SZHYG v Minister for Immigration - [2006] FMCA 574

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 574

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 is a citizen of China claiming fear of persecution on grounds of religious opinion – credibility.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 474
Federal Magistrates Court Rules 2001

Applicant:

SZHYG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3805 of 2005

Judgment of:

Scarlett FM

Hearing date:

12 April 2006

Date of Last Submission:

12 April 2006

Delivered at:

Sydney

Delivered on:

12 April 2006

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed.
The Applicant is to pay the First respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3805 of 2005

SZHYG

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 handed down on 22^nd November 2005 and affirmed a 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 who arrived in Australia on the 25^th February 2005 and applied for a protection (class XA) Visa on the 8^th April 2005. After that application was refused the applicant sought review of that decision by the Refugee Review Tribunal. The Tribunal invited the applicant to attend a hearing on Friday 28^th October 2005. The applicant attended and gave evidence with the assistance of a Mandarin speaking interpreter. A part of the applicant's case involves his criticism of the ability of the interpreter at the Tribunal hearing.
The applicant seeks a protection visa on the basis of his religious belief. He provided a statutory declaration to accompany his application for a protection visa and the Tribunal showed that document to the applicant. He confirmed that he had signed that declaration and that the document contained true and accurate information. The Tribunal asked the applicant a number of questions about his religious belief and put to him that his knowledge of Christianity was extremely limited. The applicant provided ten photographs of himself and a church which he said were taken during Christmas 2004. He said that the church had become an underground church.
The applicant denied that the photographs were not genuine and told the Tribunal that even though the church in the photographs looked older than six months, he said that the area where it was very dusty and renovations that had been carried out were not of a high standard.
In the Tribunal's findings and reasons the Tribunal was satisfied that the applicant was a citizen of China. The Tribunal at page.85 of the Court Book expressed concerns about the applicant's lack of knowledge about Christianity and formed the view that it was blatantly clear that the applicant knew very little about Christianity.

The Tribunal then gave examples of the applicant's lack of knowledge at page 86 and was satisfied that the applicant did not know many basic details about it.
The Tribunal went on the find that the Tribunal did not accept that the applicant had ever been a Christian and rejected his claim that he was involved in any underground Christian activities. The Tribunal said this at page 86:
The Tribunal is satisfied that the applicant has fabricated his claim to support his application for a protection visa, reflecting adversely on his credibility.
The Tribunal had regard to the photographs provided but was not satisfied that the photographs did more than show that he had attended a church. The Tribunal referred to a report from the United States Department of State called China International Religious Freedom Report 2004 which said that Christianity in China is not unlawful and there are five official religions in China including Catholicism and Protestantism.
The Tribunal was not satisfied that the applicant had suffered any harm as a result of attending church and was not satisfied that there was a real chance of such harm occurring in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant's factory had lost money because of electrical faults and that the PSB have a “black” record about the applicant. The Tribunal was not satisfied, due to the adverse credibility findings, about the applicant's evidence.
As the Tribunal was not satisfied that the applicant had a well-founded fear of persecution from a Convention related reason, the Tribunal affirmed the decision not to grant a protection visa.
The applicant sought judicial review of that decision by means of an application filed on the 22^nd December 2005. He claims two grounds of review.
i)There was an error of law in the Tribunal's decision constituting a jurisdictional error.
ii)There was procedural error in the Tribunal's decision constituting an absence of natural justice.
He sets out particulars in five numbered paragraphs. The first claim is that the interpreter at the Tribunal hearing had a poor ability to interpret particular religious terms which made him confused. He claimed that the interpreter was so incapable of interpreting these terms that he had been denied the right to give oral evidence and denied the right to provide argument against the issues arising from the review.

He claims this to be a breach of s.425 of the Migration Act.
The respondent points out that whilst inadequate interpretation can, in some circumstances, lead the Court to find there was a breach of s.425, there was no evidence before the Court that the standard of interpretation at the Tribunal hearing was such that the applicant was effectively unable to give evidence. I am inclined to agree with that submission. The applicant has just made a bald assertion about the quality of interpretation and has provided no evidence, whether it be from a copy of the transcript of the hearing or any other document.

He said that he does not have much education and since the interpreter did not interpret properly, how could he understand. In my view, such a claim needs to be proved and the applicant has provided no proof. There is no jurisdictional error in respect of the claim for inadequate interpretation.
Ground 2 alleges that the Tribunal failed to assess his religious knowledge properly and fairly or particulars to. There are two subparagraphs; the first of which related to the inadequacy of the interpreter at the Tribunal hearing. I have already dealt with that.
The second claim is this:
The Tribunal failed to seek independent opinions regarding my religious knowledge from a third party such as priests in the local church in Australia where I have attended weekly worship.
There is no obligation on the Tribunal to conduct investigations into the applicant's claims. It is for the applicant to provide evidence to satisfy the Tribunal that he or she meets the criteria to be granted a visa.

The Tribunal pointed out at page 85 that a decision-maker is not required to make the applicant's case for him or her. This to my mind is a correct statement of the law and I am satisfied that the particulars referred to in 2(a) and (b) do not establish any jurisdictional error.
The applicant claimed the Tribunal completely ignored independent country information and refers to a report from the United States State Department on human rights practices in 2004, a report dated 2003 from the same source headed ‘Country Reports on Human Rights Practices’ and a 2004 report from Amnesty International.
The Tribunal did refer to independent information at page 87 of the Court Book, namely a report from the United States Department of State entitled ‘China International Religious Freedom Report 2004’. To my mind, if the applicant wished the Tribunal to consider the independent country information referred to, then it was incumbent on the applicant to provide it for the Tribunal. As the Tribunal has already said, the decision maker is not required to make the applicant's case for him. Particulars three provides no jurisdictional error.
In paragraph 4 the applicant sets out four reasons why he claims that the Tribunal has erred. Reason (a) is a failure to properly determine his case, including whether the harm feared amounted to persecution and whether that fear was well-founded. I asked the applicant about that and he was unable to explain any further apart from the fact that the Tribunal did not reach a correct conclusion. To my mind, this is no more than an attempt at merits review which is outside the jurisdiction of the Court.
At 4(b) the applicant said that the Tribunal asked itself a number of wrong and irrelevant questions. I asked the applicant what they were and he referred to events that had happened to the church and a fire at the warehouse of the company where he worked. That does not disclose any jurisdictional error.
I asked the applicant about his third claim in 4(c) that the Tribunal failed to identify and consider the relevant issues to be determined and he provided no further information to support that claim.
4(d) is that the Tribunal incorrectly assessed his credibility. As the applicant said; the Tribunal did not believe him. Credibility is an area that is solely within the province of the administrative decision maker. Credibility is a finding of fact. Provided there is evidence upon which such a finding could be made, and in this case there is, the Court will not intervene as there will be no grounds for doing so.
The entire case is about the applicant's credibility and the Tribunal, at pages 85 through to 87, sets out reasons why the Tribunal was not satisfied about the credibility of the applicant's case. There is no jurisdictional error shown.
The fifth particular is a statement that the applicant never ever believed that his application was assessed by the Tribunal fairly and caringly. The applicant may have that belief but he has shown no jurisdictional error. He brought to Court a handwritten document which he had difficulty reading and the interpreter was asked to read from that document. The interpreter had some criticisms of the manner in which the document was written but did, what appeared to me, to be her best to interpret it.
The applicant in that document referred again to the matters raised in his application and also claimed a breach of s.424A (1) of the Migration Act. He was unable to provide any particulars for that breach. I have looked at the evidence myself and I asked the solicitor for the respondent, Ms Quinn, about the statement at page 83 of the Court Book that the Tribunal had shown the applicant his statutory declaration provided in support of the application for a Protection Visa. As Ms Quinn pointed out and I believed correctly; the Tribunal did not, in affirming the decision of the delegate, use the information in the statutory declaration as a reason or part of the reason for affirming the delegate's decision nor did the Tribunal refer to any inconsistencies between that information and the evidence at the hearing.
It is quite clear that this entire decision rests on the Tribunal's adverse finding about the credibility of the applicant. That, to my mind, is the principal reason, if not the only reason, that the Tribunal affirmed the delegate's decision. The Tribunal did not accept the applicant's claims of being a follower of a Christian faith and formed that view from questions asked of the applicant about his religious faith. It was the adverse finding on credibility that meant that the Tribunal was not satisfied that the applicant had established that he had a well-founded fear of persecution and of course it is not necessary for the Tribunal to have a positive state of disbelief. Because of the applicant's poor credibility, the Tribunal was not satisfied that the applicant had made out his case and affirmed the decision.
My reading of the Tribunal's decision; mindful as I am that the applicant is not legally represented and as he says, he is a person of limited education, does not show any other jurisdictional error not referred to. There is no jurisdictional error. The decision is a privative clause decision. It has the protection of s.474 of the Migration Act. The application will be dismissed.
There is an application for costs. The applicant has been wholly unsuccessful in his claim and in my view costs follow the event.

The amount sought is $2,500.00 which to my mind is well within the scale of costs anticipated in the Federal Magistrates Court Rules.

The applicant has provided no reason why he should not face an order for costs except that he has announced his intention to appeal which is of course his right.

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: 20 April 2006