SZHWW v Minister for Immigration

[2007] FMCA 1302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHWW v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1302

MIGRATION – RRT decision – Chinese applicant claimed persecution as Shouter – disbelieved by Tribunal – no jurisdictional error found - application dismissed.

Migration Act 1958 (Cth), ss.424A(1), 425, 474, 476

Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230

NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121
Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27] – [32]

Applicant: SZHWW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3918 of 2006

Judgment of: Smith FM

Hearing date: 30 July 2007

Delivered at: Sydney

Delivered on: 30 July 2007

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the First Respondent: Ms S Sirtes

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3918 of 2006

SZHWW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 29 December 2006, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 November 2006 and handed down on 5 December 2006.  The Tribunal affirmed the decision of a delegate made on 12 May 2005, refusing to grant a protection visa to the applicant. 

2. Under s.476 the Court has the “the same original jurisdiction in relation to Migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a protection visa.

3. The applicant lodged his application for a protection visa on 24 December 2004, assisted by a migration agent, Priscilla Yu.  In the application he claimed to have arrived in Australia in November 2004 on a passport showing a different name, which had been issued in the People’s Republic of China in April 2001, and which contained a temporary business visa issued on 1 November 2004. 

4. A typed statutory declaration narrated a history upon which the applicant sought protection against return to China.  The applicant explained that he had “totally lost my confidence with the communist and the communist government” due to experiences in which the local government had “really destroyed my house with a bulldozer” at the time of the birth of his second child.  He claimed that a local official had taken one third of his family’s farm without compensation.  In 1999, he left the farm and went to a village in Hebei Province, where he obtained a job in a furniture factory. 

5. He claimed that he was then converted to Christianity by Mr Z, and was baptised in June 1999 by “Priest L”.  He claimed that between January 2000 and February 2001 Mr Z and another person “began to organise us to spread the gospel to the local people” in that part of Hebei Province.  He himself organised a bible study group in the village, and “on every weekend, I organised my bible study group to study the bible, and to distribute religious propaganda material”.  He claimed that the local PSB often questioned “us or local people in order to investigate our “illegal” religious activity”.  He claimed that when he was at home for the Chinese New Year, he was told that one of the organisers was arrested and the PSB in Hebei were looking for him.  He and Mr Z therefore immediately went to a third province of China, Henan Province. 

6. He claimed that between 2001 and August 2004 he and Mr Z continued activities to spread the gospel among villagers in that province, and:

   We both successfully established three bible study groups and made more than 50 people baptised by Priest L.  In the meantime, we both organised to distribute thousands of religious propaganda materials in that area.

   …

   We got into a lot of trouble during that period, such as being questioned by the policeman or investigated by the local authorities, but we could escape many times with the love of my God and with helps and protect of local people, particularly those religious brothers and sister.

7. He claimed “I eventually had to escape again in August 2004” when Mr Z was arrested.  He went to Guangzhou city and hid there, and from a friend from his old village “bought a visa to Australia”.  He claimed:

   Since I came to Australia, I have been informed by my wife, and other members of my family, that I have been on the “black list” of the PSB, which means that I must be arrested as soon as I back to that country.

8. He showed to the Department a copy of what was said to be an identity card in his true name.  He also presented a document which purported to be a demand by the village committee of his home village to his wife, who had remained in that location throughout all these years, to deliver up items showing the applicant’s illegal religious activities.  This document showed a date in December 2004, after the applicant had come to Australia.  No other corroboration was ever provided to the Department, or on appeal to the Tribunal.

9. A delegate interviewed the applicant before making a decision.  He refused the application because he was not satisfied “that he was capable of proselytising in the manner he has claimed”.  The delegate pointed to problematic aspects of the narrative and to the absence of detail “to lend any verisimilitude to these claims”.  The delegate did not accept as true the claims presented with the visa application.

10. On appeal, a decision was made by the Tribunal on 24 November 2005, which affirmed the delegate’s decision. This was set aside by a consent order in this Court, due to a failure to observe s.424A(1) in respect of some particular information.

11. On remitter, the applicant attended a hearing held by the reconstituted Tribunal on 9 November 2006.  The applicant’s grounds of review in this Court criticise how that hearing was conducted.  In support, he presented a transcript of the hearing which, with some corrections made by a law clerk who reviewed the transcript on behalf of the respondent, I accept as an accurate transcript of what was said in English at the hearing. 

12. The hearing occupied nearly four hours, interrupted by a break.  The Tribunal asked many questions to test the applicant’s religious claims and his history in China.  It set out a lengthy summary of the hearing in its statement of reasons, which is generally accurate.  It is apparent to me that there were many pauses as the hearing progressed, including the interruptions necessary to allow translation, which would have allowed the applicant opportunity to consider how to respond to the questions of the Tribunal.  These were generally brief and straightforward. 

