SZHQE v Minister for Immigration - [2006] FMCA 947

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHQE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 947

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicants – applicants are citizens of the Peoples Republic of China – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) – whether there was any difficulty in interpreting the evidence of the second applicant – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 91R, 424A, 425, 474

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZBJW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1356

First Applicant:

SZHQE

Second Applicant:

SZHQF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3397 of 2005

Judgment of:

Scarlett FM

Hearing date:

20 June 2006

Date of Last Submission:

20 June 2006

Delivered at:

Sydney

Delivered on:

20 June 2006

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

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 3397 of 2005

SZHQE

First Applicant

SZHQF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 25^th October 2005 affirming a decision not to grant protection visas to the two applicants.
The applicants are husband and wife who are citizens of the Peoples Republic of China. They arrived in Australia on 25^th October 2004 and applied for protection (class XA) visas.
Those visas were refused by a delegate of the Minister on

3^rd March 2005 and on 4^th April the applicants applied to the Refugee Review Tribunal for review of that decision.
Along with the application for review the applicants provided a three page statement setting out their claims relating to the first applicant's difficulties with the authorities, which included forming an association of self employed people to protect their rights, and particularly the applicant's claim to have been involved in an underground Christian church.
The Tribunal invited the applicants to attend a hearing on

Thursday 16^th June. The applicants replied to that letter on

31^st May 2005 indicating that they did wish to attend and needed an interpreter in the Chinese language including Fujianese dialect. A copy of that letter is set out at page 67 of the Court book.
The applicants did attend the hearing of the Tribunal on 16^th June and both applicants gave evidence, even though it was only intended that the first applicant would give evidence. The Tribunal noted at page 105 of the Court book that in response to the request by the applicants for Fujianese dialect interpreter a Fujianese and Mandarin speaking interpreter was provided at the hearing. The applicants deny this.
The second applicant had told the Tribunal originally that she did not intend to give evidence but the Tribunal asked the applicant why she did not wish to give evidence which could corroborate her husband's claims, so the second applicant rather reluctantly it appears did give evidence.
The Tribunal heard evidence from both applicants and at the conclusion of the hearing decided to forward a letter to the applicants care of their migration adviser setting out certain matters upon which the Tribunal sought clarification. This letter was dated 5^th July 2005 and a copy of that letter is set out on pages 90 and 91 of the Court book.
The letter began by saying:
The Tribunal has information that would, subject to any comments you make, be the reason or part of the reason for deciding that you are not entitled to a protection visa.
The letter then set out particulars of information to be provided by it to the applicant which related to inconsistencies between the evidence of the two applicants and internal inconsistencies in the evidence of the second applicant. The letter went onto say:
The apparent inconsistencies between your evidence and your wife's evidence raise doubts about the truth of your refugee claims, your credibility and your wife's credibility. The fact your wife had not mentioned any problems with her memory until the tribunal put to her that there seemed to be an inconsistency between her oral evidence and your oral evidence, and the fact that she has not sought any medical treatment for any memory problems suggest that she may have invented the alleged memory problem to explain the apparent inconsistency. This also raises doubts about her credibility.
The applicants' migration agent wrote to the Tribunal on 19^th July 2005 enclosing a two and half page statement by the first applicant.

That statement was also dated 19^th July. That letter contained the first applicant's answers to the earlier letter relating to inconsistencies between the parties' evidence and the second issue, the second applicant's claim that her memory had deteriorated.
The letter also referred to the applicants' complaint set out at the hearing about some difficulties in respect of the interpreter at the Tribunal hearing dealing with the wife's Fujian or Fuqing accent.
The letter referred to the wife having a strong accent and a poor ability to speak in Mandarin and the letter went onto say:
I have to say that the interpreter indeed had some problems.
The Tribunal did not sign its decision until 30^th September 2005 and handed the decision down on 25^th October. The Tribunal set out its findings and reasons over several page and they appear at pages 117 through 122 of the Court book. At page 117 the Tribunal expressed the opinion that the Tribunal did not find either applicant to be an impressive witness and said:
In assessing the evidence of the applicants the Tribunal has taken into account the explanations they have provided at the hearing and in the s.424A comments, the problems the Tribunal identified with their evidence.
The Tribunal then went onto refer to the explanation in the applicants' letter of 19^th July about the second applicant's use of the Fuqing dialect in her everyday life and her poor understanding of Mandarin.
The Tribunal made this statement which appears on pages 117 and 118 of the Court book:
The Tribunal would not have proceeded to conduct the hearing and take evidence from the applicants if there was any indication at the time that the interpretation provided at the hearing was inadequate. The applicants requested a Fujianese interpreter for the hearing and this was provided. The Tribunal notes that the second named applicant had not intended to give evidence and thus may have requested a Fuqing interpreter if she had intended to do so but the second named applicant was present during the Tribunal's preamble to the hearing during which the interpreter was used and the Tribunal explained that if there are any difficulties with the interpreter the Tribunal should be informed immediately. At no stage during the hearing did the second name applicant indicate that they -
and that should be "she":
did not understand the interpreter.
The Tribunal decided the matter on the basis of the applicants' credibility. At page 119 the Tribunal found the first applicant's responses to its questions about what he feared would happen to him if he returned to China were rehearsed or appeared to be rehearsed.

The Tribunal went onto describe how the applicant appeared to be evasive in respect of certain questions and the tribunal said:
It seemed to the Tribunal that when it came to matters the first named applicant had not referred to in his protection visa application his answers were far less direct and responsive.

