SZIIW v Minister for Immigration
[2006] FMCA 1875
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIIW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1875 |
| MIGRATION – Review of Refugee Review Tribunal decision – no reviewable error – application dismissed. |
| Migration Act 1958, ss.424A(1), 425 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors 185 (1996) CLR 259 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 SZEMS v MIMIA [2006] FCA 359 VSAJ v MIMIA [2006] FCA 162 SYYB v MIMIA [2006] FCA 24 |
| Applicant: | SZIIW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 473 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 8 December 2006 |
| Date of Last Submission: | 8 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Mr A. McInerney |
| Solicitor for the Respondents: | Ms K Hooper of DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $10,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 0473 of 2006
| SZIIW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 14 February 2006 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 30 May 2006.
The applicant was born on 13 January 1971 and is from Fuqing in the People’s Republic of China (“PRC”), of Chinese Han ethnicity and of Catholic faith (“the Applicant”).
The applicant is married with two children. She was baptised when she was a child as her mother was a member of the Roman Catholic underground church in China. The applicant claims she could not attend high school as her family was poor and she had to assist in working on the farm. While her children were young the applicant cared for them at home, before finding work as an assistant pastry cook. The applicant’s husband and children remain in China.
The applicant arrived in Australia on 21 July 2005 on a visitor’s visa, which had been issued in Guangzhou on 29 June 2005.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 19 August 2005. In this application she claimed that she had suffered persecution as a result of her religious beliefs. The applicant claimed that while having a meeting one night, her group was arrested and detained by the Public Security Bureau (“PSB”). They were forced to confess their illegal activities, were interrogated and detained for two weeks. On another occasion the applicant claims to have been chased by the police while approaching a meeting-place, and those that did not successfully flee were detained by the PSB. The applicant believes that from that time she was a target of the PSB due to her activities. The applicant claimed she had to purchase a passport in a different name to depart from China (Court Book (“CB”) 26-27).
This application was refused by a delegate of the first respondent on
30 August 2005.
On 26 September 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on
7 December 2005, at which time she maintained the claims made in her original protection visa application.
On 12 January 2006 the Tribunal handed down its decision, dated
20 December 2005, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found:
“In considering the claims the Tribunal has taken note of the views expressed by the High Court in the context of refugee decision-making. The High Court has emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 that the legislation to be applied requires that the Minister must be ‘satisfied’ that a person is a refugee. As Kirby J noted in the latter case (at 596):
‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’
This is not read as placing any onus of proof on an applicant, but does require that a decision-maker examine the material available to reach the required level of satisfaction (CB 160).
Having considered the available material the Tribunal did not believe that the applicant provided a truthful account of her experiences or beliefs prior to her departure from China. In particular, the Tribunal did not believe the applicant ever had any involvement with the Catholic faith while in China, nor that such involvement caused her to leave that country (CB 160).
In it’s findings the Tribunal continued:
During the course of the hearing the applicant was only able to provide the most minimal explanation of the Catholic faith. She was unable to explain the position of the Pope within the belief system of the church and appeared unaware that the Pope lived in the Vatican or had a role as leader of the Catholic Church for followers around the world (CB 160)
The applicant was unable to explain why the faith was referred to as Roman Catholic, despite her explaining that it was the Roman belief that differentiated her faith from the practices in the registered Church.
The applicant did give some description of a baptism and could describe a Mass, but in the Tribunal’s view her description of those activities was only consistent with having observed such services for a short time. She could not give any real account of the role or functions of a priest within the church other than to suggest they were responsible for liaison with the congregation (CB 161).
The applicant claimed a loss of memory resulting from claimed torture in China affecting her knowledge of the Catholic faith. The Tribunal did not believe that this was a truthful explanation for the applicant’s lack of knowledge. The Tribunal continued:
Her claimed loss of memory was also not referred to in any material prior to the hearing, while towards the conclusion of the hearing she effectively claimed that she had been unaware of her past experiences when consulting her agent, only being told about them after she had contacted a friend in China. This explanation for how the applicant became aware of the nature of her claims is simply not believable. In the Tribunal’s view, the applicant’s claims of memory loss were simply invented to try to explain the clear lack of knowledge she exhibited about a faith she has claimed to have practiced regularly since the age of 10 years (CB 161).
The Tribunal noted that the applicant claimed she could recall things about the church from the time of her travel to Australia and that she had started to learn things again at this time. In the Tribunal’s view, this indicates that in fact her only involvement with the Catholic church arose after the applicant travelled to Australia (CB 162).
