SZJGA v Minister for Immigration - [2007] FMCA 1867

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJGA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1867

MIGRATION – Review of decision of RRT – where applicant claims inadequate interpretation at Tribunal – where no evidence brought.

Migration Act 1958, s.424A

SAAP v Ministerfor Immigration (2005) FCA 24
Minister for Immigration v Al Shamry (2002) 110 FCR 27

Applicant:

SZJGA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2314 of 2006

Judgment of:

Raphael FM

Hearing date:

5 November 2007

Date of last submission:

5 November 2007

Delivered at:

Sydney

Delivered on:

5 November 2007

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant pay the first respondent's costs assessed in the sum of $2,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2314 of 2006

SZJGA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 28 January 2006. On 20 February 2006 he applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa. On 17 March 2006 a delegate of the Minister refused to grant him a protection visa. On 19 April 2006 the applicant applied for review of that decision by the Refugee Review Tribunal. On 9 May 2006 the applicant signed a form responding to a hearing invitation advising that he would come to the hearing on 20 June 2006 and required an interpreter in the Fujian dialect. A hearing was held and on 4 July 2006 the Tribunal determined to affirm the decision not to grant the applicant a protection visa. That decision was handed down on 25 July 2007.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations are found annexed to his application at [CB 19]. He told how he became interested in Falun Gong prior to its being banned in 1999. After that event occurred he was taken away by the police and questioned for 24 hours. They knew that he was a team leader:
“They intended to charge me. I bribed a police officer to get myself released, and for my passport ready to leave China. I paid what would then be 100,000 for my passport and the secure of my release. I went to Papua New Guinea on 29 May 2000 with a business visa. I continued to practice Falun Gong there, but I found there was no space for it and I could not get formal protection from Papua New Guinea. As I had to leave Papua New Guinea one day, and I dared not return to China, and had nowhere to go, I came to Australia for my protection.”
The applicant produced to the Tribunal two documents referring to the proposed arrest of the applicant on 3 June 2000. The Tribunal noted that the applicant's passport had been issued on 2 March 2000 and had been renewed whilst he was living in Papua New Guinea.
The Tribunal asked the applicant a number of questions about his knowledge of the Falun Gong philosophy:
“I asked the applicant if he could tell me how many sets of exercises/movements were practiced in Falun Gong. There was a long delay before the applicant stated that he could not remember how many sets were involved. He stated he knew how to do the exercises. I asked who founded Falun Gong. There was a long pause. He could not say. I asked when it was founded. Again there was a long pause and the applicant stated he could not remember.”
The Tribunal also put to the applicant the inconsistencies concerning his passport. He had told the Tribunal that he had arranged to get the passport and bribed the necessary officials whilst he was in detention. He had said that he had been placed in detention on 16 April whereas the passport had been issued on 2 March. The Tribunal asked the applicant if he had practised Falun Gong in Papua New Guinea. He said that he did at the beginning but he had been attacked by people there:
“I asked the applicant some further questions about the preparation and the movements involved in the practice of Falun Gong. He was unable to accurately answer any of my questions.”
The Tribunal came to the view, not unexpectedly given his responses to its questions, that it could not accept that he was a genuine Falun Gong practitioner. It was not satisfied that he was detained by the authorities in the PRC or that he had fled to PNG because of the persecution. The Tribunal noted the documents that the applicant had produced but declined to give them any weight given the other failings of credibility that it had noted.
The applicant filed an application with this court on 21 August 2006 seeking review of the decision of the Tribunal. He attended a directions hearing before the Registrar at which time he was given the opportunity to file an amended application. He did this on 29 December 2006. The amended application is familiar, it makes reference to s.424A of the Migration Act 1958 (the “Act”) and the decision in SAAP v Ministerfor Immigration (2005) FCA 24 per McHugh J and then the decision in the Minister for Immigration v Al Shamry (2002) 110 FCR 27.
Before me today that document was not referred to but it should be clear from my précis of the Tribunal decision that "information" as defined under s.424A was not a factor in the Tribunal's decision at all, except possibly, the applicant's passport which was a document which that applicant had presented to the Tribunal himself.
The applicant's ground for claiming that the Tribunal had fallen into jurisdictional error in the manner in which it came to its decision was today based upon the fact that he claimed he did not have a Fujian dialect speaking interpreter. There is no doubt that the applicant asked for a Fujian dialect speaking interpreter but there is some doubt as to whether he speaks the truth when he says that one was not provided. At [CB 61] there is found the RRT hearing record. Under interpreters there is a notification that the language/dialect spoken by the interpreter was Mandarin/Fujian.
The applicant said that he could not provide us with any evidence about what happened in the Tribunal hearing because he did not have the tape. Ms Kantaria, who appears on behalf of the Minister, advised me that a copy of the tape was sent to the scheme lawyer on 11 October 2006. The applicant said that he had never spoken to the scheme lawyer. In the absence of any clear evidence about this I propose to proceed on the assumption that a scheme lawyer acted as he was required to do under the scheme.
No doubt when the applicant makes his inevitable appeal against this decision there will be an opportunity for him to bring evidence to the Full Bench that the scheme lawyer did not act in accordance with his mandate, did not contact the applicant, did not provide the applicant with advice and did not listen to the tape. He can also provide evidence about the interpretation if that is available. If the applicant provides such proof no doubt the Full Bench will take it into account when considering what to do about the matter. However, I would respectfully endorse the submission made by Ms Kantaria that if one reads the grounds and reasons for the decision by the Tribunal it seemed that a lot of questions were asked and answered in a way that indicates that the applicant did understand what he was being questioned about.
Given the failure of the applicant to provide me with any evidence that would indicate that s.425 of the Act was not enlivened at this Tribunal hearing and given my remarks regarding the irrelevance of s.424A of the Act to this application for review I am unable to find that there are any grounds upon which I can hold that the Tribunal fell into jurisdictional error.
I dismiss the application. I order the applicant pay the first respondent's costs in the sum of $2,600.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: