SZJWY v Minister for Immigration

[2007] FMCA 1243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWY v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1243

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant was deprived from his right to appear by reason of inadequate translation.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424; 424A; 424A(1); 424A(3)(a); 425; 474; pt.7 div4; pt.8 div.2

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]
NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115]
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

Applicant: SZJWY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3803 of 2006

Judgment of: Emmett FM

Hearing date: 18 July 2007

Date of last submission: 1 August 2007

Delivered at: Sydney

Delivered on: 1 August 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent: Ms S. A. Sirtes

Solicitors for the Respondent: Ms M. Mafessanti, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3803 of 2006

SZJWY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 November 2006 and handed down on

   
   

   28 November 2006.

2. The applicant is a citizen of the People’s Republic of China (“the PRC”) and arrived in Australia on 9 August 1997 (“the Applicant”).

3. On 4 September 1997, the Applicant lodged an application for a protection (Class XA) visa with the then Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

4. The Applicant provided a statement in support of his protection visa application in which he claimed a fear of persecution in the PRC because of his political opinion. The Applicant claimed that he was the son of Korean parents and that his father had been persecuted for criticising the “Great Culture Revolution”.

5. The Applicant claimed that he joined a social organisation called “Wen-Qing Committee” as a result of his family influence. The Applicant claimed that the purpose of this committee was “to disclose the corruption and bribery activities of government officers, and wake up the Chinese who still believed that the Communist Party was their right head.” The Applicant claimed that the Wen-Qing Committee’s activities came to the attention of the local government and on 15 May 1997, five of the key organisers of the Wen-Qing Committee were arrested and tortured. The Applicant claimed that the Wen-Qing Committee was then defined as a “Counter Revolutionary Organization” and most of the members were arrested. The Applicant that claimed that he was part of a group warned by the Public Security Bureau (“the PSB”) to give up support for that organisation.

6. On 26 September 1997, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Delegate could find no evidence that the Wen-Qing Committee had attracted notice from the authorities and that it was not satisfied that the Applicant had organised large scale political activities and therefore had a higher political profile. The Delegate found that “as the applicant does not have a high profile, and the activities he claims to be a leader of is not recognised, he should not be subject to strong punitive action.”

7. The Applicant sought review of the Delegate’s decision by the Refugee Review Tribunal and on 1 February 1999, the Refugee Review Tribunal handed down its decision affirming the decision under review.

8. On 18 July 2006, the Applicant was renotified of the Delegate’s decision in which he was informed that he had 28 days from the date on which he received the letter in which to make an application to the Tribunal for review of the Delegate’s decision.

The Tribunal hearing

1. On 21 August 2006, the Applicant lodged an application for review with the Tribunal. The Applicant provided no further information to the Tribunal about his claims. On 9 October 2006, the Tribunal wrote to the Applicant informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone and invited the Applicant to come to a hearing on 6 November 2006. The letter also invited the Applicant to send any further material that he wished the Tribunal to consider in support of his application.

2. The Tribunal noted that it had regard to the Department’s file and the material referred to in the Delegate’s decision and other material available to it from a range of sources. The Tribunal noted with particularity the claims made by the Applicant in support of his protection visa application.

3. The Tribunal noted that the Applicant did not provide any further comments to the Tribunal in support of his application although provided a copy of certificate of baptism issued by the Korean Martyrs and Saint Stanislaus Catholic Church on 31 July 2006. The certificate stated that the Applicant was baptised on 1 September 2001. The Tribunal noted that the Applicant also provided a copy of his passport.

4. On 9 October 2006, the Tribunal wrote to the Applicant pursuant to s.424 of the Act inviting the Applicant to provide any further evidence or claims that he wished the Tribunal to consider as more than 9 years had passed since the lodging of his protection visa application. The Tribunal noted that the Applicant did not provide any further written evidence or claims to the Tribunal prior to the hearing. However, the Applicant did provide a photograph of the Applicant with a group of people in what the Tribunal found to be a religious surround. The Applicant also provided a statement from Father Pak of the Korean Martyrs and Saint Stanislaus Catholic Church indicating that the Applicant attended Sunday mass weekly since he was baptised and was “an enthusiastic and faithful practitioner who has demonstrated his faith and loyalty to the community by active participation in pastoral work.”

5. The Applicant appeared before the Tribunal on 16 November 2006, at which he gave oral evidence.

6. The Tribunal noted that, when it asked the Applicant what he feared and why he considered himself to be a refugee under the Convention, the Applicant stated that he feared persecution by reason of his new found Catholic religion.

7. The Applicant stated that he started going to church in January 2001 and studied the principles of his religion for 10 months before being baptised on 1 September 2001. The Tribunal noted that the Applicant stated that he had not been interested in religion or attended church in the PRC.

8. The Applicant claimed that, if he were to return to the PRC, he would not be able to attend a “normal church” in the PRC but would have to attend an underground church. The Tribunal noted that the Applicant also claimed that if he were to return to the PRC he would not attend a registered church but would join an underground church because the registered church is “not related to the religion that he has.” The Tribunal noted that it asked the Applicant how an underground church in the PRC would be different to a registered church in the PRC and noted the Applicant’s response that the underground church was considered to oppose the government and he was otherwise “not sure about the church in China because he had lived in Australia for a long time, but he heard about the persecution in Pok Kwonsung and Chun Jin on religious grounds.” The Applicant stated that in Australia Ministers of the church were appointed by the Vatican whereas in the PRC they were appointed by the government and that the churches believe in the government and not in God.

9. The Tribunal noted that it asked the Applicant why he preferred the Catholic Church to the Protestant Church and noted the Applicant’s response that when he went to the Catholic Church “he was very comfortable and became calm, compared to the Protestant churches.” The Applicant claimed that he believed that God led him there.

10. The Applicant claimed that he attended church every Sunday and that when asked what his religion meant to him in his daily life he responded “that his mind became calm and psychologically he became more comfortable because the people’s minds are complex but after attending church his mind became calm.”

11. The Tribunal noted that it asked the Applicant about his basic beliefs and noted the Applicant’s response that it was “good to love neighbours and to help them, to do things for the society and for the good relationships between people.” The Tribunal noted that, when it asked the Applicant what were the main tenants of Christianity and the church, the Applicant responded that “broadly, it is to live smoothly with other people and to cooperate within the society.” The Tribunal noted that the Applicant claimed that Jesus Christ was the centre of his life and that in Sundays he spent the whole day in church.

12. The Tribunal noted that the Applicant claimed to celebrate Christmas Day and Resurrection Day and that the 1 January is celebrated because “holy Maria went to heaven”.

13. The Applicant also claimed that he was a member of Yeon Rung congregation which helped people whose family members had died. The Tribunal asked the Applicant what Father Pak had meant when he said that the Applicant actively participated in pastoral work and noted the Applicant’s response that he thought it was “to give love to the neighbours, because members of the Church are one family.”

14. The Tribunal noted that it also asked the Applicant about his original statement provided in support of his protection visa application and noted that the Applicant stated that his claim of being involved in anti-government activities and joining the Wen-Qing Committee were not true.

15. The Tribunal then explored with the Applicant various aspects of the Catholic faith, including asking the Applicant to describe his baptism ceremony in 2001 and about various well known stories from the bible.

16. The Tribunal noted that it asked the Applicant how the Tribunal could be certain that the Applicant had not joined the Catholic Church for the purpose of obtaining a protection visa in Australia. The Tribunal noted the Applicant’s response that he did not attend the church because he wanted to get a protection visa, rather, he started to attend the church and as a result “his life became more certain and his job too.”

17. The Applicant also said that he could not go back to the PRC because if he did he would be persecuted like his father.

18. The Tribunal noted that it also took evidence from Father Pak by telephone. The Tribunal noted that it asked Father Pak to describe the Applicant’s religious involvement and knowledge to which Father Pak responded “that the applicant is deeply following a path to God and prays hard. If goes back to China, the Chinese government is tough, there will be problems.” The Tribunal also noted that Father Pak stated that if the Applicant returned to the PRC he did not think the Applicant would continue his involvement with religion because people are jailed for that and persecuted.

19. The Tribunal then had regard to various independent information that it identified. The information addressed the treatment of ethnic Koreans in the PRC, the Cultural Revolution and religious freedom in the PRC.

20. In relation to the Applicant’s claim of a fear of persecution by reason of political opinion as made by the Applicant in his original statement in support of his protection visa application, the Tribunal found that, in accordance with the Applicant’s evidence, none of those claims were true and therefore there was no real chance of the Applicant being persecuted in the PRC for the reason of his political opinion now or in the reasonably foreseeable future.

21. In relation to the Applicant’s claim of a fear of persecution by reason of being related to his father, whom the Applicant claimed was persecuted during the Cultural Revolution, the Tribunal noted that independent evidence indicated that being in a relationship with someone who was persecuted during the Cultural Revolution no longer carries any stigma in the PRC.

22. Accordingly, the Tribunal found there was no real chance of the Applicant being persecuted in the PRC now or in the reasonably foreseeable future for reason of his relationship with his father.

23. In relation to the Applicant’s claim that he would be persecuted because of his Korean ethnicity, the Tribunal had regard to independent information which indicated that there is a significant Korean population in some provinces of the PRC including the province where the Applicant was born and had resided, and that Koreans “enjoy a degree of autonomy, freedom of religion and trade and have educational and business opportunities available to them.” The Tribunal acknowledged that, while the Applicant may have been bullied at school and may have been unable to join some clubs at school, the Tribunal was not satisfied that this was because of his ethnicity, nor that such conduct constituted serious harm within the meaning of s.91R of the Act.

24. Accordingly, the tribunal found that there is no real chance that the Applicant would be persecuted in the PRC now or in the reasonably foreseeable future by reason of his race or ethnicity.

25. In relation to the Applicant’s of a fear of persecution were he to return to the PRC by reason of his Catholic religion, the Tribunal found that the Applicant had “demonstrated a rudimentary understanding of the basic precepts of the Christian faith.” The Tribunal found that, whilst the Applicant displayed some knowledge of Christianity, such knowledge was limited and not consistent with the Applicant’s claim that he had undertaken 10 months of religious studies prior to baptism and that he attends church every Sunday. The Tribunal did not consider the Applicant’s lack of knowledge to be consistent with his claim of commitment to the Christian faith.

26. In evaluating the Applicant’s claims to be a regular attendant at church and to have undertaken a lengthy course of religious study, the Tribunal noted that it would have expected the Applicant to have had greater knowledge about the matters raised by the Tribunal with the Applicant relating to “basic precepts of the Christian faith”.

27. The Tribunal noted that, in making its findings, it had taken into account the Applicant’s level of education, ability to express himself and the circumstances in which he gave evidence to the Tribunal leading to a potential for “nervousness and inhibition”.

28. The Tribunal accepted the Applicant’s own evidence and the evidence of Father Pak with respect to the Applicant’s weekly attendances at the church and that the Applicant was baptised in 2001.

29. Further, the Tribunal did not consider that the Applicant engaged in the conduct for the purpose of strengthening his claim to be a refugee and accepted that the Applicant joined the church initially because he was curious and later because it gave him “tranquillity and opened his mind” and not for the reason of strengthening his claim to be a refugee.

30. However, the Tribunal was not satisfied that the Applicant’s involvement in religious activities in Australia demonstrated a “genuine commitment to the doctrines of the Church or his devotion to the Christian faith.”

31. The Tribunal did not accept that the Applicant’s conviction to the Christian faith was “of such nature that he would engage in religious worship if he returns to China now or in the reasonably foreseeable future.” The Tribunal was not satisfied that the Applicant would continue to engage in religious activities if he were to return to the PRC now or in the reasonably foreseeable future “because o f the Applicant’s apparent lack of commitment.”

32. Accordingly, the Tribunal found that, if the Applicant were to return to the PRC now or in the reasonably foreseeable future, there was not a real chance that he would face any harm because of his religion.

33. The Tribunal also found that, if the Applicant were to return to the PRC now or in the reasonably foreseeable future, there was not a real chance he would suffer serious harm for “the reason of his involvement with or practice of Catholicism or due to his involvement with an underground church in China or for any other Convention related reason.”

34. The Tribunal noted that it considered the Applicant’s claims individually and cumulatively and found that the Applicant did not have a well-founded fear of persecution within the meaning of the Convention. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. On 19 December 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The Applicant was unrepresented before this Court, although had the assistance of an interpreter. The grounds identified by the Applicant in his application filed on 19 December 2006, are as follows:

   “1. THE TRIBUNAL OFFICER DIDN’T GIVE ME A FAIR OPPORTUNITY TO DEFEND MY APPLICATION. HE JUST SIMPLY MADE A SUBJECTIVE DECISION WHICH WAS THEREFORE A WRONG ONE. WITH LOTS OF HIS GEUSSES AND IMAGINATION.

   2. THE TRIBUNAL FAILED TO GIVE ME A FAIR ASSESSMENT TO MY APPLICATION.

   3. LOTS OF TRANSLATIONS WERE WRONG. I DON’T KNOW THAT THE CASE OFFICER HAD HOLD WRONG UNDERSTANDING TO MY ANSWERS UNTIL I STUDIED THE DECISION LETTER.”

2. On 11 July 2007, the Applicant filed an amended application which is a document that appears to be more in the nature of particulars in support of the bare assertions contained in his claims.

Grounds 1 and 2

1. Grounds 1 and 2 are general assertions by the Applicant that the Tribunal did not give the Applicant a fair hearing or a fair opportunity to be heard. They are unsupported by particulars or evidence.

2. A fair reading of the Tribunal decision makes it clear that the Tribunal was careful to consider every possible Convention related claim on the material and evidence before it. The Tribunal noted with particularity the substance of each of the claims and the evidence given by the Applicant in support. The Tribunal also gave a detailed account of matters it explored with the Applicant at the hearing and concerns it raised with the Applicant about some of the claims made by the Applicant. The Tribunal also referred to independent country information to which it had regard in making its findings and reaching its conclusions.

3. The Tribunal’s obligations with respect to procedural fairness is encapsulated in s.422B of the Act which provides that Part 7 Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Compliance with Part 7 Division 4 centres around the Tribunal’s obligation to invite the Applicant to come to a hearing in accordance with s.425 of the Act and its obligations pursuant to s.424A of the Act to give certain adverse information to an applicant for comment. There is no assertion by the Applicant of a failure by the Tribunal to comply with s.425 of the Act and none is apparent on the face of the Tribunal’s decision record, including the conduct of its review.

Section 424A of the Act

1. In considering whether the Tribunal complied with its statutory obligations pursuant to s.424A(1) of the Act, the Tribunal is not required to put to the Applicant independent country information by reason of s.424A(3)(a) of the Act.

1. In relation to adverse information that may enliven s.424A(1) of the Act, although not raised by the Applicant, the First Respondent has addressed the evidence given by Father Pak. The Tribunal’s decision record made clear that it attempted to ring Father Pak during the hearing on the basis that the Applicant had provided a statement from Father Pak attesting to the Applicant’s commitment to Catholicism. In fact, the Tribunal was unable to reach Father Pak by telephone at the hearing. However, Father Pak returned the Tribunal’s telephone call after the conclusion of the hearing. The Tribunal recorded its conversation in detail in the “Claims and Evidence” section of its decision, including that Father Pak told the Tribunal that “if the applicant returns to China, he does not think that the applicant will continue his involvement with religion because people are jailed for that and persecuted”. The First Respondent has considered in written submissions whether this information enlivened the obligations of s.424A(1) of the Act. The First Respondent submitted that the information was not part of the Tribunal’s reason for any adverse finding and, in any event, the Tribunal’s adverse findings were based on the Applicant’s own evidence.

2. The Tribunal accepted Father Pak’s evidence as supportive of the Applicant’s claim of being a member of the Catholic Church, of his regular attendance at church and of his baptism in September 2001 including his undertaking of instruction in preparation for that baptism.

3. The only reference made by the Tribunal in the “Findings and Reasons” section of its decision to Father Pak’s evidence was where it stated that it “accepts the applicant’s own evidence and also the written and oral evidence of Father Pak with respect to the applicant’s weekly attendance at the church”.

4. A fair reading of the Tribunal’s decision makes it clear that it was the Applicant’s own evidence alone which caused the Tribunal to find that the Applicant lacked commitment to his Christian faith, thereby, causing the Tribunal not to be satisfied that the Applicant would continue to practise his religion if he was to return to the PRC in the reasonably foreseeable future. The Tribunal stated towards the end of its reasons the following:

   “However, for the reasons stated above, the Tribunal cannot be satisfied that the applicant’s involvement in religious activities in Australia signifies his genuine commitment to the doctrines of the Church or his devotion to the Christian faith”.

5. This finding follows the Tribunal’s exposition of the unsatisfactory aspects of the Applicant’s own evidence in relation to his knowledge, understanding and commitment to the Christian faith.

6. A fair reading of the Tribunal’s decision does not suggest that the Tribunal regarded anything said by Father Pak to be adverse to the Applicant. Rather, it was referring, in the “Claims and Evidence” section of its decision, to the totality of its conversation with Father Pak. Moreover, as stated above in these Reasons, the Applicant does not assert that Father Pak gave information to the Tribunal that the Tribunal found to be adverse. In the circumstances, Father Pak’s evidence was not information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [21 and [22]).

7. Accordingly, there was no information that enlivened the obligations of s.424A(1) of the Act.

Bias

1. Grounds 1 and 2 allege that the Tribunal made a subjective decision with “lots of his guesses and imaginations”. If such an allegation is intended to allege bias then such an allegation is serious and requires evidence, such as a transcript of the Tribunal hearing (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). The Applicant was directed on two occasions to file and serve any evidence in support of his application, including any transcript. No evidence has been provided to this Court by or on behalf of the Applicant either in accordance with that direction or otherwise.

2. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]).

3. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs 214 ALR 264 at [115]).

4. Otherwise, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. There was no unfairness on the part of the Tribunal disclosed in its record of decision, including the conduct of its review. In the circumstances, the Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review.

5. Accordingly, Grounds 1 and 2 are not made out.

Ground 3 – “lots of translations were wrong”

1. At the heart of the Applicant’s complaints is his allegation that the interpreter at the hearing did not properly interpret his answers to questions by the Tribunal member. However, such an allegation requires evidence. As stated above in these Reasons, the Applicant was directed on two occasions by this Court, being the first court date on

   
   

   15 February 2007 and again on 30 April 2007, to file and serve any further evidence upon which he intended to rely including any transcript of the Tribunal hearing. No evidence has been filed or on behalf of the Applicant.

2. Whilst the Applicant did not formally seek an adjournment to have a transcript prepared, it was a matter that this Court explored with the Applicant. The First Respondent indicated if an adjournment was sought it would be opposed on the basis that the Applicant has had ample time to file and serve any evidence in support of his application, including a transcript of the hearing. Further, the Applicant has participated in the panel advice scheme. I agree with the submissions made by the First Respondent.

3. To the extent that the Applicant could be taking to be seeking an adjournment for the purpose of providing a transcript and further evidence, such application is refused.

4. In the circumstances, the only evidence before this Court of what transpired at the hearing is the decision record of the Tribunal. A fair reading of the Tribunal’s decision does not suggest that the Tribunal had any difficulty with respect to understanding the Applicant’s evidence, nor that the Tribunal was of the view that the Applicant was having difficulty understanding its questions. The Tribunal did note that it had made allowance for the “nervousness and inhibition” that may affect the Applicant’s ability to express himself and had also taken account of the Applicant’s level of education. The Applicant himself stated in his amended application that he was asked whether he could understand the interpreter and that he had said “yes”.

5. There is no evidence before this Court to support the Applicant’s contention that there was any error in the translations provided by the interpreter before the Tribunal; let alone any error that would support a contention that the Applicant was effectively deprived of his right to appear in that he “had no real opportunity to express himself  and fully answer questions put to him by the tribunal” (VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 per Finkelstein J at [27]).

6. Accordingly, Ground 3 of the Applicant’s application is not made out.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court, commenced by way of application filed on 19 December 2006, is dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  1 August 2007