SZJLS v Minister for Immigration

Case •

[2007] FMCA 235

•

21 February 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 235
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution on the ground of the religion – allegation of bias.
Migration Act 1958 (Cth), ss.424A, 474
NADH v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 328
Pereira v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 Long v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 183 Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555 Soltanyzand v Minister for Immigration & Multicultural Affairs [2000] FCA 917
Arif v Minister for Immigration & Multicultural Affairs [2002] FCA 1053
Jones v Dunkel (1959) 101 CLR 298
Applicant: SZJLS
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2823 of 2006
Judgment of: Scarlett FM
Hearing date: 21 February 2007
Date of Last Submission: 21 February 2007
Delivered at: Sydney
Delivered on: 21 February 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms McWilliam
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00. 

  4. I allow six (6) months to pay. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2823 of 2006

SZJLS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 17th August 2006 after a hearing that took place on 31st July 2006.  The decision was handed down on 29th August 2006. 

  2. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.  By means of an application and an affidavit, filed on 3rd October 2006, the applicant seeks judicial review of the Tribunal decision.

Background

  1. The Applicant is a citizen of the Peoples Republic of China. He arrived in Australia on 13th July 1994.  He did not apply for a protection visa until 6th July 1999.  The delegate decided to refuse to grant the visa on 9th August 2004.  The Applicant sought review of that decision from the Refugee Review Tribunal and the Tribunal affirmed the decision on 9th March 2005.

  2. The Applicant then sought judicial review of that decision and on 10th May 2005, the Federal Magistrates Court quashed the decision and made an order in the nature of mandamus bringing the application of the Tribunal for determination according to law.  The Tribunal invited the Applicant to appear at a hearing on 31st July 2006.  The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.  The Applicant was accompanied by his migration advisor.  He provided further documentary evidence to the Tribunal, including photographs, a baptism certificate, and a letter from a Catholic clergyman.

  3. The Applicant claimed a fear of persecution for reasons of religion, on the basis that he was a Catholic but a member of an underground Catholic Church.  The Applicant told the Tribunal that notwithstanding the fact that he had been away from China for some 12 years, he maintained contact with his wife who told him that agents from the PSB were still looking for him. A copy of the Tribunal's decision record can be found at page 93 through to 112 of the Court Book. 

  4. In making its decision the Tribunal considered information from a number of sources. The Tribunal referred to information provided in the application for a protection visa; information given to the Tribunal by the Applicant; including evidence given to the first Tribunal hearing; documents provided at the second Tribunal hearing; and a written answer to a letter written to the Applicant on 31st July 2006 under the provisions of section 424A of the Migration Act.

  5. I note that there is an error on page 103 of the Court Book, in that the date of the section 424A letter is given as 31st July 2005, instead of 31st July 2006. The Applicant replied to that letter, in writing, on 9th August 2006.  The Tribunal also considered independent country information about religious freedom in China. 

The Tribunal's findings and reasons

  1. The Tribunal's findings and reasons can be found at page 109 through 112 of the Court Book. The Tribunal accepted that the Applicant was a citizen of the Peoples Republic of China and accepted some evidence about his background.  The Tribunal did not accept that the Applicant was born into a catholic family in China or that he was a committed catholic whilst living in that country. The Tribunal examined the Applicant's evidence about his Catholicism and the Catholicism that he claimed was practised by his parents, but did not accept that evidence. 

  2. The Tribunal accepted that the Applicant applied for a protection visa in 1999 nearly five years after he first arrived in Australia. The Tribunal did not accept his explanation for this extraordinary delay.  The Tribunal did accept that the Applicant had been attending religious instruction and services in the Catholic Church in Sydney. The Tribunal accepted evidence in writing from a catholic priest about the Applicant's attending services and classes, but considered that the Applicant had engaged in conduct relating to his religion for the purposes of strengthening his claims for refugee status.   

  3. The Tribunal, on considering the evidence found that the Applicant did not face a real chance of persecution for reasons of his religion or imputed religion if he were to return to China at the time of the hearing or in the foreseeable future. 

  4. The Tribunal was not satisfied that the Applicant had a well founded view of persecution for any Convention related reason. 

The application for judicial review

  1. The Applicant seeks a review of that decision and in an amended application, filed on 2nd January 2007, seeks orders in the nature of certiorari quashing the Tribunal decision:

    i)an order in the nature of mandamus requiring the Tribunal to rehear and reconsider the Applicant's application;

    ii)an order in the nature of prohibition against the First Respondent Minister, its jurisdiction, by failing to deal with the integers of his claim;

    iii)that the Tribunal constructively failed to exercise jurisdiction in accordance with section 425 of the Migration Act by failing to ensure that the invitation to a hearing was a real and meaningful invitation.

    The Applicant expanded on those claims in his appearance before the Court today. 

  2. Turning first of all to his claim that the Tribunal failed to comply with s.424A of the Migration Act the Applicant sets out four particulars:

    a)the Tribunal did not accept that the Applicant's parents were committed Catholics;

    b)the Tribunal did not accept that the Applicant's parents were member of an underground catholic church;

    c)the Tribunal did not accept that the Applicant's parents were mistreated or harmed for reasons of their religion; and

    d)The only source of information about the Applicant's parents came from the Applicant's original protection visa application.

  3. The Applicant told the Court that he was not given a treatment during the hearing because the Tribunal did not accept a number of factual claims about his parents and about his catholic religion. The counsel for the First Respondent, Ms McWilliam, in a written submission, responds to the Applicant's claim of breach of s.424A of the Migration Act in two ways. First, by pointing out that the Tribunals refusal to accept the Applicant's claims about his parents was a finding made by the Tribunal, but it was not part of the reason that the Tribunal affirmed the decision under review.

  4. She points out that the reasons for affirming the delegate's decision were:

    i)the delay in applying for a protection visa;

    ii)the inconsistency in the Applicant's evidence about bribing the police; and

    iii)The Applicant's conduct which was inconsistent with his claim to be a catholic. 

  5. Second, Ms McWilliam pointed out that whilst the Applicant did, in fact, make statements about his parents in the statement accompanying his initial application, he also provided information about his parents in oral evidence to both the first and second Tribunal hearings. He not merely adopted that information, she submits, but re-stated it. Thus, even if the information were found to have been part of the reason confirming the delegate's decision, the Applicant republished this information thereby bringing it within the exclusionary provision of sub-s.424A(3)(b) of the Migration Act. In my view, both of those submissions are correct.

  6. The finding about the Applicant parents was not given as a reason for affirming the decision by the Tribunal, which would, therefore, not bring about the operation of sub-s.424A(1), but that in any event the republication of this evidence to the Tribunal during the hearings places this information squarely within the ambit of paragraph (b) of sub-s.424A(3). I am satisfied that there is no breach of s.424A of the Migration Act.

  7. The other claim made about those factual findings by the Tribunal made by the Applicant at the hearing before me relates to his belief that the Tribunal did not treat him fairly during the hearing because the Tribunal did not accept that evidence. Whilst the subject matter is related, it is, perhaps, a different point as the Applicant is canvassing merits of the Tribunal's factual findings and, as I explained to the Applicant, this Court does not conduct merits review when conducting judicial hearings. 

  8. If the claim relates to an allegation of bias, it is not a proof of bias on the part of the Tribunal if the Tribunal does not accept the Applicant's factual evidence. The Full Court of the Federal Court has heard in NADH v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 328 that an unfavourable outcome from the Applicant's point of view does not establish bias on the part of the Tribunal.

  9. The Applicant's second ground in his amended application is that the Tribunal constructively failed to exercise jurisdiction by failing to deal with the integers of the Applicant's claim.  The particulars of that are:  (a) that the Applicant claimed in his original application to fear persecution by reason of his association with his parents who preached at an underground church, but as their influence was so widely spread that they were given close attention by the Security Bureau because they thought the Applicant's parents were organising a group of people against the government.

  10. The Applicant claims that the Tribunal's findings at page 112 of the Court Book that the Applicant does not face a real chance of persecution for reasons of his religion or imputed to religion if he returns to China, does not deal with that claim.  The First Respondent submits that the Applicant's claim about his father and what he said happened to his father arose because the father was the leader of an underground church. 

  11. In order for there to be an obligation on the Tribunal to consider a distinct claim of imputed political opinion this claim must squarely arise on the evidence.  Ms McWilliam submits although this claim may be broadly characterised as against the Chinese government because it was not an official church, it is still a claim based on the father's religious practice and not a separate claim of anti revolutionary activity. 

  12. The entirety of the Applicant's evidence went to proving his Christian and catholic beliefs, not to proving his anti government stance, imputed or otherwise. There was no distinct claim in that respect and no obligation on the Tribunal to address it.  I accept that submission and I am satisfied that the second ground has not been made out.

  13. The third ground which appears in the Applicant's amended application and was also referred to the in Applicant's oral submissions relates to his claim that the Tribunal failed to comply with s.424 by insuring that the invitation to a hearing is real and meaningful invitation.  The Applicant claims that the hearing miscarried because of the failure by the interpreter at the hearing to interpret matters relating to his catholic faith. 

  14. The particulars given by the Applicant are these:

    (a)the interpreter provided for the purposes of the Tribunal hearing could not translate my answers about Catholicism correctly; 

    (b)the Tribunal compounded the difficulties by suggesting at the hearing that my answers demonstrated a sound knowledge of Catholicism;

    (c)It was only after the hearing and when notified of the Tribunal's decision that I realised that the Tribunal considered my knowledge of the catholic religion as superficial. 

  15. The Applicant told the Court that there were a lot of interpreting errors at the hearing.  He said that the interpreter had a lack of knowledge of Catholicism and admitted that. He said that due to the lack of knowledge of the part of the interpreter the Tribunal Member got the impression that the Applicant's knowledge of Catholicism was superficial. 

  16. The Applicant said that this admission by the interpreter can be found in the Tribunal's decision record.  There is no such information in the Tribunal's decision record. For the Respondent Minister, Ms McWilliam, of counsel submitted that the law in relation to the competency of interpreters is well established.  She referred the Court to a number of decisions setting out the decision as far as this is concerned. They are Pereira v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; Long v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 183; Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555; Soltanyzand v Minister for Immigration & Multicultural Affairs [2000] FCA 917 and Arif v Minister for Immigration & Multicultural Affairs [2002] FCA 1053.

  17. She submits, correctly, that the question is whether the evidence before the Court discloses such incompetence or other defective interpretation that the Applicant can be said to have been effectively prevented from giving his evidence in relation to a matter of significance for his claim or the Tribunal's decision. 

  18. The question is whether the evidence before the Court disclosed such incompetence or other defective interpretation that the Applicant can be said to have been effectively prevented from giving his evidence in relation to a matter of significance for his claim for the Tribunal's decision.  That is, indeed, the question that must be decided. Counsel for the Respondent pointed out that there is no evidence that there was any difficulty with the interpretation such as a transcript. 

  19. The Applicant's migration agent attended both hearings and made no complaint on the Applicant's behalf.  At the first hearing the Applicant's advisors stated to the Tribunal that the Applicant's difficulty in explaining religious concepts was due to his educational background and not his difficulty with the interpreter.  I accept the fact that the Applicant's complaint is about the interpreter in this hearing and not the interpreter in the first hearing. 

  20. Nevertheless, it is significant that the Applicant's migration agent attended the Tribunal hearing.  The Applicant told the Court today that his migration agent speaks both Chinese and English.  If there were errors in the translation from Chinese into English or English into Chinese by the interpreter at the Tribunal hearing then the person who would be in the best position to realise that would have to be the Applicant's migration agent. Apart from the interpreter, there is no evidence that anyone who could speak both English and Chinese was present at the hearing.

  21. There is no evidence from the Applicant's migration agent in the form of an affidavit or in any other way that indicates that there is any problem with the interpreter.  It is a matter that was referred to by the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298 that the unexplained failure by a party to call a witness or to tender documents and other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case.

  22. Despite being questioned by the Court on this point, the Applicant gave no explanation as to why there was no affidavit from his migration agent a person present at the hearing who can speak both Chinese and English about any difficulty in interpretation.  The inference that I draw is that evidence from the Migration Agent would not have assisted the applicant's case.  In my view, that the third ground has not been made out.  The Applicant is not legally represented and my reading of the Tribunal decision does not show any arguably case of any jurisdictional error. 

  23. It is well established that the Tribunal can rely on evidence given to an earlier Tribunal hearing as well as evidence given to the later Tribunal hearing. The Tribunal did not accept the Applicant's evidence on several important points in his case. In my view, on the evidence before the Tribunal, it was open to the Tribunal to arrive at that conclusion.  The Applicant told the Court that he has been in Australia for over 10 years and he is separated from his wife and family.  He does not speak English and has lived in a situation of loneliness for a long period of time. 

  24. He told the Court that this must be proof that he was staying away from China because of his fear of persecution. Whilst it would, indeed, be lonely and unhappy for a person to be away from their native land and away from friends and family in a country whose language they did not speak, as I explained to the Applicant that is not a matter that the Court can take into account in considering his claim. 

  25. There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined in sub-section 474(2) of the Migration Act. As a result under sub-s.474(1) of the Act, the decision is not subject to certiorari, mandamus, or prohibition. It follows that the application must be dismissed. I will hear you on costs.

  26. There is an application for costs on behalf of the First Respondent Minister. The amount sought is the sum of $5,000.00 which is within the scale envisaged by the Federal Magistrates Court Rules. The Applicant says that he is unemployed and, therefore, does not have the means to meet that order. I do not doubt this but that is not a reason not to make a costs order. It is, however, a matter to be taken into account when deciding whether to allow time to pay. I propose to allow six months to pay the costs.

  27. There is also sought an order changing the name of the First Respondent to the Minister for Immigration and Citizenship. I note that the amended application refers to the Minister by the title before last. The order may be a formality, but I order that the title of the First Respondent is changed to Minister for Immigration and Citizenship.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee 

Date:  2 March 2007

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