SZIJY v Minister for Immigration - [2007] FMCA 1823

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIJY v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1823

MIGRATION – Review of decision of RRT – where application form not translated – where applicant abjures the document – where new story provided to Tribunal – sufficiency of s.424A letter – recommendations to Department.

Migration Act 1958, s.424A

Applicant:

SZIJY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:	REFUGEE REVIEW TRIBUNAL
File number:	SYG546 of 2006

Judgment of:

Raphael FM

Hearing date:

17 October 2007

Date of last submission:

17 October 2007

Delivered at:

Sydney

Delivered on:

17 October 2007

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondent:

Mr S Free

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the first respondent's costs assessed in the sum of $4,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 546 of 2006

SZIJY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of the People's Republic of China. She arrived in Australia on 3 February 2005 holding a business visa for temporary entry. On 1 March 2005 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 27 June 2005 a delegate of the Minister refused to grant a protection visa and on 29 July 2005 the applicant applied for a review of that decision.
The applicant attended a hearing before the Refugee Review Tribunal at which she was represented by a migration agent. Submissions were made to the Tribunal on the applicant's behalf by the migration agent. A very detailed s.424A letter was written by the Tribunal to the applicant [CB 103] and the responses provided were taken into consideration by the Tribunal which, on 30 December 2005, determined to affirm the decision not to grant the protection visa and handed that decision down on 19 January 2006.
The applicant completed a form C applying for a protection visa. The copy that is in the court book has two parts: Part B and Part C. Part B commences at [CB 16]. The applicant's name and date of birth are completed in typescript in Part B. Some details of her family membership are completed in handwriting at [CB 19] and continuing on [CB 20]. There is a typescript response to the “documents provided with this application”, question 12 at [CB 20] and a similar typescript response to “details of documents she will later provide” at question 13, [CB 23]. There appears a holograph signature in the Mandarin script at [CB 24].
At [CB 25] there is an interpreter's declaration. This is not the first time that I have commented about the failure of these declarations to be completed when it is quite obvious that the person who is making an application for a protection visa speaks little or no English, writes in a language that does not contain the same script as the English language or any other European language and who then, as this applicant did, provides a detailed and lengthy statement in English about her claims to be a refugee.
Interestingly, in this case form C, partially completed in typescript and partially in holograph form, including details of the applicant's past employment, contains a declaration by the applicant signed by a person who alleges he is a solicitor. In this case the applicant gave an address where she allegedly lived. She also signed a form 956 authorising a person named Mary Chen to receive information for her. The alleged Mary Chen also signed the document, but did not complete the interpreter section.
Whilst the existence of a safety net in the guise of the Refugee Review Tribunal exists, it seems to me that much anguish and considerable time and treasure could be saved if the Department looked carefully at these forms and, where they suspected that they were being completed by people who did not understand them and where no interpreter's certificate was completed, send the forms back and refuse to accept them until they were properly interpreted and there could be no doubt that the applicant knew exactly what she was signing and exactly who was representing her.
In this case the applicant's claims to be a refugee commence at [CB 41] and end at [CB 44]. They are, as I have said, in the English language. There is then a statement in Mandarin which, regrettably, I am unable to read. I will make no assumptions as to what it says.
The story given in the statement by the applicant relates to a sympathetic view of the condition of the peoples of Taiwan. That story has now been completely resiled from and wisely the Tribunal, when it came to consider the applicant's case, ignored it. What occurred was that at some time after the original application had been made the applicant found a new migration agent. She tells that this migration agent made some inquiries about what had occurred to her application for a protection visa and was provided with a copy of the determination of the delegate.
On behalf of the applicant an application to the Tribunal was made by the new agent and this included the statutory declaration commencing at [CB 96]. The new statutory declaration gave an entirely different story which involved the applicant's resistance to her being made redundant by the bicycle factory at which she worked and her leading protests against the failure by the factory to pay her what appears to be some form of "on-call" allowance. It was that claim to which the applicant spoke at the Tribunal hearing.
The persecution allegedly suffered by the applicant arose out of her arrest following her taking part in protests against the actions of the tyre factory and her denunciation as spreading anti-Government ideologies and destroying the Communist reputation. The applicant claimed that in January 2005 she had heard from a friend whose husband had worked in the workers union that the authorities planned to punish her and the friend suggested that she leave the country and provided her with assistance. The assistance appears to have been in connection with the completion of the application for a temporary business visa.
The story that the applicant put forward concerning her fear of persecution and her activities in relation to the bicycle factory were tested by the Tribunal during the course of the hearing and it is clear from the text of the Tribunal's reasons that it found the applicant's story to be unconvincing. In particular the Tribunal was concerned at the inconsistency between her employment details contained in the business visa application and those now asserted to the Tribunal.
The applicant claimed the dissimilarities between the business application and the initial protection visa application had come about because of something she had been told by her original migration agent:
“When the Tribunal put to the applicant that the fact that she had provided false information to the Department may lead the Tribunal to conclude she was not a truthful witness the applicant then provided yet another story as to how the details in her initial application to the Department were completed. She stated that her first agent told her that she should provide the Department with the same information she had provided to the Australian Embassy. The Tribunal finds the fact the applicant changed her story as to how the details in her initial application to the Department were completed when adverse information was put to her indicates that the applicant is not a witness of truth.”
