SZJTP v Minister for Immigration
[2007] FMCA 518
•11 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTP v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 518 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – real and meaningful hearing – quality of translations at Tribunal hearing – bias. |
| Migration Act 1958, ss.36, 65, 91X, 424A, 425 |
| Antipovav Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 Re Ruddock and Another; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZJTP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3515 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 April 2007 |
| Date of Last Submission: | 11 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. V. McWilliam |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the amount of $5,000.
In the court record, the name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3515 of 2006
| SZJTP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 28 November 2006 the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated
24 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”), dated 26 June 2006, refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a 28 year old male national of China, born in China on 31 March 1978. He completed Primary and High school in China and attended Yanji Normal College from September 1997 to July 2000, and studied in Japan between April 2001 and April 2006. (Court Book (“CB”) page 71).
The applicant claims to have been persecuted and to fear future persecution in China because of his political opinions.
The Tribunal observed that the applicant obtained an Australian visitor visa granted in Japan on 7 April 2006, that he returned to China from Japan on 11 April 2006 and arrived in Australia on 22 April 2006.
(CB 71).
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-6 of the Tribunal’s decision (CB 71-73). Relevantly, they are in summary:
a)
the applicant claims that he was “seriously persecuted by the Chinese government because I held the different political opinion and continually issued different voice in the internet”
(CB 71). He claims that he had to escape from China to Australia to avoid further mistreatment;
b)he went to Japan as a student in 2001 where he discovered “a brand new internet world different from China … I was pleased to live in a transparent world without information block … I began to collect information that was blocked in China … and issued them in some hot BBS [Bulletin Board Service] in China with a fake name” (CB 71);
c)from August 2005 the applicant wrote articles stating his own political opinions and claims that “the internet police in China began to focus on him” but because he lived overseas they were unable to identify him (CB 71). It should be observed at this point that in his evidence at the Tribunal hearing the applicant says that he began writing political articles in February 2005;
d)on 11 April 2006 he returned to China to visit his parents. At his parents’ home, he “noticed several strange people always walked around my home and the director of the residence management committee came to my home and questioned me about my living in Japan” (CB 71);
e)the applicant claims that a friend of his father told the applicant’s father that the applicant had been monitored since he arrived back in China and the applicant felt as though he had to “escape before the police caught me” (CB 72). At the Tribunal hearing the applicant said that he left China for Australia because he thought he was going to be arrested. (CB 73).
f)The applicant states that he only stayed a week in China and left for Australia, rather than Japan, because Japan “did not accept refugee that suffered from the persecution”. (CB 71-72).
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)there was no probative evidence brought forward by the applicant in relation to the anti-government material he allegedly posted on the internet. The Tribunal’s comment was:
The applicant has not produced … a single example of the kind of material that he claims he sent from Japan and posted on electronic Bulletin Boards in China. At the hearing the applicant was unable to describe the content of any anti-government or political article that he had written, except in the most general terms: ‘about human rights and democracy’. It should be born [sic] in mind that this is a highly educated young man who might be expected to have some recall about his first publications. The Tribunal does not accept that the applicant has written anti-government articles or posted anti-government material on the internet. (CB 74);
b)although the applicant made no claims to being a member of Falun Gong he said that the Chinese authorities believed him to be a Falun Gong practitioner. However, as the Tribunal did not accept that the applicant posted anti-government material, including comments on Falun Gong, on the internet, it did not accept that the Chinese authorities believe him to be a Falun Gong practitioner;
c)there was insufficient evidence before the Tribunal as to the alleged “mistreatment” the applicant had suffered in the past, the Tribunal noting:
i)in respect of his returns to China on occasions prior to his last return in April 2006, the applicant made no mention of going through customs, being asked questions or having his luggage checked;
ii)on his return in April 2006 the applicant says he was queried about his activities in Japan, his baggage searched and some CDs and DVDs impounded but although his Australian visa was by then in his passport the authorities did nothing to prevent his movements and he was only subject to normal customs and immigration procedures;
iii)the Chinese authorities made no move to prevent the free movement of the applicant in his own country or when he decided to leave it;
d)the Tribunal did not accept that the applicant had ever posted anti-government articles and materials on the internet or that his home was placed under surveillance because of his political activities; and
e)the Tribunal did not accept that the applicant would publish anti-government materials or otherwise engage in anti-government political activity in the foreseeable future.
In essence the Tribunal found:
There is no evidence brought forward by the applicant that he was “seriously persecuted”. There is no probative evidence that he ventilated any political views on the Internet, and he has not specified any “mistreatment” which he needed to leave China to avoid more of. There is insufficient evidence before the Tribunal for it to be satisfied that the applicant has been seriously harmed in the past. The Tribunal does not accept that the applicant faces a real chance of serious harm in the reasonably foreseeable future. (CB 75).
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal breached its obligations under s.424A of the Act; and
b)the Tribunal’s findings are ill-founded and erroneous.
In his written submissions the applicant raises additional issues, namely:
a)the Tribunal ignored some material;
b)inconsistencies compromised the applicant's credibility as a witness;
c)the Tribunal found that some of the applicant's claims were implausible because the applicant relied on inaccurate and incomplete information provided by the applicant's migration agent which was not put to the applicant for his comment;
d)the applicant was interviewed by the Tribunal “shortly” and required to answer questions with “yes” or “no” answers; and
e)the information in the applicant's statement (which accompanied his protection visa application form) was prepared by his agent and was inaccurate and incomplete and the applicant has other matters to put in support of his application including his past experiences in China relating to his religious activities and in Australia.
In his oral submissions, the applicant raised further issues, namely:
a)during the hearing the Tribunal did not ask the applicant questions about matters such as the applicant's family background, his employment and his activities in Australia;
b)the Tribunal did not give the applicant an opportunity to explain his claims; and
c)the interpreter services at the hearing were poor and the Tribunal evidenced racial discrimination.
Dealing with these grounds in turn:
The Tribunal breached its obligations under Section.424A of the Act
The applicant's claims were essentially based on what he said were his political writings both of a general nature and in respect of Falun Gong. He gave evidence in relation to these at the Tribunal hearing. The applicant also gave evidence as to the treatment he received at the airport on his return to China from Japan.
The Tribunal's finding was based on an absence of evidence that the applicant had posted material on the internet and the Tribunal's conclusions regarding the treatment the applicant received at the airport. The Tribunal was fortified in its views that the applicant did not have a well-founded fear of persecution because it had emerged from his evidence that he had travelled on his own passport and was able to leave China without let or hindrance. It is important to keep in mind that the Tribunal's findings were based on the evidence which the applicant gave at the hearing and the conclusions which the Tribunal drew from that evidence. The conclusion which the Tribunal drew was that it was unable to be satisfied that the applicant had a well-founded fear of persecution.
To the extent that the Tribunal relied on the fact that the applicant travelled on his own passport, and if it is alleged that this information was not provided to the Tribunal at the hearing and this falls within the exclusion found in s.424A(3)(b), it is nevertheless a conclusion which, on the other evidence given by the applicant at the Tribunal hearing was open to the Tribunal. In this regard it should be noted that the applicant discussed his passport, his travels to Japan, and his Australian visa in his evidence at the Tribunal hearing.
In his written submissions, the applicant has made an additional assertion in relation to s.424A in the following terms:
The second respondent failed to comply with s.424A(1) of the Migration Act imposes a duty on the Tribunal to offer applicant the chance to comment in writing, after the hearing, on information relevant to a potential adverse decision on review …
The applicant misunderstands the import of s.424A and although should information activating the operation of the section emerge during the course of the hearing the Tribunal ought, after a hearing, supply such information to the applicant for comment, the section does not provide that there ought to be a notice after every hearing. The operation of the section depends on “information” which falls within the terms of the section. In the circumstances of this application there was no such information.
For these reasons the Tribunal was not in breach of its obligations under s.424A of the Act.
The Tribunal’s findings are ill-founded and erroneous.
These proceedings for judicial review are concerned with the process at the Tribunal, not with the outcome reached by the Tribunal. An erroneous finding of fact by the Tribunal is not subject to review in proceedings such as these unless the fact in question is a jurisdictional fact. The applicant has not asserted that there has been any error of this nature and no jurisdictional error is demonstrated in respect of this asserted ground of review.
The Tribunal ignored material
The applicant has not identified, either in his written submissions or in any substantive way in his oral submissions to the Court, what material it is asserted was ignored by the Tribunal. The applicant asserted at the hearing that the Tribunal did not consider his past but the decision record of the Tribunal clearly demonstrates that the Tribunal considered the material that was before it. Consequently this asserted ground of review is not made out.
Inconsistencies compromising credibility
In his written submissions, the applicant asserts that according to the Tribunal inconsistencies compromised his credibility as a witness before it. That is not what the Tribunal found. The Tribunal's finding does not refer to inconsistencies in the applicant's evidence, rather it refers to lack of evidentiary support provided by the applicant for his various allegations. Certainly the applicant's version of events was not accepted by the Tribunal but this arises out of a lack of evidentiary support rather than inconsistencies in his versions of events.
The Tribunal found that some of the applicant's claims were implausible because the Tribunal relied on inaccurate and incomplete information provided by the applicant's migration agent which was not put to the applicant for his comment.
There was no finding by the Tribunal that the applicant's experiences were implausible. As has already been made clear in these reasons, the Tribunal's decision arose out of the fact that there was insufficient material for the Tribunal to be satisfied that the applicant met the criteria for a protection visa. Further, the matters on which the Tribunal based its decision were not what the applicant's agent might have put in the applicant's statement or his protection visa application form, notwithstanding that these documents were referred to as part of the background to its decision in the Tribunal's decision record. Further, the applicant has not identified what information was incorrect or incomplete.
Consequently this asserted ground of review is not made out.
The Tribunal interviewed the applicant “shortly”
This purported ground of review appears to assert that the applicant was not afforded a real and meaningful hearing before the Tribunal and that there has been a breach of s.425 of the Act. The applicant has alleged that he was prevented from telling his true story and was required to give “yes” or “no” answers to questions posed by the Tribunal. Were it the case that the applicant was truly prevented from giving his evidence or making submissions on issues arising in relation to the decision under review then authorities such as Antipovav Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 would indicate jurisdictional error.
However, the discussion by the Tribunal of the evidence given by the applicant at the hearing before it gives no reason to believe that the applicant was denied a proper hearing or that the invitation to the hearing was anything other than meaningful. Significantly, as the first respondent has pointed out, notwithstanding that by order of the Court on 18 December 2006 the applicant was directed to file and serve any affidavit containing additional evidence relied upon, including a transcript of a Tribunal hearing, by 12 March 2007, no transcript of the course of evidence before the Tribunal has been submitted by the applicant in support of his allegation that he was interviewed shortly and required to give “yes” or “no” answers.
There being no evidence before the Court in relation to the conduct of the hearing before the Tribunal, other than what appears in the Tribunal's decision record, this ground is not made out.
The information in the applicant's statement (which accompanied his protection visa application form) was prepared by his agent and was inaccurate and incomplete and the applicant has other matters to put in support of his application including his past experiences in China relating to his religious activities and in Australia
As already discussed in relation to the course of the hearing before the Tribunal, the Tribunal's decision record indicates that there was free dialogue between the Tribunal member and the applicant. There is no evidence that the applicant was prevented at that time from producing any additional evidence or from making any further claims in relation to his claimed refugee status. Any deficiencies in documents prepared by his agent could have, and should have, been remedied at that time.
Further, no evidence has been adduced in the proceedings in this Court as to what the applicant's past experiences in China relating to his religious activities or his activities in Australia might have been.
To the extent that the submissions express what the applicant would wish to say to a future Tribunal hearing were he successful in these proceedings, that is not a matter of which this Court can take account.
Consequently this ground is not made out.