The Tribunal did not accept the applicant’s claims that the PSB was interested in members of her family who remain in China were genuine. Not being satisfied that there has ever been any interest by authorities in the applicant in the past, the Tribunal does not believe that there is currently any interest in members of her family in China. Her claims in this regard were considered contradictory. In particular the Tribunal noted that the applicant claimed her children had first abandoned their schooling, then returned to school, but were too scared to perform well (CB 162). The Tribunal continued:
In the Tribunal’s view, the evidence in this matter supports a conclusion that the applicant on travelling to Australia became aware that claimed following of the Catholic faith in China could lead to a favourable outcome in an application such as this and she had provided untruthful information about her past in an attempt to portray herself as such a person. The level of knowledge she exhibited and the detail she could provide about Catholic practice was consistent with a person who had attended services in Australia within a faith to which they had no earlier exposure (CB 162).
The Tribunal accepted “that the applicant has attended some Mass and bible study sessions … since her arrival in Australia, however, does not believe this is a genuine expression of her faith. Were this a genuine expression of the applicant’s religious beliefs attained since arriving in Australia, the Tribunal does not believe she would have fabricated a past history of involvement in the Catholic faith. While Father McGee’s assessment that the applicant appears comfortable in the church is a truthful expression of his belief, in the Tribunal’s view the evidence of the applicant does not support her claimed past role or experiences of the church in China. Father McGee had been made aware of the applicant’s claimed involvement with the Catholic faith in China and apparently believed the claims to be true. This belief arose from what he had been told, however, the Tribunal does not share his view of the applicant’s role or activities in China. He had also had limited opportunities to discuss her past activities with the applicant” (CB 162).
It was the Tribunal’s view that, “while the applicant has attended a Catholic church in Australia she does not follow the Catholic faith, has not done so in the past and will not do so in the future. In the Tribunal’s view, the applicant’s sole motivation in attending the church at Flemington has been to support this application. As the Tribunal is not satisfied that the applicant’s conduct in attending a Catholic church in Australia was otherwise than for the purpose of strengthening her claim to be a refugee, I must disregard that conduct in determining whether she has a well-founded fear of being persecuted: see s.91R(3) of the Act. The Tribunal did not accept that the applicant will follow the Catholic faith if she returns to China because she has not done so in the past and her involvement here is not based on any genuine belief” (CB 163).
The Tribunal concluded that, “while there is some evidence of harm befalling those of the Catholic faith in China, the Tribunal did not believe the applicant is a person of this faith. The Tribunal did not believe any harm would come to the applicant now or in the reasonably foreseeable future in China as a result of her claimed faith. While the applicant has attended some Masses in Sydney, there is no evidence that any such attendance has come to the attention of the Chinese authorities or that where it was not a result of an expression of her faith that this would cause any difficulty on return. If the applicant genuinely held a fear of some harm for a Convention reason on return, one would have expected her to present a truthful account of her experiences in China” (CB 163).
Ultimately, the Tribunal was “not satisfied that the applicant is a refugee within the meaning of Article 1A of the Refugees Convention. As a result she is not a person owed protection obligations, which is prescribed as a criterion for the visa sought at subsection 36(2) of the Act. She must, therefore, be refused the grant of the visa sought under section 65 of the Act. The delegate’s decision to this effect should be affirmed” (CB 163).
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In her application, the applicant set out three grounds as follows:
1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error.
2. There was a procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1. The Tribunal misunderstood my claim and made a mistake in relation to an important finding of fact.
a)Firstly, I am from a particular area where my mother language is Fuqingnese – special dialect in Fuqing area of Fujian Province, People’s Republic of China (“PRC”); and it is much more different from Mandarin or Cantonese which are two of Chinese languages are available for our applicants to use for communication with the Tribunal through assistance of the interpreter. On many occasions during the Tribunal’s hearing, I was unable to understand what the interpreter said to me, because the interpreter spoke Mandarin but I could not understand Mandarin. I mainly speak Fuqingese, but no Fuqingese/English interpreter was available with the Tribunal.
b)Secondly, it is a fact that I have been subjected to miserable torture while I was detained by the Public Security Bureau, respectively, in May and December 2004. Particularly, my head was many times beaten by the police with police sticks during the interrogations. I have never completely recovered since then, and I am always subject to loss of memory or feel strongly confused if I am facing huge mental or psychological pressure. During the Tribunal’s hearing, I was indeed subjected to huge mental and psychological pressure. Particularly, while I realised that it was obviously that the Tribunal was “testing” my religious knowledge, I was too nervous to remember anything, even the most basic knowledge, and at that time, my brain was completely empty, indeed.
c)Thirdly, according to UNHCR Handbook, it should be emphasized that: -
“198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-a-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.
199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.”