He gave the Tribunal the impression that he had learned what was written in his protection visa application and was not speaking naturally or spontaneously at the hearing from actual personal experience about the other matters raised by the Tribunal.
In respect of the second applicant, the Tribunal took into account the fact that she claims to have almost no education and accepted that she may feel shy about talking to strangers and officials and was also prepared to accept that she was nervous to some degree.
However, the Tribunal at page 120 expressed the opinion that the second applicant did not believe what she was saying and said:
In other words it did not seem that she was speaking naturally and spontaneously about these matters.
The Tribunal went onto refer on pages 120 and 121 of the Court book about other problems with the applicants' evidence including discrepancies between the evidence of the two parties and at page 120 internal discrepancies in the second applicant's evidence.
At page 121 the Tribunal concluded:
In light of the above problems with the evidence of the applicants, the Tribunal has concluded that they are not credible witnesses. It thus finds that their claims about their religious practice and activities in China have been entirely fabricated.
The Tribunal was not satisfied that the first applicant was a person to whom Australia has protection obligations and noted that the second applicant's application depends on the outcome of the first applicant's application and affirmed the decision not to grant the protection visas.
The applicants sought judicial review of this decision and filed an amended application on 22^nd March this year. The amended application contains an extensive statement about relevant sections of the legislation including s.65 and sub-s.36(ii) of the Migration Act refers to the definition of a refugee, sets out the impact of ss.91R and 91S of the Act. Sets out the fact that there are four key elements to the convention definition.
That material is not a subject of controversy between the applicants and at least the second respondent because it is a close paraphrase of the assertions about the relevant law that appears in the Tribunal decision and is set out at pages 100 through to 102 of the Court book.
Where the applicants diverge from the second respondent are that they allege that there are two grounds for review.
i)There was an error of law in the Tribunal's decision constituting a jurisdictional error;
ii)two there was procedural error in the Tribunal's decision constituting an absence of natural justice.
The application sets out four particulars which are in effect grounds. They are in short:
i)Failure to comply with s.424A(1) of the Migration Act;
ii)Failure to comply with s.425 of the Act;
iii)Failing to properly assess the application and the evidence; and
iv)Failing to assess the application fairly and carefully.
In respect of the ground of the breach of s.424A, the amended application asserts that the Tribunal has:
Never ever
given the applicant the information about the Tribunal's concerns or the negative issues that the Tribunal has considered the main reason for affirming the decision that was under review. The applicant also referred to this claim in his oral submissions.
The fact is that the Tribunal wrote a s.424A letter to the applicants on 5^th July setting out exactly those concerns and the applicants through their migration agent replied in some detail. The text of the decision shows that the Tribunal considered but rejected the explanation given in the applicants' s.424A letter. In my view there is no breach of s.424A of the Migration Act.
As far as the failure to comply with s.425 of the Migration Act is concerned, it is a fact that the Tribunal did invite the applicants to attend a hearing and they both gave evidence. There is an allegation through the alleged inadequacy of the interpretation provided that the invitation did not give to the applicants a fair hearing. In my view that is not made out. The applicants assert that the interpreter provided may have been fluent in Mandarin but did not have an ability to speak Fujian. The Tribunal was of a view that the interpreter had an ability to speak both dialects. The Tribunal set out why it believed that there was not a problem with interpretation at the hearing and set out that the Tribunal would not have continued with the hearing if it considered that there were interpretation problems with the second applicant's evidence.
I am also referred by counsel for the respondent minister to the decision of Jacobsen J in SZBJW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1356 at [35] where his Honour said:
In any event the weight of authority is that s.425 is a procedural requirement. The invitation must be real and meaningful, not an empty gesture. It does not bear on the procedures followed at the hearing which may be affected by any want of procedural fairness.
There is no transcript provided to indicate that there is any difficulty at the hearing and I am satisfied from the explanation in the text of the Tribunal decision that the hearing was conducted fairly. There is no breach of s.425.
Paragraph 3 of the applicants' amended application sets out five grounds:
Namely identifying a wrong issue, asking a wrong question, ignoring relevant material, relying on irrelevant material and making an erroneous finding.
I asked the first applicant of the hearing what was the important information that had been ignored and for an explanation of this and the applicant returned to the s.424A and s.425 claims. It appears to me that the five claims in ground 3 are really no more than complaints about the Tribunal's findings of fact and they are therefore incapable of constituting jurisdictional error. I am referred by counsel for the minister to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
The ground that the Tribunal failed to assess the application fairly and carefully or failed to assess the applicants' fear of persecution for the reason of religion to my mind cannot stand. The applicants have set out a number of factual matters there but it is a situation that the tribunal did consider the applicants' factual claims and at page 113 of the Court book the decision refers to the Tribunal's asking the applicant if there was any other reason than religious which would preclude the applicants from returning to China.
The words specifically are:
The Tribunal asked the first named applicant whether if it was not for his religious activity he could return to China without facing persecution. He replied that he could.
In my view the other complaints by the applicants, apart from the alleged breaches of s.424A and 425, amount to no more than cavilling of the Tribunal's factual findings and constitute a request for merits review. Merits review is not available. The Court on a judicial review does not make its own decision on the factual evidence. Fact finding is a task for the decision maker.
I am not satisfied that there was an interpretation problem which the Tribunal failed to take into account. There appears to me to be no other jurisdictional error that I have discerned in reading through the Tribunal's decision. As there is no jurisdictional error I find that the decision is a privative clause as set out in s.474 of the Migration Act. The application is dismissed.
There is an application for costs on behalf of the first respondent minister. In my view this is a matter where costs would normally follow the event. The amount sought is $5,000.00 inclusive of counsel's fees. I am aware that this is a matter that was commenced prior to

1^st December 2005 and thus the old scale applies.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 30 June 2006