During the hearing the Tribunal did not ask the applicant questions about matters such as the applicant's family background, his employment and his activities in Australia
The Tribunal has no duty to make inquiries, the High Court has said. Although the Act gives the Tribunal power to make inquiries it is not obligated to exercise that power. Significantly in respect of what the applicant has said today, in Re Ruddock and Another;
Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 Gummow and Hayne JJ at 451 [58], with whom Gleeson CJ agreed at 438 [1], said:The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
It is for the applicant to make out his case. If the applicant had wished to put these matters before the Tribunal he should have done so. As Gummow and Hayne JJ said in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 [187]:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well‑founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Consequently no jurisdictional error is demonstrated in relation to this purported ground of review.
The member did not give the applicant an opportunity to explain his claims
This assertion echoes the earlier one concerning the hearing at the Tribunal. For the reasons already given in relation to that ground, particularly there being no evidence and no transcript to support the assertion, this ground is not made out.
Interpreter services poor
Today the applicant has said for the first time in these proceedings that the translation services available to him at the Tribunal hearing were inadequate, that he could not understand the questions completely, and that the interpreter had a very strong accent such that the applicant could not understand his Mandarin. The Tribunal recorded that the applicant asserted at the hearing to have had some issue with the interpreter. What the Tribunal said in relation to that issue was this:
In his application for review and in the Response to Hearing Invitation form, the applicant stated that he required a Mandarin interpreter. The Tribunal engaged the services of a Mandarin interpreter qualified at NAATI level 3. At the commencement of the hearing the applicant complained that he could not understand the interpreter, although the interpreter had no difficulty in understanding the applicant. The applicant conveyed that he wanted an interpreter from Yanji, a province in Northern China. The Tribunal adjourned the hearing for 1½ hours to obtain the other interpreter, but was advised by the interpreter service that it would be unable to obtain a Mandarin speaking interpreter from that province because, although Mandarin was spoken in the province the interpreter service did not have a record of provinces from which their interpreters came. When the hearing resumed the applicant was informed of this. He asked for an adjournment and was informed that, if he felt unable to continue to give evidence at this hearing, the Tribunal would allow him 14 days in which to make any additional submissions in writing. At this point the applicant said there was no need for an adjournment if the interpreter "spoke slowly". From this point in proceedings the applicant had no noticeable difficulty in understanding the interpreter. (CB 72).
That passage from the Tribunal's decision record indicates two things. The first of these is that if the applicant had real difficulties with the interpreter he was at liberty to take a course other than to proceed with the hearing before the Tribunal on that day. He declined that option which was made available to him by the Tribunal member. The second matter which arises from that quoted passage is that the Tribunal member observed the applicant having no noticeable difficulty in understanding the interpreter.
Had there been a problem in the interpretation or translation at the Tribunal hearing which the applicant wished this Court to understand and consider, he should have had a transcript prepared and/or provided expert evidence on the translations provided by the interpreter at the Tribunal hearing. In the absence of such evidence there is nothing before the Court to substantiate the assertion made by the applicant in relation to translation services at the Tribunal hearing and this ground is not made out.
Racial discrimination
In his submissions to the Court the applicant has said that at the conclusion of the Tribunal hearing the Tribunal member said words to the following effect, “You made great progress in your Chinese”. The applicant has complained that this demonstrated disrespect and suggests racial discrimination. Whether the applicant is merely saying that the Tribunal member was rude to him or whether he says that this evidences a bias against him is unclear. However, on the basis that it is an allegation of bias it is appropriate to observe that allegations of this sort which are very serious can only be made out with clear and cogent evidence.
There is no such evidence in this case and if what the applicant says was said, it would have appeared in a transcript should one have been obtained by him. Absent clear and cogent evidence of bias whether actual or apprehended, no finding to that effect can be made by this Court, and this asserted ground of review is not made out.
At the end of the day it is for the applicant to show that he is entitled to a visa. Section 65 of the Act provides that the Minister is to grant a visa if he is satisfied that the criteria for it have been met but is to refuse to grant it if those criteria are not made out. In the context of protection visas, s.36 provides a criterion and that is that the applicant for the visa is:
A non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
As has already been made clear in these reasons, the Tribunal's conclusion was grounded on the lack of such evidence before it as was sufficient that it could be satisfied that the applicant met the relevant criterion.
Conclusion
No jurisdictional error on the part of the Tribunal having been demonstrated, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 11 April 2007
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