SZKBZ v Minister for Immigration - [2007] FMCA 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKBZ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 863

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – alleged interpretation difficulties at Tribunal hearing – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.91R, 424A

Abebe v Commonwealth (1999) 197 CLR 510
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration ; ex parte Durairajasingham (2000) 168 ALR 407
SBBS v Minister for Immigration (2002) 194 ALR 749
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant:

SZKBZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG236 of 2007

Judgment of:

Driver FM

Hearing date:

5 June 2007

Delivered at:

Sydney

Delivered on:

5 June 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG236 of 2007

SZKBZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down 4 January 2007. 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 on them are set out in the Minister’s submissions filed on 25 May 2007.

I adopt as background for the purposes of this judgment, with any necessary amendments, paragraphs 2 through to 5 of those submissions:
The applicant applied for the visa on 16 May 2006: court book (CB) 1‑39. The delegate refused the visa on 17 August 2006: CB 42-51, and the Applicant applied to the Tribunal for review on 5 September 2006: CB 53-63. The Tribunal held a hearing on 14 November 2006: CB 82-83, and on 17 November 2006 wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) ("Act"): CB 85-87.
Applicant's claims
The applicant claimed to fear persecution in the People's Republic of China ("PRC") for reason of her religion. She claimed to be a Christian member of the True Jesus church in Fujian, and to have assisted a priest (not associated with this church) in spreading Christianity from February 2006 by handing out pamphlets and talking to people in her shop. She claimed the priest disappeared and that she was questioned about him by PRC authorities on a regular basis. She claimed she would be jailed if she returned to the PRC. See generally CB 32-33 and 136-144.
Tribunal's findings
The Tribunal found the applicant was not credible, noting inter alia:
a)inconsistencies in her claims concerning her age, when she first met the priest and the time and place of her questioning by government officials;
b)inconsistencies in the alleged corroborative material she submitted in response to the Tribunal’s s.424A letter;
c)the applicant’s inability to explain why she followed the priest in preference to her former church; and
d)her general lack of knowledge of Christianity which was not commensurate with her alleged beliefs.
The Tribunal concluded that the applicant had not met the priest or assisted him as she claimed, was not interrogated by government officials as she claimed, that her alleged corroborative statements were fabricated and that she had attempted to mislead the Tribunal with the documents she had submitted. The Tribunal found that she did not hold Christian convictions and that if she had been to church in Australia this was to support her application for refugee status (and so to be disregarded pursuant to s.91R(3) of the Act). The Tribunal concluded that the Applicant did not have a well founded fear of harm in China for a Convention reason. See generally CB 144-148.
These proceedings began with a show cause application filed on 25 January 2007. That application asserts actual notification of the Tribunal decision on 4 January 2007. I find that the application was filed within time.
I gave procedural directions in relation to this matter on 21 February 2007. I gave the applicant the opportunity to amend her application and to file additional evidence in support of it. She did not take up those opportunities. I have before me as evidence the book of relevant documents filed on 14 March 2007. The applicant filed a short affidavit with her show cause application. I received paragraph 2 of that affidavit as a submission. The Tribunal decision annexed to the affidavit appears in the court book.
The applicant arrived one hour and four minutes late for today’s hearing. With the assistance of the interpreter my associate had two telephone conversations with her on her mobile telephone. I understand that in the first conversation the applicant said that she was at Burwood and would attend court at 11.00am. When she had not arrived at that time there was a second conversation. The applicant said in the second conversation that she had gone in error to John Maddison Tower and was en route to Queens Square. When the applicant appeared in court at 11.19am I asked her why she was not in court at 10.15am. She told me that she was confused about the hearing venue because she had received contradictory correspondence from the Court and from the Minister’s solicitors. The Minister’s counsel conceded that a letter had been sent to the applicant by the Minister’s solicitors incorrectly informing her that the hearing would be at John Maddison Tower. The applicant also said that she was confused about the hearing date. The reason for that confusion is unknown.
The applicant denied receipt of the Minister’s written submissions filed on 25 May 2007. When I put to her, however, that she must have received them because the Minister’s counsel had told me that the letter accompanying those submissions was the one which incorrectly advised that the hearing venue was John Maddison Tower, the applicant conceded that that must be so.
The applicant’s asserted grounds of review and the Minister’s submissions on them are set out in paragraphs 6 through to 9 of the Minister’s written submissions:
The application contains three grounds of review.
