicant by the Tribunal. If the applicant felt more comfortable with a Korean interpreter, he should have asked the Tribunal for one.
I am not satisfied that any procedural unfairness or denial of natural justice has been shown. I am satisfied that the Tribunal took adequate steps to remedy any deficiency in the hearing brought about by the applicant’s mistake in requesting a Mandarin interpreter. I see no jurisdictional error and I am mindful of the fact that the applicant was legally represented at the time of the Tribunal hearing, even though he was not legally represented in the proceedings before this Court.
As there is no jurisdictional error the decision is a privative clause decision. The primary reason why the applicant was unsuccessful before the Tribunal is because the Tribunal did not accept his evidence.
The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $4,600.00. The applicant has put to the Court that he has no money to meet those costs. I am prepared to accept that as he has been in Immigration detention for a number of months. Whilst that is not a reason to refuse an order for costs, it is a reason to allow time to pay.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,600.00. I allow six months to pay.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 February 2006
0
1
2