The Tribunal cannot deny that I am the person who, because of my sufferings in the past, is in fear of the PRC authorities definitely feel apprehensive vis-à-vis the Tribunal in Australia.
d)Fourthly, it is obviously that Father Paul McGee would never provide any evidences for me in support of my application if I were not a genuine Catholic without any basic religious knowledge.
e)Finally, based on the evidences mentioned above, I have to say that I was unable to explain the most basic knowledge during the Tribunal’s hearing solely because of my poor understanding of the interpreter who did not speak my own mother language and my sufferings in the past which has made me suffered to serious injury of my head.
2. The Tribunal failed to comply with s.424A (1) of the Act.
(a)It is apparently that the Tribunal’s decision is mainly relied on the “information” – my poor understanding of basic religious knowledge.
(b) Guided by the Act I have found that:
Section 424A. Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;
(c) invite the applicant to comment on it.
(c)However, before the Tribunal reached its decision, the Tribunal:
· Failed to give me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the pieces of information in relation to the above-mentioned letter or issues arising from the letter;
· Failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review; and
· Failed to invite me to comment on it.
(d)It is apparently that the Tribunal failed to comply with its obligations under s.424A (1) of the Act, while the Tribunal consider those pieces of information as main reasons for affirming the decision that is under review.
3. In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
Amended application
In her amended application filed on 30 May 2006, the applicant set out the following grounds and particulars:
Ground 1
Ground 1 and the particulars set out under it are the same as those in ground 1 of the original application.
Ground 2
Ground 2(a) is the same ground and particular as 2(a) of the original application.
Ground 2(b) is the same ground and particular as 2(b) of the application, with the words added at the end “as well as some issues arising from the Tribunal hearing”.
Ground 2(c) alleges a breach of s.424A
Ground 2(d) is the same ground and particular as 2(a) of the original application.
Ground 3
The applicant claimed the following:
The Tribunal failed to comply with its obligations under s.425(1) of the Act.
a.Guided by the Act, I have found that:
Section 4245. Tribunal must invite applicant to appear
425. (1). The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
b. For the reason mentioned in above Paragraph 1, I was unable to give evidence in support of my application during the Tribunal’s hearing; and I could not present arguments arising in relation to that decision under review.
The applicant concluded by stating that she did not believe that the Tribunal ever assessed her application fairly or carefully.
Findings as to Particular 1(a) of the Application
The applicant alleges that as she had a Mandarin interpreter at the hearing before the Tribunal, and not a Fuqingese interpreter, she was unable to understand what was said to her.
The Court notes that in the applicant’s response to the invitation to attend the hearing (CB 64) the applicant stated that she wanted a Mandarin interpreter (CB 66). The applicant was provided with a Mandarin interpreter (Amended Application page 2, particular 1(a)).
On 24 August 2006 the Court ordered the applicant to file and serve an affidavit identifying from the transcript of the Tribunal hearing any alleged misunderstanding by the applicant arising from the use of a Mandarin interpreter at the Tribunal hearing.
The applicant filed a submission on 7 November 2006 identifying five instances of misunderstanding. The applicant was assisted before the Court by a Fuqingese interpreter. The Court took the applicant to each of these instances. After having questioned the applicant and, after having read the transcript of the hearing by the Tribunal, the Court is satisfied that the applicant had a reasonable understanding of what was put to her and responded accordingly. The Court is satisfied that when the applicant raised with the Tribunal doubts about her ability to understand, the Tribunal rephrased questions to ensure that she did understand.
Section 425(1) of the Act provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
That section involves giving the applicant a “real and meaningful invitation to attend the hearing”; see SZEMS v MIMIA [2006] FCA 359 at [20]-[22]; VSAJ v MIMIA [2006] FCA 162 at [17]-[20]; SYYB v MIMIA [2006] FCA 24 at [9]-[12].
Section 425 envisages giving the applicant a reasonable opportunity to present her case. The Court is satisfied that the applicant was given a real and meaningful invitation to attend the hearing and that the applicant had a reasonable opportunity to present her case.
The Court finds that s.425 was complied with and that there was no error of law made by the Tribunal in this regard.
The Court finds that providing a Mandarin interpreter for the hearing by the Tribunal did not involve a denial of natural justice as it was procedurally fair.
The Court therefore dismisses this ground.
As to instance 3 in the applicant’s submission that the applicant was “very scared” before the Tribunal, the applicant told the Court that she was scared to be before a Tribunal and she was scared because she had a Mandarin interpreter. The Court finds no denial of natural justice in this regard.
Point 2 of the Applicant’s written submissions alleges a failure to comply with s.425(1) of the Act. The Court has found that there was no such failure and that allegation is rejected.
Findings as to Particular 1(b) of the Application
This ground alleges that the Applicant’s memory had been affected by torture and that she felt under stress before the Tribunal.
This ground does not raise any breach of the law and the Court finds that the applicant was given a reasonable opportunity to present her case and that there was no denial of natural justice.
Findings as to Particular 1(c) of the Application
This ground alleges that the Tribunal did not comply with obligations set out in the UNHCR Handbook that if a first interview does not suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview.
The Court finds that the first interview did bring the applicant’s story to light. The Court finds that the Act was complied with in the way that the applicant was invited to attend the interview with the assistance of a Mandarin interpreter and was given a reasonable opportunity to put her case.
The Court finds no breach of natural justice or law involved.
Findings as to Particular 1(d) of the Application
The applicant alleges that Father Paul McGee would not have given evidence in support of her if she was not a genuine Catholic. This seeks to challenge findings of fact by the Tribunal:
· That it did not believe that the applicant ever had any involvement with the Catholic faith while in China.
· That the applicant was unable to explain the position of the Pope.
· That the applicant was unable to explain why the faith was referred to as Roman Catholic.
· That the Tribunal does not believe the applicant is a person of this Catholic faith.
· That the applicant could not give any real account of the role or function of a priest within the Church.
· That Father McGee had been made aware of the applicant’s claimed involvement with the Catholic faith in China and apparently believed the claims to be true. This arose from what he had been told. However, the Tribunal does not share his view of the applicant’s role or activities in China.
All those findings were properly open to the Tribunal on the evidence before it.
There was no error of law or denial of natural justice.
Findings as to Particular 1(e) of the Application
This ground repeats the claim that the applicant could not present her case to the Tribunal through a Mandarin interpreter. The Court has found that the applicant had a reasonable opportunity to present her case and that there was no denial of natural justice.
The Court rejects this ground.
Findings as to Particular 2(a) of the Application
This particular alleges a breach of s.424A of the Act “because the Tribunal relied on the information – my poor understanding of the basic religious knowledge”.
Section 424A(1) is set our in Particular 2(b) of the application. It is clear from reading the decision of the Tribunal that its decision is based on not believing much of the evidence of the Applicant, and of findings of fact against the Applicant. The Tribunal did not rely on any information that was covered by s.424A, and the Tribunal did not breach that section.
Findings as to Particular 2(b) of the Application
This ground alleges a breach of s.424A of the Act and the Court rejects it.
Findings as to Particular 2(c) of the Application
This ground alleges a breach of s.424A of the Act and the Court rejects it.
Findings as to Particular 2(d) of the Application
This ground alleges a breach of s.424A of the Act and the Court rejects it.
Findings as to Particular 3 of the Application
This ground is a general allegation that the Tribunal did not assess the Applicant’s case fairly and carefully. The Court finds that there was no denial of natural justice. The Court finds that the Applicant was treated fairly. A reading of the transcript of the proceedings before the Tribunal and of its decision of 19 pages shows that the Applicant’s claims were considered carefully.
The Court rejects this ground.
The Amended Application
Particular 1(a) of the amended application is the same as Particular 1(a) of the application and is rejected by the Court for the same reasons given for rejecting the claim at first instance.
Particular 1(b) of the amended application is the same as Particular 1(b) of the application and is rejected by the Court for the same reason given for rejecting that claim at first instance.
Particular 1(c) of the amended application is the same as Particular 1(c) of the application and is rejected by the Court for the same reasons.
Particular 1(d) of the amended application is the same as Particular 1(d) of the application and is rejected by the Court for the same reason for rejecting the claim at first instance.
Particular 1(e) of the amended application is the same as Particular 1(e) of the application and is rejected by the Court for the same reason for rejecting the claim at first instance.
Particular 2(a) of the amended application is the same as Particular 2(a) of the application and is rejected by the Court for the same reason for rejecting the claim at first instance.
The applicant added “as well as some issues arising from the Tribunal’s hearing”. Nothing has been provided in support of this particular and the Court finds it of no substance and rejects it.
Particular 2(b) of the amended application is the same as Particular 2(b) of the application and is rejected by the Court for the same reason for rejecting that claim at first instance.
Particular 2(c) of the amended application alleges a breach of s.424A of the Act. For reasons already expressed the Court finds that there was no breach of s.424A. The Court rejects this allegation.
Particular 2(d) of the amended application is the same as Particular 2(d) of the application and is rejected by the Court for the same reason for rejecting that claim at first instance.
Particular 3 of the amended application alleges a breach of s.425 of the Act. For reasons already expressed the Court finds that there was no breach of s.425 of the Act.
The Court finds that there was no breach of law by the Tribunal or denial of natural justice.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 22 December 2006
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