The Tribunal also made a finding about the manner in which the applicant gave her oral evidence. In particular it noted that she appeared to have learnt the exact words and phrases in her statutory declaration verbatim. It noted that the applicant was unable to provide responses for questions that were outside the scope of that document, such as the address of the factory at which she was alleged to have worked for 15 years. This gave the Tribunal cause for a view that her evidence was not credible. The Tribunal had a similar reaction to the evidence given by the applicant concerning her detention.
After the hearing completed the Tribunal wrote the s.424A letter to which I have previously referred. The letter goes through a series of instances of evidence that might have caused the Tribunal to infer the claims made by the applicant were not true. Each individual matter of concern is set out and in respect of each the relevance of it is expressed. I am of the view that so far as s.424A letters are concerned this one is exemplary.
The Tribunal then took into consideration the response made by the applicant to that letter in the statutory declaration which commences at [CB 108] and concludes at [CB 110]. The responses did not do anything to assist the Tribunal to be satisfied that the applicant is a person who falls within the Convention definition of a refugee:
“Overall the Tribunal does not accept that the applicant has provided a truthful account to the Tribunal as to why she left China. The Tribunal is of the view that the applicant has been prepared to provide any evidence she thinks will assist her in obtaining the visa she wants. The Tribunal does not accept that the applicant was employed at the Tiang Xian number 2 bicycle tyre factory. The Tribunal does not accept that she was retrenched from the factory. The Tribunal does not accept that the applicant participated in any protests or that she was detained for participating in any protests. The Tribunal does not accept that the PRC authorities planned to punish her or that the PSB came to her home with a warrant after her departure. The Tribunal does not accept that the applicant is of any adverse interest to the Chinese authorities for the reasons she has claimed.”
The applicant obtained the assistance of someone who clearly has some familiarity with proceedings of this sort and on 27 April 2006 filed an amended application. In that application she claimed that the Tribunal failed to assess her claims properly and fairly. She attacks the findings of the Tribunal in relation to her credibility and she commences by quoting from the UNHCR handbook concerning the vulnerability of persons like herself seeking asylum. She states that the Tribunal did not take this vulnerability into account; but that seems to me to be inconsistent with the second paragraph of the Tribunal's findings and reasons at [CB 130]. The Tribunal clearly states:
“When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.”
Whilst this is an extract from a boiler plate paragraph, the fact that the paragraph is boiler plate does not mean, and should not be taken to mean, that it is not a principle under which the Tribunal acts. Nothing contained in the decision and nothing that the applicant has said to me would satisfy me that the Tribunal acted otherwise than strictly in accordance with the principles set out in that paragraph.
The applicant then goes on in sub-clause (f) of her amended application to make some comments about the initial application and the fact that it had been completed by someone unauthorised by her. The remarks made by the applicant in this connection would have been far more relevant if the Tribunal had utilised the discrepancy between the original application and what was being put by the applicant before it as a ground for disbelieving her. But as I have said, the Tribunal wisely avoided this.
I do not know whether the applicant is being truthful in relation to her claims in relation to the completion of these forms. What I do know is that there would have been no need for any argument about it if the form had been properly completed and interpreted to the applicant as clearly was intended.
The applicant proceeds in her amended application to reassert facts which the Tribunal has found against her. This is effectively seeking impermissible merits review and does not constitute an attack on the Tribunal's decision for falling into jurisdictional error. Similarly she attacks the Tribunal's findings about the manner in which she gave her evidence. Any views about this aspect of the hearing are views which only the Tribunal can put. It is the Tribunal's duty to make up its mind as to the credibility of a claim made by an applicant and the applicant's demeanour and manner of giving evidence are still entitled to be given some consideration when the Tribunal assesses whether or not it has reached the appropriate state of satisfaction.
In paragraph 2 of the amended application there is an allegation that the Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (the “Act”). She states:
“The Tribunal has considered some pieces of independent country information to assess my claims, such as the information regarding to the passport; and so on …
However, I have found that the presiding Member; -
- failed to give to me, in the way that the Tribunal considers appropriate in the circumstances, particulars of the pieces of information in relation to the abovementioned letter or issues arising from the letter.”
If the applicant is referring to the letter under s.424A then she is clearly wrong because all the pieces of information were provided, so was an explanation of why it was relevant to the review; and so was an invitation to comment upon the matters. If the letter is some other letter then we are not told what it is and cannot effectively comment.
Finally, there is an allegation that the Tribunal failed to comply with its obligations under s425 because it failed to provide the applicant with a fair chance to provide oral evidence:
“My oral evidences having been cut and interrupted by the presiding member.”
This allegation has not been further particularised and no transcript has been produced. In the absence of any evidence I am unable to assist the applicant by making a finding of jurisdictional error in this regard.
Before me today the applicant repeated that she felt that the Tribunal had not dealt with her case fairly. She went on at some length about the first migration agent and then stated that she was unable to have answered the Tribunal's questions correctly because of her emotional state at the time. Once again no evidence has been produced that would satisfy the court that the Tribunal hearing failed as a proper hearing for this reason.
The applicant also suggested that the Tribunal was biased because of the difference in the documents and as a result did not assess her application fairly. This seems to me to be a misunderstanding. The Tribunal may have come to a view that the differences in the documents caused it to doubt her credibility but that is not evidence of bias and no other particulars have been provided.
In all the circumstances I am unable to see where the Tribunal may have fallen into jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application. I order that the applicant pay the first respondent’s costs assessed in the sum of $4,750.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: