SZIVC v Minister for Immigration
[2006] FMCA 1308
•29 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1308 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Tribunal decision – where applicant wrote to the Tribunal and complained about poor interpreting – citizen of People’s Republic of China claiming fear of persecution for reason of practice of Tian Dao – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal failed to comply with Migration Act 1958 s.425 – a court conducting judicial review does not undertake merits review – inadequate interpreting may constitute a breach of s.425 – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 197 CLR 510 SZEMS v Minister for Immigration & Multicultural Affairs [2006] FCA 359 Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 |
| Applicant: | SZIVC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1337 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 August 2006 |
| Date of last submission: | 29 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McDonald |
| 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 $3,150.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1337 of 2006
| SZIVC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 signed on 29th March 2006 and handed down on 11th April.
The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 21st September 2005 on a three-month temporary business visa. On 17th November 2005 he applied for a Protection (Class XA) visa which was refused on 15th December in that year.
On 16th January 2006 the Applicant applied to the Refugee Review Tribunal for a review of that decision. In the application for review, which was submitted with the assistance of a migration agent, the Applicant set out no new material but submitted with the application a copy of the delegate's Protection (Class XA) visa decision record.
The Tribunal wrote to the Applicant inviting him to attend a hearing which took place on 20th March 2006. The Applicant attended and gave evidence with the assistance of an interpreter. The Applicant was not represented by any adviser at the hearing, nor did he bring forward any witnesses. The Tribunal signed the decision on 21st March and notified the Applicant that the decision would be handed down on
11th April.
In the meantime, the Applicant wrote to the Tribunal on 28th March setting out some concerns about the Tribunal's understanding of certain concepts and proper names as translated by the interpreter at the hearing. A copy of the Applicant's letter appears at pages 89 and 90 of the Court Book. In that letter the Applicant complains that the interpreter was unable to correctly interpret certain terms so that the Tribunal could not understand them and made it clear that the terms were important because it would demonstrate that he is a Taoist but not a Buddhist.
The Applicant also went on to complain about the "very poor performance of the interpreter at the Tribunal's hearing". As a result, the Applicant did not consider that the Tribunal had genuinely and fairly considered all of the material relating to his case and asked for a fresh hearing.
The Tribunal said at page 96 that it had fully considered the Applicant's concerns, and indeed referred to the Applicant's letter in the final two paragraphs of the claims and evidence section of the decision which are set out on page 101 of the Court Book. The Tribunal clearly altered its decision to include reference to the Applicant's letter of 28th March and signed the amended decision on 29th March and that decision was released on the original handing down date of 11th April.
The Tribunal considered the Applicant's claims and evidence in three pages, and they are set out on pages 99 to 101 of the Court Book. The Tribunal noted that the Applicant claimed a fear of persecution for Convention-related reasons of religion, claiming that he is a follower of a form of Taoism called Tian Dao, which he identified as a variant of Yi Guan Dao. The Tribunal noted that the Applicant claimed to have followed Tian Dao since 2003.
The Tribunal noted the position of the authorities in the People's Republic of China in relation to Taoism was not discussed at all in the China chapter of the United States Department of States Country Reports on Human Rights Practices 2004. The Tribunal also noted that it could find no evidence of any negative attitude on the part of presumably the People's Republic of China to Taoism and its variant forms in the China chapters of similarly sourced reports during preceding years. The Tribunal said:
The Tribunal searched Amnesty International reports and Human Rights Watch Asia reports for evidence of mistreatment in the PRC of Taoists in general and Tian Dao followers in particular and could find none. Even amongst reports relating to Tian Dao practice in Taiwan there was no evidence of concern amongst practitioners regarding the treatment of their brethren in the PRC.
The Tribunal went on to note that the Applicant provided no evidence to fill the factual gap identified by the primary decision-maker, that is, the delegate, regarding the lack of evidence of Tian Dao followers in the PRC facing harassment. The Tribunal asked the Applicant questions, including if he had any evidence of involvement in Tian Dao, and asked the Applicant if there was evidence of Tian Dao followers being harassed and if they were harassed, why did not Tian Dao followers in Australia draw the attention of the media or human rights groups to the plight of Tian Dao followers in the People's Republic of China. The Tribunal said that the Applicant said that no Tian Dao follower would do that and the Tribunal noted that no-one would report harassment of their group according to the Applicant.
The Tribunal’s Findings and Reasons
The Tribunal's Findings and Reasons are set out on pages 102 and 103 of the Court Book. The Tribunal accepted that the Applicant was a national of the People's Republic of China based on his passport. The Tribunal did not accept on the evidence before it that the Applicant had another identity and did not accept that there was any doubt as to the genuineness of the Applicant's passport.
The Tribunal did not accept that the Applicant left the People's Republic of China for the reasons that he claimed and took the view that whilst there was evidence of Taoism and of Tian Dao being practised in the People's Republic of China, there is no evidence he said of practitioners of these religious traditions facing institutional or institutionally sanctioned harassment, repression or persecution.
