SZIUC v Minister for Immigration
[2008] FMCA 25
•22 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIUC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 25 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIUC”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425, 427 |
| Perara v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 SZHLM v Minister for Immigration & Multicultural Affairs [2007] FCA 1100 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 |
| Applicant: | SZIUC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1264 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondents: | Mr G Johnson of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 3 May 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1264 of 2006
| SZIUC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a 32 year old citizen of The People’s Republic of China who was born in Fuqing City, Fujian Province. In a statutory declaration attached to her protection visa application, the applicant claims that following her divorce in 2003, she began to participate in religious gatherings organised by an unregistered Christian church. In September 2004 while at a religious gathering, the applicant was arrested and taken to the local police station where she was denounced, interrogated, and detained for a week.
Following her arrest and detention, the applicant was forced to attend an official church which she did for about 3 months. From January 2005, the applicant was investigated by authorities about why she no longer attended the official church and warned not to be involved in illegal religious activities.
In February 2005, the applicant resumed her participation in the unregistered Christian church. She claims she assisted in re‑establishing that church, recruiting new members and organising secret meetings. She states that the authorities suspected she was again involved in illegal gatherings and interrogated her many times.
In September 2005, the authorities raided a religious gathering. Many attendees were arrested, however, the applicant escaped and hid in a relative’s home before fleeing overseas with the help of friends and a false passport. The applicant claims that the authorities have been looking for her, and that her parents were questioned many times by the police.
The applicant seeks protection in Australia because she fears that if she returns to China she will be persecuted for her religious beliefs and practices as a Christian implicated in unofficial religious activities.
The applicant arrived in Australia on 24 September 2005 on a passport using a different name, and applied for a Protection (Class XA) visa on 7 November 2005 in her real name. A delegate of the first respondent refused to grant the visa on 22 November 2005 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.
The applicant appeared before the Tribunal on 23 February 2006. After the hearing, the Tribunal sent a letter dated 1 March 2006 to the applicant’s authorised recipient pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”), inviting the applicant to comment on information that would be the reason, or a part of the reason, for affirming the decision under review. The applicant responded on 15 March 2006 with the assistance of her migration agent. On 6 April 2006 the Tribunal handed down its decision affirming the decision not to grant the applicant a protection visa.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
With leave of the Court, the applicant filed an amended application on 14 August 2006. It contains five grounds of review supported by 14 separate particulars.
Consideration
On the first Court date, the applicant indicated that she wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. She was allocated a panel adviser, who although unable to contact the applicant, prepared advice prepared from the Court Book and mailed it to the applicant. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 15 August 2006. This was complied with prior to the scheduled date.
The final hearing was originally scheduled for 16 May 2007. However, the applicant wrote to the Court Registry on 8 May 2007 indicating that she was pregnant and due to give birth on 5 August 2007. She also stated that there were serious complications with the pregnancy. This was supported by a medical certificate from the Auburn District Hospital’s Antenatal Clinic.
The applicant appeared at the re-scheduled hearing on 4 December 2007 as a self-represented litigant assisted by a Mandarin interpreter. She confirmed that she had not prepared any written submissions in support of her application.
Ground one
Mr. Andrew Jacovides, the Presiding Member of the Tribunal (“the Presiding Member”) failed to assess my claims, fairly and properly.
Particulars
(a) the decision of the Presiding Member is mainly based on those issues arising from the Tribunal hearing. However, the key problem was that I did indeed have great difficulties communicating with interpreter at the hearing.
(b) It is the fact that: -
· I was born and grew up in a farmer’s family in the country side of Fujian Province, where Fuqingnese is the main language but not Mandarin. Therefore, while I was in China, I normally had religious practice in Fuqingnese, including worship or Bible studies, in the underground church. In other words, I am able to explain relevant issues regarding to the Bible in Fuqingnese, and I am able to demonstrate my religious knowledge in Fuqingnese. Unfortunately, I was questioned in Mandarin but not Fuqingnese during the Tribunal’s hearing; which, indeed made it very difficult for me to do so.
(c) It is also the fact that:-
· Moreover, the interpreter (Mandarin/English) during the Tribunal’s hearing has demonstrated his very poor religious knowledge; and the interpreter was unable to translate the Tribunal’s questions, clearly and properly; and particularly, the interpreter was unable to correctly and accurately interpret typical religious terms. I have to say that poor performance of the interpreter was one of major reasons why I could not be well understood by the Tribunal; and could not demonstrate my genuine level of my religious knowledge.
