SZJQH v Minister for Immigration

[2007] FMCA 969

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 969

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant claiming a mental disability which the Tribunal should have taken into account before making adverse credibility findings – no evidence that the Tribunal was put on notice of the alleged disability – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

Applicant: SZJQH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3239 of 2006

Judgment of: Driver FM

Hearing date: 21 June 2007

Delivered at: Sydney

Delivered on: 21 June 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Palmer
Sparke Helmore

ORDERS

1. The Court directs that the name of the applicant is not to appear on the transcript of proceedings.

2. The Court directs that the title of the first respondent be amended to the Minister for Immigration and Citizenship.

3. The application is dismissed.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3239 of 2006

SZJQH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 14 September 2006 and was handed down on 10 October 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of religious persecution.  The background to the applicant’s protection visa claims and the Tribunal decision is set out in the Minister’s outline of submissions filed on 10 April 2007.  I adopt as background for the purposes of this judgment paragraphs 3 to 8 of those written submissions:

   In two statements accompanying his protection visa application, the applicant, a citizen of the People’s Republic of China (PRC), claimed to fear persecution from the authorities on the basis of religion.  The applicant claims that he was a Christian and attended religious gatherings at a ‘local meeting place’. In June 2002 the police raided the meeting, the applicant was assaulted and detained for three months. In 2005 the meeting was again raided by the police however the applicant managed to escape (court book (CB) 27-28). 

   On 16 August 2006, the applicant attended a hearing before the Tribunal where he gave oral evidence.

   The Tribunal considered the applicant’s claims in his protection visa application and oral evidence given at the hearing and found that there were many inconsistencies which cast doubt on his claims (CB 94).

   On 17 August 2006 the Tribunal sent a letter to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) outlining the inconsistencies in the applicant’s evidence and why that information was relevant to the review (s.424A(1)(b)) (CB 71 -73). The applicant responded to the letter on 8 September 2006 (CB 75-77) and made submissions, however, the Tribunal was not persuaded by his response.

   The Tribunal made adverse credibility findings and was not satisfied that the applicant’s claims to be a Christian were true.  It found his responses at the hearing were implausible given the applicant’s inability to answer questions relating to the basic tenets of Christianity, including the significance of Christmas (CB 94.2).

   Consequently, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution because of his religion or any other Convention reason now or in the reasonably foreseeable future (CB 95.4).

2. These proceedings began with a show cause application filed on 6 November 2006.  That application asserted actual notification of the Tribunal decision on 10 October 2006.  On that basis I find that the application was filed within time.  That application was supported by a short affidavit filed on the same day which annexed a copy of the Tribunal decision.  The affidavit refers briefly to the applicant’s Christian faith and his persecution claims.  I received the affidavit as a submission.  To the extent that the original application has any continuing relevance, the Minister’s written submissions adequately deal with it.  I agree with the Minister’s submissions in relation to the original application. 

3. However, the applicant now relies upon an amended application filed on 23 May 2007.  That application attaches a handwritten document which sets out the grounds on which the applicant now relies.  Those grounds are:

   (1) The applicant sustained a head injury at the age of 5 years.  Resulting injury has caused slurred speech and retarded mental development.  The Tribunal failed to investigate this.

   (2) It is obvious from listening to the tape recording of the Tribunal that the interpreter was unable to understand the applicant.  Some of the translations are incorrect.  Therefore it would be unjust to rely upon this evidence.

   (3)     Due to the applicant’s inability to learn, he struggles to write and read Chinese Mandarin.  Other people have had to write in Mandarin for him.  The Tribunal failed to give enough weight to his only having attended school for 7 years from age 7- 14.

4. The only evidence I have before me is that contained in the court book filed on 6 December 2006.  On 6 December 2006 a registrar made orders in this matter giving the applicant the opportunity to file additional evidence, including a transcript of the Tribunal hearing, but he has not done so. 

5. The applicant presented to me in court today three documents that he wanted me to look at.  The first is an English typewritten translation of a handwritten Chinese document which purports to certify the baptism of the applicant, his religious belief and his persecution in China.  The document is dated 8 May 2007.  The second document is an English translation of what purports to be a Chinese arrest and detention warrant.  The English translation is dated 7 June 2007.  The third document is a letter to the Federal Court signed by a number of persons who attest to the applicant’s religious life in Sydney.  The signatories support the applicant’s efforts to remain in Australia.  The letter is dated 28 October 2006.  None of these documents could have been before the Tribunal because they all postdate the decision.  In addition, they have no bearing upon the grounds of review now advanced by the applicant.  With that in mind I declined to receive the documents as evidence.  I have returned those documents to the applicant.

6. I asked the applicant why he had not prepared a transcript of the Tribunal hearing.  He said that he had been unable to.  In the light of the second ground in the amended application I had arranged for a cassette player to be available in court so that the tape recording of the Tribunal hearing could be listened to.  However, the applicant told me that he had not brought the tape recording with him.  I pointed out to the applicant that he had not produced any evidence to prove his asserted disability, let alone the asserted impact that it had upon the Tribunal hearing.  There is no medical evidence available to support the contention that the applicant suffers from retarded mental development. 

7. The applicant spoke in court today in a halting manner and with a pronounced speech impediment. However, I have no idea whether he made the same impression on the Tribunal as he made upon me because I have not had the opportunity to listen to the audio tape of the Tribunal hearing. If the applicant’s assertions about his disability are true it is possible that it may have impacted upon the hearing opportunity sufficient to raise a serious question whether the Tribunal complied with s.425 of the Migration Act. However, there is no evidence to support the applicant’s contentions. The court book provides no support at all. On page 17 of the court book in the applicant’s protection visa application he stated that he attended school for nine years. In his amended application he asserts he only attended school for seven years. There is nothing in the court book to indicate that the applicant at any stage drew to the attention of either the Minister’s Department or the Tribunal any mental or physical disability. The applicant certainly had several opportunities to do so.

8. The Tribunal hearing invitation form appears on page 60 of the court book.  Question 2(e) on that form asked the applicant whether he had any special needs for the hearing.  This would have been an ideal opportunity for the applicant to draw attention to his asserted disability.  However, that part of the form has been left blank.  Secondly, after the hearing the Tribunal wrote to the applicant on 17 August 2006 inviting comment on adverse information in the form of apparent inconsistencies between what he told the Minister’s Department and what he told the Tribunal.  The applicant signed a typewritten statement in response to that invitation to comment on 6 August 2006.  It appears on pages 76 and 77 of the court book.  The statement was sent to the Tribunal by facsimile on 8 September 2006 by the applicant’s migration agent who had assisted the applicant both before the Department and before the Tribunal.  Neither the applicant nor his agent said one word about any disability or any interpretation problems at the hearing.  If the applicant’s assertions in his amended application are true that is simply incredible.  It would have been a gross dereliction of duty by the migration agent not to point out to the Tribunal the serious disability that the applicant now claims.

9. The record of the Tribunal decision at pages 88 to 93 in the court book deals with what occurred at the Tribunal hearing.  On page 89 of the court book at about point 4 the presiding member records asking the applicant about his passport and records that his response was “somewhat confused”.  The presiding member does not record what the cause of the applicant’s confusion may have been.  On page 91 of the court book at about point 3 the presiding member records asking the applicant several times who had betrayed Jesus Christ, and the applicant’s initial inability to answer.  The presiding members says:

   … we agreed that the Tribunal would adjourn for a few minutes so that he could consider whether to make any further comment on this point.  When he returned to the hearing room he said that he now recalled that Jesus Christ had been persecuted and betrayed by Judas who was one of his disciples.  I asked him how he had been able to recall this information after the break but had been unable to recall it before the break.  He responded that he was nervous. 

10. There is no mention in the presiding member’s record of the Tribunal hearing of any apparent interpretation difficulties or of any apparent disability suffered by the applicant.  If the applicant had displayed at the Tribunal hearing the serious disability that he now asserts I would have expected the presiding member to say something about it.

11. The amended application fails because of a lack of supporting evidence.  No jurisdictional error is established by the amended application.  Neither is any jurisdictional error apparent to me from my own reading of the material.  It follows that the decision of the Tribunal is a privative clause decision and the application must be dismissed.  I so order. 

12. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $3,600.  Scale costs would be $5,000.  The applicant did not wish to be heard on costs.  I accept that costs of not less than $3,600 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $3,600.  I will direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  26 June 2007