The Tribunal considered the Applicant's explanation for the absence of such evidence but dismissed it as an implausible self-serving invention. The Tribunal considered that the Applicant had not provided sufficient evidence of having been a Tian Dao practitioner in China prior to coming to Australia or of having been one since coming to Australia.
The Tribunal held that there was no evidence to support the position that he would face a real chance of persecution if he were to return to China and could find no evidence to suggest that Buddhists or followers of Yi Guan Dao face a real chance of persecution in the People's Republic of China.
The Tribunal was not satisfied therefore that the Applicant was a person to whom Australia has protection obligations and did not satisfy the criterion set out in sub‑s.36(2) for a protection visa and affirmed the decision not to grant a visa.
Application for Judicial Review
The Applicant filed an Amended Application on 24th July. In that application he seeks orders quashing the decision of the Tribunal and remitting the application to a differently constituted Tribunal to be determined in accordance to the law.
The Applicant sets out five grounds. The first one is that the Tribunal member failed to assess his claims fairly and properly in that he claimed that, first, the Tribunal completely ignored his complaint letter, parts of which he quotes; second, that the Tribunal Member himself did not have any basic or necessary knowledge about Buddhism or Buddhists or Taoism or Taoist or Tian Dao or Taoists; third, the Tribunal Member particularly did not have any basic or necessary knowledge that even today Tian Dao has been banned in China and that thousands of Taoists and Yi Guan Dao have been subjected to persecution by the Chinese government since the communists took power in mainland China.
The Applicant's second ground was that the Tribunal failed to comply with its obligation under sub‑s.424A(1) of the Act.
The third ground was the Tribunal failed to comply with its obligations under s.425 of the Act, which is the section that says the Tribunal must invite the Applicant to appear. The Applicant's claim was that, first, the interpreter at the hearing of the Tribunal was not able to translate the specific terms in relation to Tian Dao so that the Tribunal Member misunderstood the Applicant's claims and made it impossible for the Applicant to give oral evidence in support of his applications.
The Applicant further claimed that the presiding Member gave him strong pressure mentally and psychologically so that he was unable to have a genuine chance to make his claims, that he was forced to give his answer as simply as possible but he was interrupted many times during the Tribunal hearing. He further claimed that he had been denied a chance to present an argument against negative issues, which appears to be either a claim of denial of common law natural justice or a repetition of a claim of a breach of s.424A(1).
Fourth, he said that he never believed that his review application was fairly and carefully assessed by the Tribunal.
And fifth, he emphasised that he does have a real chance of being persecuted on return to the People's Republic of China and that that fear is well founded.
At the hearing the Applicant concentrated his oral submissions on the deficiencies of the interpreter in translating specific religious terms and the failure of the Tribunal Member to obtain independent country information to the effect that Tian Dao and other forms of Yi Guan Dao are indeed illegal and followers are subject to persecution in China.
The Applicant sought an explanation of the real reason why the Tribunal refused his application, to which I explained that the only reasons which I could inform him were those set out in the Tribunal decision. He also queried as to why the solicitor for the Minister sought to make some minor corrections to matters in her outline of submissions, which I explained were merely matters of correcting errors by the way of typographical errors. Nothing turns on that in my view.
What is important, however, from the point of view of the Applicant's case is that the Applicant sought to tender a decision record of another decision of the Refugee Review Tribunal. This was a decision of another Tribunal Member signed on 8th December 2005 and identified as N05/52143 [2005] RRTA 334 (8th December 2005). That was a decision where the Tribunal remitted the matter for reconsideration, with the direction that the applicants in that case, the children and their mother, were persons to whom Australia has protection obligations under the Refugees Convention.
The Applicant submitted that document to point out that in this other decision the applicant or the applicants had been successful and had been successful partly because the Tribunal found independent country information which supported their claim that as followers of Tian Dao they were subject to persecution in the People's Republic of China.
The solicitor for the Respondent objected to that document on the basis of relevance but I indicated that I would consider it, at the same time pointing out that the Court on a judicial review application does not undertake a merits review. Thus, any challenge to a factual finding of the Tribunal is not a matter that the Court can entertain.
That being said, I have considered the Applicant's application. As to his first claim that the Tribunal Member completely ignored his complaint letter, it is clear from the decision itself that that is incorrect. The Tribunal Member refers to it in the decision at pages 96 and 101 of the Court Book and addresses the matters contained within that letter. It is quite clear that the Tribunal did consider the matters contained in the letter of complaint.
As to the second particular that the Member did not have any basic or necessary knowledge about the matters, that to my view is no more than a challenge to the merits of the decision and merits review is not available on judicial review. Again, the claim that the Tribunal did not have knowledge that Tian Dao had been banned in China and thousands of Taoists and Yi Guan Dao had been subject to persecution is a challenge to the factual findings of the Tribunal.
A Court conducting judicial review does not consider the merits of the decision, i.e., the factual findings, and I refer to the well-known decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Provided there is evidence upon which a factual finding can be made, such findings remain purely the province of the decision-maker. Even a factual error is not a jurisdictional error, and I refer to Abebe v Commonwealth (1999) 197 CLR 510, a 1999 decision of the High Court.