13. The hearing was conducted entirely through a Mandarin interpreter, and at the start of the hearing the applicant indicated that he could understand the interpreter.  At some points it appears to me that some problems in communication may have occurred, but the Tribunal appears to have been aware of these, and compensated by repeating its questions or approaching the topic differently. 

14. I am not satisfied from my reading of the English transcript that there was any problem of translation which generally rendered the hearing an inadequate opportunity for the applicant to present his case to the Tribunal, as required under s.425(1) (See Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30] – [31]). However, the applicant challenges one particular part of the proceedings in relation to the translation, and I shall address this criticism further below.

15. In its statement of reasons, the Tribunal also extracted information from sources about the Shouters Christian sect in China, to which the applicant claimed to belong.  The Tribunal subsequently applied this information when assessing the truth of the applicant’s claim to fear persecution on the ground of his association with that sect. 

16. Under the heading “Findings and Reasons” the Tribunal said:

    The Tribunal is not satisfied with the applicant’s credibility.  The applicant’s knowledge of the “Shouters” was extremely random: some was inconsistent with the independent evidence available to the Tribunal about the “Shouters”.  His evidence on the whole was implausible and far fetched, and the Tribunal finds that the applicant has not been truthful with the Tribunal and cannot be satisfied that he has a well founded fear of persecution for any Convention reason upon return to China.

17. The Tribunal then identified where it thought that the applicant’s knowledge of the Shouters was “random, inconsistent with independent evidence and in some respects very basic”.  This discussion concluded with a reference to the applicant’s evidence about his baptism, in which the Tribunal said:

    The applicant gave evidence that he was baptised by a priest.  Significantly, the independent evidence indicates that “Shouters” have no professional ministry.

18. The other points made by the Tribunal appear to have some cogency, although it is apparent that the applicant did have knowledge about other aspects of the Shouters sect.  The applicant’s responses to questions where the Tribunal tested his knowledge of the bible also showed significant areas of knowledge.  However, the Tribunal formed the conclusion that this knowledge was “extremely random”.  It said:

    For a person who claimed at hearing to be devoted to “God and Jesus” and to have read the bible daily for (at least) six years, his knowledge of significant aspects of the bible - and aspects of the life of Jesus (such as his “sermon on the mount” and the story of his betrayal by Judas) to be wanting.

19. The Tribunal identified some inconsistency in his claimed history, and noted that he had produced “neither witness nor statement from anyone” in Australia to confirm his assertion that he had been attending church in Australia.   This contributed a second area causing it to doubt his credibility.

20. A third area where the Tribunal found the applicant’s credibility to be shown to be doubtful concerned his account of being questioned by Chinese authorities without ever being detained.  The Tribunal thought that this was “so far fetched as to be fanciful”.  It also thought that he had altered his evidence in the course of the hearing, and found:

    the applicant has been completely untruthful about the claims to have been questioned, and the Tribunal cannot be satisfied that the applicant was ever questioned by the authorities.

21. The Tribunal formed a general opinion:

    On the evidence before the Tribunal, it cannot be satisfied that the applicant has ever been involved with the “Shouters” either in China or in Australia. On the evidence before the Tribunal, it cannot be satisfied that the applicant has ever been involved in the “Shouters” or that he is a Christian as claimed. The Tribunal finds that the applicant has fabricated this claim with a view to creating a claim to be a refugee, and therefore has been untruthful to the Tribunal.  The Tribunal finds that claims of harm in China in the past, or claims of fear of harm for reason of religion in the reasonably foreseeable further in China are untruthful and gives these claims no weight.

22. The Tribunal then noted the documents presented as corroboration, and said:

    In light of the applicant’s lack of reliability as a witness, it cannot rely on the documents submitted by him, and gives them no weight.

23. I have carefully considered the reasoning and procedures of the Tribunal, and am not persuaded that its decision is affected by any jurisdictional error.  This is not a case where an applicant claiming a fear of persecution as an underground Christian in China has been found totally devoid of relevant knowledge and experience of Christianity, and it is possible that other interviewers of the applicant might have arrived at different conclusions. However, on the evidence before me I consider that it was open to the Tribunal to have arrived at the adverse findings which I have set out above, and to have disbelieved the applicant’s refugee claims.  It is not the function of this Court to form its own assessment of his credibility.

24. The applicant’s application to the Court has essentially four grounds.  The first ground alleges that the Tribunal member did not consider the applicant’s claims “properly and fairly”.  In effect, it alleges bias, or an apprehension of bias, and I have assessed the material before me against the principles in relation to apprehended bias applied by the High Court in relation to this Tribunal in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27] – [32].

