SZHNQ v Minister for Immigration
[2006] FMCA 1088
•28 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHNQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1088 |
| 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 – citizen of China claiming to fear persecution on the ground of her religious belief – whether applicant was not given a proper hearing because of her hearing difficulties – whether Tribunal breached an obligation under Migration Act 1958 (Cth) s.424A – whether there was a reasonable apprehension of bias – whether Tribunal breached an obligation under Migration Act 1958 s.425 – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474, 475A |
| VAF v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 471 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Attorney General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration & Multicultural Affairs v SGLB (2004) 78 ALJR 992 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 361 |
| Applicant: | SZHNQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3264 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 July 2006 |
| Date of last submission: | 28 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Muthalib |
| 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 3264 of 2005
| SZHNQ |
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 12th September 2005, after a hearing that took place that same day.
The Refugee Review Tribunal handed down its decision on 4th October 2005. The Tribunal affirmed the decision of the delegate of the minister, 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 11th January 2005, and applied for a Protection (Class XA) visa on 23rd February. A delegate of the minister refused the application on 14th April 2005; so, the Applicant sought a review of that decision by the Refugee Review Tribunal.
On 18th May 2005, the Applicant's migration agent lodged an application for review of the delegate's decision with the Tribunal. Along with that application was a four-page statement arguing her case. The Tribunal wrote to the Applicant's migration agent, inviting the Applicant to attend a hearing on Friday 9th September 2005. This date was subsequently changed to Monday 12th September.
The Applicant attended the hearing and provided to the Tribunal a brief letter, stating that she attended a church meeting in Blacktown - without specifying the name or denomination of the church - every Sunday morning. The Applicant told the Tribunal that she feared persecution in China because she was a Christian and member of Recovering Local Church, which was regarded as an illegal organisation.
She claimed that her mother was a pious Christian and an activist in the church. As a result, her mother had been subjected to continual interrogation or detention by the Public Security Bureau. This eventually led to the mother's death. The Applicant said that she herself was regarded as the main leader to set up and develop the illegal Shouters organisation in Ying Tan city, and would be persecuted on her return to China.
The tribunal’s findings and reasons
The Tribunal asked the Applicant a number of questions about her religious belief and about her activities in China. The Tribunal's findings and reasons are set out on pages 68 through to 72 of the Court Book.
The Tribunal accepted that the Applicant was a citizen of the People's Republic of China, having seen a photocopy of her passport. The Tribunal did not, however, accept that there was any basis upon which it could be satisfied that the Applicant would have more than a remote chance of being persecuted for reason of her mother's former religious activities. The Applicant's mother had died when the Applicant, 37 years old at the date of the hearing, was aged five. The mother had been able to have a family, conduct a business and otherwise live a normal life in China.
The Tribunal also found that the Applicant did not have a detailed knowledge of Christianity as the Tribunal would have expected. The Tribunal was not satisfied that the Applicant was a leader of a church, as she had claimed.
In short, after putting these doubts to the Applicant and considering her claims, the Tribunal was satisfied that the Applicant had at least embellished, if not fabricated, her claims.
The Tribunal rejected all the Applicant's material claims, on the basis of its doubts about her credibility, and did not accept that the Applicant had a well-founded fear of persecution for a Convention reason in the People's Republic of China. Accordingly, the Tribunal affirmed the delegate's decision not to grant a protection visa.
The application for judicial review
The Applicant has brought an application under section 39B of the Judiciary Act 1903, seeking a review of the Tribunal's decision. In an amended application, filed on 29th March 2006, the Applicant seeks:
(1)a declaration that the decision is invalid;
(2) an order quashing, or setting aside, the Tribunal's decision; and,
(3) an order remitting the Applicant's application to a differently-constituted Tribunal for determination according to law.
The Applicant relies on the following grounds:
(a) error of law constituting jurisdictional error; and
(b) procedural error constituting an absence of natural justice.
The Applicant, in the Amended Application, provides particulars of those claims. She submits that, whilst she attended the hearing on 12th September, and the Tribunal did try to test her knowledge of Christianity, it is not fair to determine whether or not her belief was sincere, based on her performance at the Tribunal hearing, for two reasons.