The first complains about the interpretation at the hearing. The Tribunal record discloses that on occasions the interpreter had difficulty understanding the Applicant (at CB 138.4), but this does not demonstrate any fault on the part of the interpreter. The Applicant has not provided any evidence to suggest that the interpretation at the hearing was such as to not comply with ss 425 or 427(7) eg Appellant P119/2002 v MIMIA [2003] FCAFC 230.
The second and third grounds suggest that the member was biased. This is a serious allegation, and must be clearly proved eg SBBS v MIMIA (2002) 194 ALR 749 (FCAFC) at [43-47]. Here it is made without any basis at all. The fact that the Tribunal may have formed a preliminary view of the Applicant’s credit during the hearing is no evidence of bias: MIMA v Jia Legeng (2001) 205 CLR 507 at [72], [186].
The Tribunal’s conclusions that the Applicant was not credible and her claims untrue and/or fabricated are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
I sought to discuss the asserted grounds review with the applicant. She submitted that there were interpretation problems at the hearing but was not able to expand on the allegations in the application. Neither was she able to expand upon the allegations of bias, whether actual or apprehended.
There is no substance to the grounds of review. The record of the Tribunal decision records that two interpretation issues arose at the hearing conducted by the Tribunal. At the hearing the applicant was asked about what happened at the church she said she attended in China. She was asked in particular about her dealings with a particular priest. On page 138 of the court book the presiding member says:
She stated she would listen to preaching and sing songs. She was then asked to sing a song and the Tribunal then asked the interpreter to interpret. The interpreter interpreted ‘Sing out my happiness and my joy to the Lord whatever the situation’, ‘I can’t’ ‘Forget about your worries and put down all your burdens, embrace in love from your God.’ When asked what did the interpreter mean when he stated ‘I can’t’, he stated he could not distinguish the words. The Tribunal then asked the visa applicant to sing the song again because the interpreter had not interpreted some of the words. The interpreter stated he needed the applicant to write out the words. The Tribunal then asked the applicant to write out the first eight lines of what she had sung. The interpreter translated the words ‘always rejoice, sing loudly to the Lord, not [sic] matter what the situation, looking after the high mountains and deep valleys, if you believe you will be blessed. The hands are lifted in one go. When it was put to the applicant that the Tribunal wanted her to write the words of the song she had sung to the Tribunal, she stated they were the words.
The applicant was also asked about the church that she claimed to have attended in Australia. The presiding member records on page 139 of the court book:
The applicant stated she had joined a church in Australia. The interpreter was unable to translate which one. When asked could she write it down, the interpreter was unable to translate what she had written because he stated he had never seen the combination of the three Chinese characters in the local Chinese media in Australia. The adviser was then asked to translate. He stated that he thought it was the phonetic translation of the English words and maybe ‘Padstow’ was in it.
The Tribunal proceeded to make adverse credibility findings on a wide range of issues. The adverse credibility findings included a finding that at hearing the applicant was unable to repeat the words to an alleged hymn (CB 147) and that the applicant at the hearing did not know which church she attended in Sydney (CB 148). There is nothing else that could support the assertions of interpretation problems. In the absence of a transcript and possibly expert evidence from a Chinese speaker about it I am unable to conclude that there is any support to the assertion of interpretation problems. It is apparent from the record of the Tribunal decision that at the two points mentioned the interpreter was having difficulties. However, I cannot conclude that those difficulties were a result of any incapacity on the part of the interpreter. It is equally possible that the applicant was being intentionally obscure.
In any event there was ample information before the Tribunal, in respect of which there is no interpretation issue, to support the Tribunal’s adverse credibility findings. Further, the Tribunal contemplated the possibility that it might be wrong in finding that the applicant did not know what church she attended in Sydney. The Tribunal concluded, in effect, that if the applicant did attend church in Sydney it was for the purpose of enhancing her protection visa claims. Accordingly, although not stated expressly by the Tribunal, the Tribunal would have been required to disregard that conduct pursuant to s.91R(3) of the Migration Act. I find that there was an effective hearing opportunity afforded to the applicant and that there was no procedural unfairness in the conduct of that hearing through an interpreter.
The applicant is concerned about the adverse credibility findings made by the Tribunal. However, those findings were open to the Tribunal on the material before it. Neither is there any substance to the allegations of bias, whether actual or apprehended. There is nothing in the court book to support the assertions of bias and no other evidence is available. I reject those grounds in the application. No other jurisdictional error by the Tribunal is apparent to me.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in accordance with the Federal Magistrates Court scale in the sum of $5,000. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of Part 2 of schedule 1 to the Federal Magistrates Court Rules2001 (Cth).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 June 2007