(d) It is definitely unfair if the Presiding Member made a finding, without seeking any professional opinions, that “…the applicant’s communication difficulties resulted from her lack of knowledge rather than her inability to communicate with the interpreter..”
(e) I have to emphasize that:-
· Being unable to well understand Mandarin and the poor ability of the interpreter during the Tribunal’s hearing made it impossible for me to well understand the Tribunal’s questions; and on the other side, those two reasons have also led the Tribunal to misunderstand my actually claims.
(f) I am happy that the Presiding Member has referred some of issues from the UNHCR Handbook. However, the Presiding Member has, apparently, ignored following important issues which are also cited from the UNHCR Handbook:-
190. It should be recalled that an applicant for refugee status is normally in a particular vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.
198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.
(g) The Presiding Member should understand that I, as an applicant for a protection visa under the UN Convention, must be in a particularly vulnerable situation; and I indeed find myself in an alien environment and have to experience serious difficulties, technical and psychological, in submitting my application to Australian government. I have experienced many sufferings in the past; and I must feel apprehensive vis-à-vis authority; I may therefore be afraid to speak freely and give a full and accurate account of my case.
(h) Furthermore, although the Presiding Member attached some of independent country information, but he has actually ignored it completely or just elect part of them which might solely help for his refusal decision, such as:-
· International Religious Freedom Report 2005
· Country Report on Human Rights Practices 2004
(i)I understand that the Court will consider jurisdictional error of the Presiding Member’s decision but not take any responsible for merit review. However, the Presiding Member has failed to consider my claims, properly and fairly; and particularly made an incorrect finding; and therefore, I strongly believe that it must be jurisdictional error that the Court should consider carefully.
Mr Johnson, appearing for the first respondent, submitted that the applicant had not provided evidence such as a transcript of the Tribunal hearing to support the assertion that she experienced difficulties with the interpreter at the Tribunal hearing.
In the absence of a transcript, the only material before this Court about problems in interpretation is the Tribunal decision under the sub-heading “The Hearing”. The decision records a discussion with the applicant concerning her religious activities in China and Australia. This is followed by a consideration on aspects of Christianity and the contents of key passages of the New King James version of the bible. The Tribunal observed that the applicant was unable to consistently account for her circumstances in China and her subsequent departure to Australia.
The Tribunal decision then states:
The Tribunal commented that the applicant had difficulty articulating her claims during the hearing. It commented that sometimes she provided irrelevant and incoherent answers to the Tribunal’s questions. She was asked if she had difficulty communicating or if she had any medical condition which had adversely influenced her ability to articulate her claims. She replied that she had no difficulties communicating with the Tribunal.
The Tribunal asked the interpreter if she had difficulties communicating with the applicant. The interpreter stated she understood what the applicant was saying. (CB 77.5)
Under s.427 of the Migration Act 1958 (Cth) (“the Act”), the Tribunal is required to provide an interpreter when an applicant is unable to give evidence without one: VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [8]. The interpreter should be of sufficient skill such that the applicant is not denied his/her right to a fair hearing: VWFY at [27].
For an applicant to establish that the Tribunal has failed to provide an adequate interpreter, they must be able to demonstrate that the standard of interpretation at the hearing was so inadequate that they was prevented from giving evidence, or that the errors were material to the conclusion of the Tribunal and adverse to the applicant: Applicant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17].
It is the responsibility of this Court to consider whether there is a “correct” translation available against which the interpreter’s performance can be compared: VWFY at [10]. As previously indicated, this evidence is not before the Court. Alternatively, the Court must consider the manner in which the applicant responds, including the responsiveness of interpreted answers to questions asked, the coherence of those questions, the consistencies of one answer with another, the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 per Kinney J at [41]. Perera has subsequently been applied in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [11] and P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [20].
It is apparent from the comments made by the Tribunal member in the decision that he had serious concerns about inconsistencies in the applicant’s answers. The member explored this with the interpreter to find out if there were difficulties in communication between the interpreter and the applicant. The decision records that the interpreter responded that there was not. In the circumstances, I am satisfied that this ground of review cannot be sustained.
Ground two
The Presiding Member failed to comply with its obligation under s.424A(1) of the Act.
Particulars
(a) The Presiding Member failed to provide me his “negative” understandings of my claims submitted to the Tribunal after the hearing. Those “negative understandings should be regarded as “the information” subjected to s.424A(1) of the Act. However, the Presiding Member failed to provide me with the particulars of the “information”; and
(b) The Presiding Member failed to give me a chance to comment on the “information”.