First, the Applicant claims to have been suffering from a serious hearing problem for many years. Indeed, with her original application, filed on 9th November 2005, the Applicant submitted a report from the Australian Hearing and Balance Centre, containing the results of tests conducted on 21st October 2005. That document was not objected to by counsel for the Respondent.
The report included the results of both an audiogram and tympanogram. The audiometry and tympanometry tests showed abnormalities in both the Applicant's right ear and left ear. The comments on the audiometry results, from the audiometrist, are:
Audiometry results consistent with bilateral sensory-neural‑type hearing loss, worse at low frequency and in left ear. Bone conduction outside normal limits.
The comments in respect of the tympanometry are as follows:
Tympanometry shows Type B flat in both sides.
The Applicant also claims that the interpreter, during the Tribunal's hearing, was unable to interpret those special religious questions accurately and properly. On many occasions, she said, she could not understand what the interpreter said during the Tribunal hearing. The Applicant says also in her Amended Application that copies of the tape‑recording of the Tribunal hearing provided to her after the hearing, by the Tribunal, were completely empty. She submitted that nothing had been recorded on those tapes.
The Applicant also submits that there was a breach of sub-s.424A(1) of the Migration Act, relating to the Tribunal's finding that the Applicant did not appear to have a good knowledge of the Christian faith. Details of this claim are as follows:
a)the Tribunal failed to give the Applicant the particulars of the information;
b)the Tribunal failed to ensure that the Applicant fully understood why such information would be in relation to her review; and,
c)the Tribunal failed to invite her to comment on the information.
The Applicant submits that the Tribunal, in determining whether she was owed protection obligations by Australia under the Refugees Convention, erred in five respects:
a)failing to determine her case properly, including whether the harm feared amounted to persecution and whether that fear was well-founded;
b)misunderstood her case and failed to consider an essential claim in it;
c)asked itself a number of wrong and irrelevant questions;
d)failed to identify and consider the relevant issues to be determined; and,
e)incorrectly assessed her credibility.
She commented that the Tribunal had accepted that she was a national of the People's Republic of China and, therefore, it must accept that she is outside her country. She submitted that the Tribunal had unfairly denied that she must fear persecution, owing to her religious and beliefs and practices not tolerated by the authorities in the People's Republic of China. She submitted that the Tribunal failed to properly determine her fear of persecution on return, which must be for one of the reasons enumerated in the Convention definition - namely, religious belief. She claimed that the Tribunal failed to determine properly the actual level of her knowledge of Christianity.
The Applicant believes that the Tribunal must find that she is a person who must have a good knowledge of the Christian faith, if the Tribunal determined that properly. The Applicant submitted that the Tribunal failed to determine her claims properly, particularly her fear of persecution for a Convention reason being well-founded.
The Tribunal, she said, failed to seek any independent evidence from the underground church in China and failed to seek independent evidence from the local church in Australia. The Applicant said that the Tribunal failed to rely on important independent country information. Accordingly, she submits that the Tribunal's decision included a reasonable apprehension of bias and that the Tribunal proceeded on a misunderstanding of the law, at least in relation to defining its core task.
Again, the Applicant submits that the Tribunal failed to comply with its obligations under sub-s.424A(1) of the Migration Act, and again sets out the reasons why she makes that submission.
Finally, the Applicant submitted that the Tribunal failed to comply with its obligations under s.425 of the Migration Act, in that:
a)the Tribunal failed to provide her with a fair chance to give oral evidence; and,
b)the Tribunal failed to provide her, clearly and accurately, with particulars of the information, especially negative information or negative issues, and, as a result, she did not have a fair chance to comment on those pieces of negative information or negative issue.
The Applicant says that, in summary, she "never ever" believes that the Tribunal has assessed her application fairly and carefully.
In the light of such a comprehensive Amended Application, it is hardly surprising that the Applicant did not feel the need to file a written outline of submissions. She did, however, make oral submissions to the Court, at the hearing.
The Applicant complained that the Tribunal was preoccupied at the hearing, but gave no details of that preoccupation. She referred to her hearing problem and indicated that she relied on the report from the Australian Hearing Centre that was annexed to her original application. She reiterated that, because of that hearing problem, she could not hear questions properly, especially those relating to her religion, and, also, could not understand the problems that the Tribunal referred to in its assessment of her evidence.
The Applicant also reiterated that the audiocassette that she had received from the Tribunal was blank, and claimed that there was no record of the Tribunal proceedings. She challenged the validity of the hearing under s.425 of the Act, due to her hearing problems, and the claimed inadequacies of the interpreter at the hearing.
Dealing with the blank audiocassette, the Applicant told the Court that she did have the cassette but had not brought it to the hearing. When asked by the Court if she told the Tribunal that she had trouble hearing, she said, "Yes," and the Tribunal Member said:
I will try to speak louder.
The Applicant claimed that the Tribunal Member said to her:
We did not record the hearing.
It was put to the Applicant that the reason why the Tribunal had not accepted her claims was because the Tribunal just did not believe her evidence. The Applicant agreed with that, saying that the Tribunal said she just did not have the knowledge to satisfy the Tribunal.
At the hearing, Mr Smith of counsel for the First Respondent Minister told the Court that his instructing solicitor had a copy of an audiotape of the hearing. He said that a copy of the tape was sent to the Applicant's migration adviser and that, on 12th September, the date of the hearing, the Applicant was given a copy of the tape, and that she had signed an acknowledgement of receipt of that tape. He produced an acknowledgment of receipt which appears to have been signed by the Applicant, which I admitted into evidence, over the objection of the Applicant. The Applicant told the Court that she denied that evidence, and said that the tape was blank.
It was also put to the Court that the Applicant had received legal advice in respect of her ability to argue her case and, indeed, the Court file shows that a Mr Jackson of counsel gave the Applicant legal advice under the Refugee Review Tribunal advice scheme.
The Applicant said that the Tribunal knew that she had hearing problems, and submitted that the interpreter should have been called to give evidence. She reiterated that she had not received an audiotape of the hearing, or, at least, a tape that was not blank. She reiterated her belief that the Tribunal must have a record of the hearing.
Turning to the issues to be decided, I agree with the submission that the Applicant's claim that she was not given a proper hearing, because of both her hearing difficulties and the inability of the interpreter to interpret specific religious questions in an accurate and proper manner, is not supported by sufficient evidence. The hearing report, whilst, in my view, does set out - and I accept at face value - that the Applicant has some abnormalities in hearing, does not indicate that the Applicant lacked an ability to understand the questions put to her through the interpreter at the hearing.
The Tribunal record shows that the interpretation was that provided by a level 3 interpreter, and there is no evidence to show that that interpretation was deficient or below the standard expected from an interpreter of those qualifications. The ground, which is repeated, that the Tribunal breached s.424A(1) of the Migration Act has not, to my mind, been made out.
The Tribunal did not rely upon any information not covered - certainly not covered by the exception under sub-s.424A(3). The Tribunal was not satisfied with the Applicant's evidence. It was the Tribunal's assessment of the evidence given by the Applicant at the hearing and her answers to the questions put by the Tribunal that formed part of the Tribunal's reasons for its decision, and, indeed, a major part. It is well‑established that the thought processes of the Tribunal do not constitute information for the purpose of subsection 424A(1). (See VAF v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 471).
In respect of the five grounds contained within paragraph 5 – namely:
a)failure to determine the Applicant's case properly, including whether the harm feared amounted to persecution was well-founded;
b)misunderstanding the case and failing to consider an essential claim;
c)asking itself a number of wrong and irrelevant questions;
d)failure to identify and consider the relevant issues; and,
e)incorrectly assessing the Applicant's credibility.
I am of the view that these constitute assertions, without particularisation. In particular, ground 5(e), an incorrect assessment of the Applicant's credibility, appears to me to be an attempt at obtaining merits review. Merits review is not available on judicial review, and I refer to the well‑known decision of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
An assessment of credibility is a factual assessment, which remains firmly in the province of the decision‑maker. Provided that there is evidence upon which the Tribunal can properly make that finding, the Court will not interfere. The well-known authority, the judgment of McHugh J in the matter of Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 makes that quite clear. No jurisdictional error has been made out in respect of that ground.
As to the Applicant's assertion, quite correctly, that the Tribunal found that she was a national of the People's Republic of China and therefore outside her country, that is unexceptionable and does not constitute jurisdictional error.
The allegation of unfairness in ground 7, that the Tribunal has unfairly denied the fact that the Applicant must fear persecution, is a matter to which counsel for the First Respondent has drawn the Court's attention. Counsel submits, and, in my view, correctly, that judicial review is not concerned with the fairness or otherwise of decisions but only with their legality. My attention has been drawn to the decision of the High Court of Australia in Attorney-General (NSW) v Quin (1990) 170 CLR 1.
The Tribunal's conclusion about the Applicant's likelihood of persecution and the reality of her fear of persecution was based on findings of fact. There was evidence available from which the Tribunal could make that determination. There is no legal error. No jurisdictional error is made out in respect of that.
The Applicant's claim also that the Tribunal failed to determine the Applicant's actual level of knowledge of Christianity, which formed part of an alleged failure to determine her fear of persecution based on religious belief, cannot stand. The Tribunal investigated the Applicant's knowledge of Christianity, in an extensive hearing, and, after questioning the Applicant in some detail about this matter, made a finding as to the superficiality of the Applicant's knowledge in that regard. No error is shown.
Ground 9, setting out the Applicant's belief that the Tribunal must find that - if it determines matters with a proper method that the Applicant has a good knowledge of the Christian faith - is indeed an attack on the merits of the Tribunal's finding. As I said, merits review is not available on judicial review.
The Applicant's claim in paragraph 10 of her Amended Application - that the Tribunal failed to determine her claims of a well-founded fear of persecution for Convention reason, because the Tribunal failed to seek independent evidence, misconstrues the obligation of the Tribunal in conducting a hearing. True it is that, under ss.424 and 427, the Tribunal may make its own inquiries and obtain its own information. There is no obligation upon it to do so. Failure by the Tribunal to make independent inquiries is not a jurisdictional error. (See Minister for Immigration & Multicultural Affairs v SGLB (2004) 78 ALJR 992 at [43]).
In paragraph 11 of the Amended Application, the Applicant complains that the Tribunal failed to rely on independent country information. No country information was referred to, and the Applicant does not provide any indication as to what country information the Tribunal should have considered. In my view, if there was country information that the Tribunal considered important, then that should have been brought to the attention of the Tribunal by the Applicant, or by her migration adviser.
In that same paragraph, the Applicant refers to a reasonable apprehension of bias on the part of the Tribunal Member. Bias is a serious allegation and indicates personal fault on the part of the decision–maker. It is well-established by the Full Court of the Federal Court, in such decisions as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 361, that the bias must be specifically alleged and strictly proved. It is rare indeed that a Court will make such a finding, particularly where all that the Applicant relies upon are the written reasons for the decision. There is no evidence of bias.
Similarly, there is no evidence that the Tribunal misunderstood the law, including misunderstanding the legal meaning of "refugee".
Again, the Applicant has alleged a breach of s.424A of the Migration Act but has provided no particulars of it. I have previously found there is no breach of s.424A, and no jurisdictional error is made out.
Again, the Applicant complains of a breach of s.425 of the Migration Act, in failing to provide the applicant with a proper hearing. There are two bases given for this: one, a failure to provide the applicant a fair chance to give oral evidence; and, secondly, a failure to provide the Applicant, clearly and accurately, with particulars of information, especially negative information or negative issues.
In considering this ground, I am unable to identify any reason as to why the Applicant was denied a fair chance to give oral evidence. No such inability to give oral evidence emerges from the pages of the Tribunal decision. The Applicant attended the Tribunal and an interpreter was available, although I am mindful of the fact that the Applicant has complained about the interpreter's ability.
The Tribunal, at page 66 of the Court Book, sets out the details of the claims put by the Applicant at the hearing. These claims appear to me to be essentially similar to the claims made by the Applicant in her application for review, and, in particular, the very well-drafted and extensive statement, presumably prepared by the Applicant's migration agent and submitted with the application for review. The text of that document appears on pages 42 through to 45 of the Court Book, and it is clear that the Tribunal, in its decision, paid attention to the matters argued by the Applicant, or by the Migration agent on her behalf, in that statement. The Tribunal's account of the Applicant's evidence, as I said, appears to me to be consistent with what the Applicant had put in writing beforehand. In short, there is no evidence that the Applicant was not given a proper opportunity to give oral evidence.
As to her claim of what may be characterised as procedural unfairness, in failing to provide the Applicant with particulars of negative information at the hearing, and thereby not giving her a fair chance to comment on that material, the Tribunal decision does not appear to support that. On reading the decision, on pages 66, 67 and 68, the Tribunal sets out certain issues and doubts that the Tribunal Member had and particularly describes the questions which he asked her, and then gives a description of the Applicant's answers. As an example, at the bottom of page 66 of the Court Book, the Tribunal Member said:
I put to her that I would have anticipated that a person who had led Bible study groups and services for the past four years would have a more detailed knowledge of Christianity. I then asked her what parts of the Bible she had read.
The Tribunal, at the top of page 67, then sets out the answers given by the Applicant. Again, at page 69, at about point 5 of the page, the Tribunal Member - in the findings and reasons - sets out the issues that he raised with the Applicant and describes the answers that she gave.
In my view, the Tribunal Member did give the Applicant a fair chance to comment on negative issues which the Tribunal Member raised. The Member expressed his doubts about certain parts of her evidence and his understanding of what he would expect a person in the Applicant's position to know. He put those matters to the Applicant and she replied. The fact that the Tribunal Member was not satisfied with the answer that he received does not indicate that the Applicant was not given a fair chance to reply. No jurisdictional error has been made out.
I did read through the Tribunal decision myself quite thoroughly. I am mindful of the fact that, even though the Applicant had obtained legal advice from a barrister who is on the Refugee Review Tribunal panel, she was not legally represented. I am also aware that a person's whose first language is not English is at a disadvantage in conducting her own case in a Court of law. The situation is made even more difficult for an Applicant, due to the fact that proceedings of this nature, involving judicial review and administrative decisions, are essentially very technical proceedings.
In my view, it is incumbent upon a Court, in the interests of justice, to conduct its own independent scrutiny of the Tribunal decision, in order to ascertain whether there is some other form of jurisdictional error, which the Applicant may not have brought to the attention of the Court. In my view, this is a general practice in the Federal Magistrates Court. That said, I am unable to discern any jurisdictional error.
In my view, there is no reviewable error, which means I find that the decision is a privative clause decision, as defined in s.474(2) of the Migration Act. Being a privative clause decision, relief in the nature of certiorari, prohibition or mandamus does not lie.
I would comment that the Amended Application, in fact, seeks an order that the matter be remitted to a differently constituted Refugee Review Tribunal. I am not of the view that a Court, even if it did make an order in the nature of mandamus, would normally find it appropriate to direct that the Tribunal should be differently constituted. It may be that, if the Court were to find an example of bias, then, that is a matter that would cause the Court some concern, if the same Tribunal Member were to hear the matter again. In the ordinary course of events, however, if the Court does find jurisdictional error, in my view, the constitution of the Tribunal on a rehearing is entirely the matter for the Principal Member of the Refugee Review Tribunal.
It is not, to my mind, appropriate, therefore, in an application to this Court, to include, as a matter of course that any order remitting an application to the Tribunal should specify that the Tribunal should be differently constituted. There would need to be a good reason made out in this Court before the Court would contemplate such an order. I accept that that is not a relevant matter as far as the Applicant's case is concerned, as I am not satisfied that there is any jurisdictional error.
The application will be dismissed, and I will hear submissions on costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 1 August 2006
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