25. The applicant criticised the Tribunal’s hearing on a series of matters.  He complained that the Tribunal did not willingly allow him to provide information.  He complained that he was discouraged from “willingly” giving his evidence because of an apprehension of bias.  He claimed that important evidence was not properly communicated, because the interpreter could not understand the member or did not correctly translate his responses.  He complains generally that the Tribunal’s questioning showed a “nit pick” attitude, and left him with an impression that the Tribunal had a “strong bias”.

26. When pressed for examples of these problems, the applicant said that he was unable to point me to them in the transcript, and he was generally unable to illustrate the general criticisms he made.  There were only two aspects where he made particular criticisms.  One was where he claimed that the translator had mistranslated his description of how he had been baptised, by referring to this being performed by a “priest” rather than an “elder”.  He also criticised the Tribunal’s questioning of him about being questioned by authorities in Hebei.  He complained that the Tribunal appeared to be unfairly picking up some inconsistencies or confusions arising from his memory problems.

27. I have been conscious that the applicant is not legally represented in this proceeding, and have carefully considered the transcript to consider how the hearing was conducted.  In my opinion a “hypothetical fair minded lay person who is properly informed as to the nature of the proceedings” would not form an apprehension that the Tribunal did not bring an impartial mind to considering the applicant’s evidence.  As Re H explains, the Tribunal is required by the Act to hold a hearing if it is not satisfied as to the truth of claims by reading the material on the file.  It then has the function of questioning an applicant to seek to arrive at the truth.  The present Tribunal has taken that duty very seriously, and has conducted a very lengthy hearing.  It is understandable that the applicant might have felt that it was “nit picking”, but in my opinion a lay observer would understand that this was a proper method of testing the truth of the applicant’s claimed commitment to the Shouters sect, and his history.   I consider that the transcript shows the Tribunal approaching this task with an open mind.

28. This is not a case where, on my reading of the transcript, there is any sign that the applicant has been “overborne or intimidated” by its questioning.  There have not been “constant interruptions”, nor unreasonably repeated challenges to truthfulness, nor any sign of an aggressive or unfair questioning style.  I consider that the applicant was given a full opportunity to answer the Tribunal’s questions.  If, as he tells me, he refrained from giving full answers, then I do not accept that this was as a result of any improper questioning or conduct of the hearing by the Tribunal.

29. At the end of the hearing, the Tribunal used some strong language to indicate that it had concerns with his credibility.  The applicant seems, correctly, to have understood that this related to his responses concerning his coming under attention by the Chinese authorities.   He then sought to explain to the Tribunal the problems which apparently he recognised had been in his evidence.  I do not find that this passage at the end of the hearing might give rise to an apprehension that the Tribunal had not sought previously throughout the hearing to keep an open mind as to the applicant’s case. 

30. The strongly expressed adverse conclusions which are found in the Tribunal’s statement of reasons, in my opinion, reveal no more than a Tribunal which ultimately arrived at a firm conclusion adverse to the applicant in the performance of its duty to make findings about credibility.  The reasons themselves, in my opinion, do not provide support for a claim of bias.

31. In relation to the applicant’s criticism of the interpreter’s translation into English of his reference to the person who had baptised him as a “priest”, I am not persuaded, on the evidence, that any mistranslation in fact occurred.  It is notable that on the preceding two pages of the transcript (see pages 19 and 20) the interpreter appears to have correctly interpreted statements by the applicant referring to “elders”.  I am not persuaded that on page 21 the interpreter then misinterpreted the same word as “priest”.  I have noted above that the applicant’s written statement had also used the word “priest”.  The applicant has not presented any expert evidence from a Mandarin interpreter who has listened to the tapes to establish this complaint.

32. The second ground of the application to the Court alleges a failure to comply with s.424A(1) of the Migration Act. However, it is devoid of any particulars of the information which is argued to have given rise to an obligation under that section. I am unable to identify any such information from my reading of the Tribunal’s reasons. The Tribunal has, in my opinion, relied upon information which it has taken from the hearing it conducted with the applicant. Its interpretation of that evidence was not a matter required to be put to the applicant under s.424A(1).

33. Ground three of the application contends a failure to comply with obligations under s.425. It is argued that:

    Due to the reasons mentioned above, the presiding Member has, in fact, failed to provide me a chance to give my oral evidence.

    However, as I have explained above, I am not persuaded that any failure occurred in this case.  In my opinion, the applicant had a full opportunity to respond to the Tribunal’s questioning in a manner which would allow him to endeavour to persuade the Tribunal as to the truth of his claims.

34. The fourth ground in the amended application makes a series of generalised contentions of jurisdictional error.  However, they have been given no substance by any particulars in the application, nor in the applicant’s submissions to me today, and I am not persuaded that any of them is arguable.

35. For the above reasons I am not persuaded that the Tribunal’s decision was affected by jurisdictional error.  It was therefore a privative clause decision and I must dismiss the application. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM.

Associate:  Michael Abood

Date:  10 August 2007