SZJFN v Minister for Immigration
[2007] FMCA 163
•20 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 163 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious persecution in China – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425, 425A Federal Magistrates Court Rules 2001 (Cth) |
| First Applicant: | SZJFN |
| Second Applicant: | SZJFO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2288 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 20 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2007 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court directs that the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 pursuant to rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2288 of 2006
| SZJFN |
First Applicant
| SZJFO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 18 July 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas. The applicants are a husband and wife from China. They had made claims of religious persecution. I adopt (with minor amendments) as additional background for the purposes of this judgment paragraphs 1 to 7 of the Minister’s written submissions filed on 14 February 2007.
Background
The applicants, who are nationals of the Peoples Republic of China, arrived in Australia on 14 October 2005 and applied for protection visas on 24 November 2005. Their application was refused by a delegate of the Minister on 24 February 2006, and on 28 March 2006 they applied for review of that decision by the Refugee Review Tribunal.[1]
[1] See Relevant Documents (RD) 81.
In the primary visa application, only the applicant husband made claims to be a refugee.[2] The delegate assessed the application on the basis that the applicant wife sought a visa as a “member of the family unit”.[3] However, the Tribunal regarded both of the applicants as having made claims under the Refugees Convention.[4]
[2] RD 9, 23.
[3] RD 47.
[4] RD 83.4.
Briefly, the applicant husband claimed that he had been baptised in a local underground church (the Shouters) in May 2004, and in July 2005 was asked to set up a secret liaison station for the church. He did this through a shoe shop which he established in a local village. In September 2005 he learned that the shop had come to the attention of the PSB, and left China. He later heard that the shop had been sealed and his name was on a black list. He continued to practise his religion in Australia.[5]
[5] RD 83-84.
At the Tribunal hearing, the applicant wife also claimed that she had been a member of an underground Christian church, although she does not appear to have articulated any fear of persecution on her own behalf. She discussed her husband’s activities and why he was afraid to go back to China.[6]
[6] RD 86-87.
The applicant wife’s evidence was inconsistent with her husband’s claims in several respects. The Tribunal put this to the applicant husband orally[7] and then in writing.[8] It also invited his comment on information that he had first sought to make arrangements to travel to Australia in early 2005, well before (on his account) the PSB took an interest in him. The applicant husband responded on both issues.[9]
[7] RD 87.
[8] RD 69.
[9] RD 72-73.
The Tribunal did not accept any of the applicants’ claims except as to their nationality.[10] It gave reasons which were, briefly, as follows:
i)The applicant husband showed a “notable lack of knowledge” about Shouters’ beliefs and his evidence about participating in their activities was “vague and implausible”.[11]
ii)The applicant husband’s account of why he had joined the church in 2004 was not convincing.[12]
iii)The reasons offered as to why the applicant husband had been asked to set up a secret liaison station were “unsatisfactory and implausible”, especially given his short membership of the church and lack of knowledge. It was also odd that he had delegated this task to someone else, and that his wife had no memory of it until prompted.[13]
iv)There were other significant discrepancies between the evidence of the applicants – as to the nature of the husband’s activities and when the wife had joined the church. The Tribunal was not impressed by the applicant husband’s explanation for these discrepancies.[14]
v)The fact that the applicant husband had first sought a visa for Australia in early 2005 undermined his claim that he had decided to leave China in September of that year. The Tribunal did not accept the husband’s explanation that the earlier application was made by an agent without his involvement. Further, after obtaining a visa he had waited three weeks before leaving even though (on his account) he had to leave quickly because the PSB knew of his activities.[15]
vi)The Tribunal also considered two supporting letters apparently from the applicants’ local church in Sydney.[16] In view of their lack of detail it did not regard them as adding anything to the applicants’ claims.[17] Even accepting that the applicants were attending church in Sydney, the Tribunal considered that this was for the purpose of strengthening their refugee claims and should therefore be disregarded pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
[10] RD 93.6.
[11] RD 93.
[12] RD 94.
[13] RD 94.
[14] RD 95.
[15] RD 95.
[16] RD 74-75.
[17] RD 95-96.
These proceedings began with a show cause application filed on 17 August 2006. That application asserted actual notification of the Tribunal decision on 27 July 2006. On that basis I find that the application was filed within time. The application was supported by a short affidavit which simply identified the first applicant and annexed a copy of the Tribunal decision. The decision appears in the book of relevant documents filed on behalf of the Minister on 10 October 2006. I received that book of relevant documents as evidence for the purposes of today’s hearing.
I gave directions in relation to this matter on 9 October 2006. The first applicant, at least, attended with the assistance of a Mandarin interpreter. I gave the applicants the opportunity to file and serve further affidavit evidence and an amended application. The applicants took up the opportunity to file an amended application which was done on 13 November 2006. No further affidavit evidence has been filed. I note that the applicants declined the opportunity to participate in the Minister’s panel advice scheme.
The grounds of review advanced in the amended application and the issues relating to them are adequately covered in the Minister’s written submissions, subject to an augmentation made orally by Mr Kennett for the Minister and some additional observations which I wish to make. I adopt for the purposes of this judgment, with necessary amendments, paragraphs 8 through to 15 of the Minister’s written submissions. I also adopt paragraph 18.
Issues in the present proceedings
Ground 1
Ground 1 asserts that the Tribunal failed to consider (evidently) the applicant husband’s claim “properly and fairly”. The substance of the argument appears to be that the Tribunal “ignored” the explanation that the applicant husband gave, in response to the Tribunal’s written invitation, about the discrepancies between his evidence and his wife’s.[18] There is a suggestion that the Tribunal’s invitation to comment, while sent in accordance with s.424A of the Migration Act, was a sham intended merely to foreclose later judicial review; and that the Tribunal never intended to consider the applicants’ claim properly.[19]
[18] See particular f.
[19] See particulars c, g.
The central contention, that the Tribunal “ignored” the applicant husband’s response, is contradicted by the written record. The Tribunal set out his response in full,[20] then addressed and rejected it.[21] The applicant husband’s real claim appears to be that he was not believed.
[20] RD 88-89.
[21] RD 94-95.
There is no evidence to support any allegation of bias or bad faith against the Tribunal. The fact that it has rejected the applicant husband’s claims does not begin to justify such an allegation.
Ground 2
Ground 2 asserts a failure by the Tribunal to comply with its obligations under s.425 of the Migration Act.
It is not in doubt that the Tribunal invited the applicants to attend a hearing (as s.425 requires) and they attended and gave evidence. The applicants contend that the obligation to issue an invitation arose again when, having considered the applicant husband’s response to the s.424A letter, the Tribunal found itself unable to decide the matter favourably to the applicants.
That contention runs contrary to the text and context of s.425of the Migration Act.
Section 425(1) requires that the Tribunal “invite” an applicant for review to appear before it. That obligation is, on its face, satisfied when an invitation is issued in the manner set out in s.425A (at least if the invitation is later made good by holding a hearing at which there is a real opportunity to give evidence on the relevant issues). It is not framed as a continuing obligation to provide an applicant with an oral hearing on all issues as and when they arise.
Section 425(2) provides for circumstances in which the obligation in s.425(1) does not arise. By virtue of para.(a) the obligation does not arise if the Tribunal has already decided that a favourable decision should be given. It does not follow that the obligation continues until the result mentioned in s.425(2)(a) is achieved, or that the obligation revives when an unfavourable decision is in prospect.
The construction contended for by the applicants would prevent the Tribunal from giving an unfavourable decision. On that construction, so long as the “material before” the Tribunal failed to sustain a favourable decision, the Tribunal would have to keep inviting the visa applicant to attend further hearings. That was clearly not the intention behind s.425.
Ground 3
Ground 3 contends that the Tribunal was obliged to invite comment, under s.424A, on the negative view it had formed about the applicant husband’s claims in response to the invitation it made.
That contention is misconceived. The applicant husband’s claims were not in themselves “part of the reason” for affirming the decision under review (cf. s.424A(1)) and, in any event, they were information given by the Applicants themselves for the purposes of the review (cf. s.424A(3)(b)). The Tribunal’s opinion about those claims may have been “part of the reason” for affirming the delegate’s decision, but it was not “information” and thus did not engage s.424A(1).[22]
[22] See VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, 476-477 [24] and cases cited there.
Ground 4
Ground 4 of the amended application asserts that the Tribunal made its decision relying on information from letters from the applicants’ local church. This ground appears to be an assertion that the Tribunal erred in not inviting comment on its observations concerning those letters pursuant to s.424A of the Migration Act.
The Tribunal dealt with the supporting letters on pages 95 and 96 of the court book. The presiding member said:
The Tribunal has considered the supporting letters from the Local Church. However, the letters merely state that the applicants attend the church meeting in Blacktown on Sunday morning. The letters do not contain letterheads and it is not clear who are the signatories, what are their backgrounds and credentials and in what capacity they have provided these letters. In addition, there was no information in the letters about the applicants’ background, whether they are Shouters, how long they have been attending the church meetings and why. Accordingly, the letters do not add any value to the applicants’ claims.
In my view, the Tribunal in this passage was not seeking to draw any adverse conclusion from any information in the letters. Rather, the Tribunal was observing that there was no information in the letters which supported the applicants’ claims. This was not information requiring disclosure pursuant to s.424A. In any event, the letters were provided by the applicants to the Tribunal in support of their review application. Accordingly, no disclosure of any information in them relied upon to affirm the delegate’s decision was required because of the operation of s.424A(3)(b) of the Migration Act.