The applicant attended the Tribunal hearing on 23 February 2006. On 1 March 2006, the Tribunal sent to Priscilla Yu, the applicant’s authorised recipient, a letter in accordance with s.424A of the Act. The second paragraph of that letter clearly states:
Your evidence at the hearing raised doubts for the Tribunal as to whether you presented a truthful account of your circumstances in China and Australia. The Tribunal indicated to you at the hearing that it doubted the credibility of your core claims that you were a Christian and that you were implicated in religious activities in China. The following considerations have contributed to the Tribunal’s doubts regarding the credibility of your claims. (CB 61)
The Tribunal then set out a number of issues in respect of which it identified its concerns. Comments were invited in writing to the Tribunal by 15 March 2006.
Priscilla Yu, the applicant’s migration agent, responded on 15 March 2006 (CB 63-65).
I am satisfied that the Tribunal complied with its obligations under s.424A(1) of the Act by clearly setting out its concerns in the letter dated 1 March 2006. The applicant, with the assistance of a registered migration agent, responded to the invitation to comment. There is no indication by the migration agent of the contents of the letter or the time in which to respond. I am satisfied that this ground of review cannot be sustained.
Ground three
The Presiding Member failed to comply with its obligation under s.425 of the Act.
Particulars
(a) It is the fact that I have provided new information, which should be regarded as the “materials”, after the Tribunal’s hearing; and
(b) It is also the fact that the Presiding Member could not make a favourable decision according to those new “materials”; and
(c) In such a situation, the Tribunal should arrange a new hearing subjected to s.425 of the Act.
Mr. Johnson submits that it is presumed that the applicant is referring to a response to the Tribunal’s s.424A letter when she refers to having provided new information after the Tribunal hearing. Mr. Johnson argues that there is no obligation in the Act for the Tribunal to hold a second hearing. The Tribunal was entitled to proceed to make its decision on the information it received both at the hearing and in response to s.424A letter.
I am conscious of the recent decision of Cowdroy J in SZHLM v Minister [2007] FCA 1100 which was decided on 23 October 2007. In SAAP v Minister (2005) 228 CLR 294, the High Court indicated that it can be appropriate for a Tribunal to send a s.424A letter after a hearing. There is no suggestion in SAAP that a response to a post-hearing s.424A letter would require a further hearing. SZHLM did not analyse whether responses to s.424 and 424A letters raise a new issue in the s.425 sense. It seems reasonably clear that the issue in SZHLM was more than a simple comment on information put to the applicant in a s.424A letter. The response was comment on adverse information under s.424A and the request for further information. However, beyond that, the nature of the response said to trigger the obligation to invite the applicant to a new hearing is unclear from SZHLM.
The main issue raised by the applicant in response to the s.424A letter related to the interpreter. This was an issue that the Tribunal member expressed concern about and made enquiries after. As indicated above, the interpreter said that she clearly understood what the applicant was saying. The applicant also confirmed that she understood what was being raised by the Tribunal member. Other than this issue, the applicant’s response essentially repeated the written claims in her original visa application. I am satisfied on the material available to this Court that no new issue was introduced in the response to the s.424A letter which would require a further hearing to comply with s.425.
Ground four
I have to repeatedly stress that the key issue in my case is that my genuine claims have, incorrectly or improperly, interpreted by the interpreter at the Tribunal’s hearing. As a result, the Tribunal misunderstood my claims.
Ground five
In summary, I have never believed that my review application has been fairly and carefully assessed by the Tribunal.
Ground four in effect repeats the issues raised in ground one, while ground five is nothing more than a bland statement that the applicant disagrees with the Tribunal decision and therefore believes she has been treated unfairly. The applicant was ultimately unsuccessful before the Tribunal because she was not considered a credible witness. The Tribunal’s assessment of the applicant’s credibility was based on her demeanour, the inconsistencies in her evidence, her protection visa application statement, her response to the s.424A letter and the independent country information used to assess her claims. The Tribunal considered many of the applicant’s claims to have been fabricated to enhance the visa application. It was unable to find that the applicant is or was ever Christian, or that she would face a real chance of persecution for a Convention related reason if she were to return to China.
Findings in relation to credibility are for the decision maker alone and should not be disturbed on judicial review, unless they were not reasonably open to it on the evidence: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. I agree with Mr Johnson’s submission that the adverse credibility findings were clearly open to the Tribunal on account of the applicant’s unconvincing and inconsistent evidence, the response to s.424A letter and the country information.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of an incidental to this application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 22 January 2008
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