As such, notwithstanding the Applicant's claims that the Tribunal Member made a significant factual error in finding that followers of Tian Dao are not subject to persecution in the People's Republic of China that is not a matter which the Court can take into account. It is not a jurisdictional error.
There is also a complaint that the Tribunal failed to comply with
sub-s.424A(1) of the Migration Act. There are no particulars provided of that and indeed the decision is based on the Applicant's evidence and the Tribunal's consideration of independent country information. It is also based on a lack of acceptance by the Tribunal of the credibility of the Applicant's evidence and of the Tribunal's finding that the Applicant had not provided sufficient evidence that the followers of Tian Dao in China were subject to persecution.
In short, the Applicant's claim of a breach of sub-s.424A(1) must fail because that section does not apply to the matters in sub-s.424A(3), in particular (a), information -
that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application.
There is no breach of sub-s.424A(1) and accordingly no jurisdictional error arising from it.
As to the Applicant's claim of a breach of s.425 due to the alleged failings of the interpreter at the Tribunal hearing, the solicitor for the Minister concedes in her submissions that as a matter of principle inadequate interpreting may constitute a breach of s.425 of the Act in the sense that it may constitute a failure to provide a real and meaningful invitation to attend a hearing. I am referred to the decision of SZEMS v Minister for Immigration & Multicultural Affairs [2006] FCA 359 at [20] to [22]. However, it is submitted, and I believe correctly, there is no evidence of any difficulty with the interpreter that deprived the Applicant of a reasonable opportunity to present his case. There is no transcript of the hearing provided which would give some clue perhaps to interpreting difficulties. It should be recalled that the Applicant made a complaint about that very issue and the Tribunal Member dealt with that complaint in the amended decision, that is, the decision that was finally signed on 29th March.
The solicitor for the Minister also concedes that there is authority that suggests that interruptions to an applicant's evidence can amount to a breach of s.425, and I am referred to a decision of Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 at [77] – [80]. However, as Gray J made clear in that case, evidence must be adduced to establish that what took place was so defective as to render the invitation to a hearing other than real and genuine. Again, there is no transcript. A transcript of the hearing may have or may not have shown that there were so many interruptions that the Applicant was not able to have a proper hearing and give his evidence. There is no transcript.
It follows that no jurisdictional error has been made out and whilst I am mindful of the fact that the Applicant is not legally represented at the hearing today, he did have legal advice from a barrister on the Refugee Review Tribunal's Legal Advice Panel. That barrister, however, did not appear at the hearing and indeed members of the RRT Legal Advice Panel do not appear for applicants at a hearing unless separate and specific arrangements are made.
There is no other arguable case for a jurisdictional error that I can ascertain. Nevertheless, there is one matter to which I consider it appropriate to refer. It is easy to understand why the Applicant would feel aggrieved that the decision in his case was affirmed partly for the reason that the Tribunal found that there was no independent country information that supported his claim that followers of Tian Dao were subject to persecution in the People's Republic of China. It is also noteworthy that the Tribunal criticised the Applicant's case in that no evidence to that effect was provided.
The Applicant of course pointed out that another Tribunal Member on 8th December 2005 was able to find out that there was independent country information upon which she could be satisfied that Tian Dao remains "very illegal", a "universal villainy" and is not likely to be accepted by the government of the People's Republic of China any time soon, especially given the recent scrutiny of local religions and groups recorded as cults following a campaign against Falun Gong. The decision in that particular matter sets out a number of sorts, including, interestingly enough, a 1996 report from Amnesty International headed Women in China: ‘Detained, Victimised But Mobilised’, and the Applicant could well ask why it was that one Tribunal Member was able to find independent country evidence whereas the Tribunal Member who heard his case was able to state definitively that there was none.
Regrettably for the Applicant, that is not a jurisdictional error and it will not affect the outcome of his case. It is a matter, however, which may well be of concern to the Principal Member of the Refugee Review Tribunal, and of course the Refugee Review Tribunal, is a party to these proceedings. It would appear to me that for the Tribunal to maintain the confidence of those people who have recourse to it and of the community in general, that there should be some uniformity in the findings as to whether there is or is not evidence that the Applicant's claimed religion Tian Dao is banned in the People's Republic of China and that followers of that particular belief are persecuted.
It is not a matter, as I said, that the Court can do anything about other than to bring it to the attention of the Principal Member of the Refugee Review Tribunal. It is, however, a matter that I believe of sufficient concern that it should be raised and I propose to direct that a copy of this decision should be made available to the Principal Member of the Refugee Review Tribunal for his consideration.
Regrettably for the Applicant, however, as there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. As it is a privative clause decision, it is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account. The application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The amount sought is $3,150.00. In my view, there is no reason not to make a costs order on behalf of a successful party. The amount sought, $3,150.00, is a modest sum in the circumstances and it is certainly an amount which I consider appropriate. In my view I should exercise my discretion to order that the applicant pay the First Respondent's costs in the sum of $3,150.00. I will, however, allow six months to pay.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 6 September 2006
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