Ground 5
Ground 5 asserts a lack of knowledge or understanding by the Tribunal. It does not raise any issue capable of leading to a grant of relief on judicial review.
Other issues
The applicants did not take up the opportunity I gave them to file written submissions in support of their application to this Court. Both applicants attended Court and the first applicant took the opportunity to make extensive oral submissions. In that, he was supported by his daughter whom I permitted to assist him as a Mackenzie Friend. In fact, her role extended rather beyond that and I permitted her to make some submissions of her own.
The thrust of those submissions was that the hearing conducted by the Tribunal involved serious problems in the interpretation of the second applicant’s (the applicant wife’s) evidence. The applicants contend that the applicant wife did not understand what she was being asked by the presiding member and could not make herself understood. The applicants submit that the problem arose because the interpreter provided was a Mandarin interpreter whereas the applicant wife speaks the Fuqingese dialect.
There is no doubt that the Tribunal decision turned, in part, on discrepancies between the applicant husband’s evidence and that of his wife at the hearing. That is clear from what the presiding member says on page 95 of the court book. It is also clear that the applicant’s daughter, who attended the hearing and gave evidence, was concerned about what she saw as interpretation problems. The presiding member herself notes this on page 87 of the court book. The presiding member says:
In the course of taking oral evidence from the applicant wife, the applicant daughter interjected on a number of occasions correcting the interpreter and stating that her mother spoke a different dialect. The Tribunal took time to ask the applicant wife if she understood the interpreter clearly. She said that she did. Nevertheless, the Tribunal endeavoured to repeat and rephrase questions on the occasion when the applicant daughter raised objections. In their response to the Tribunal’s hearing invitation, the applicants had requested a Mandarin interpreter and had not specified any dialects. Having carefully observed the applicant wife while giving evidence, the Tribunal was satisfied that she understood the questions that were being asked of her through the interpreter and that she was not put at a disadvantage by her dialect.
Nevertheless, the first applicant, and in particular his daughter, contend that the conclusion reached by the presiding member is wrong and that the interpretation problems rendered the hearing unfair. The applicant daughter asserted that she could point to particular problems in interpretation at particular points in the hearing and gave an example. As I pointed out to her, there were a number of problems with this approach.
First, these were mere assertions from the bar table and neither affidavit evidence, nor a transcript had been filed. Secondly, in order for me to form a view about whether the presiding member’s conclusion was sound or not, I would have needed expert evidence from an independent witness who was able to understand both Mandarin and English, and possibly also Fuqingese. That witness would probably have needed to have examined a transcript and also to have listened to the audio tape of the Tribunal hearing. No such evidence is available. Even if it had been, I do not think that the evidence would have assisted the applicants. They raise the issue of interpretation problems as an issue of procedural fairness. To the extent that procedural fairness, in terms of the fair hearing rule, has any application in this case, notwithstanding s.422B of the Migration Act, fairness has been demonstrated on the face of the record.
The decision record records at page 87 of the court book, that following the applicant wife’s evidence, the first applicant was brought back into the hearing room and the apparent discrepancies were put to him and he was given the opportunity to comment. Secondly, both applicants were given the opportunity to comment in writing on the apparent discrepancies by letter dated 29 May 2006, court book page 69. The first applicant took the opportunity to provide written comments and referred to his wife’s inability to understand the mandarin language well. That response was taken into account by the presiding member in her reasons at court book page 94. There is nothing unfair about the Tribunal’s approach. The real question, however, is whether the Tribunal met its statutory obligations. I find that it did so. The applicants were invited to a hearing in accordance with s.425 of the Migration Act. They attended and gave evidence. They were provided with an interpreter of the kind they had requested. The presiding member considered the daughter’s challenges to the quality of interpretation and came to a conclusion about them.
There is no persuasive evidence before me to establish that the hearing opportunity afforded to the applicants was so inadequate as to amount to an empty gesture. Secondly, I am satisfied that the Tribunal met its obligation pursuant to s.424A of the Migration Act to put in writing to the applicants the discrepancies between the evidence of the first and second applicants.
I find that the decision of the Tribunal is free from jurisdictional error and I will order that the application be dismissed.
On the question of costs, the application having been dismissed, costs should follow the event. The Minister seeks scale costs which, at this stage of a proceeding in the Court’s migration jurisdiction is $5,000. The first applicant expressed dissatisfaction with my decision but did not otherwise make any submissions relating to costs. I will order that the applicants pay the first respondents costs and disbursements of and incidental to the application, in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 February 2007
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