SZKIV v Minister for Immigration
[2008] FMCA 14
•15 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKIV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 14 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZKIV”. |
| Migration Act 1958 (Cth), ss.91X, 424A |
| Applicant: | SZKIV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 867 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Ms M Palmer of Sparke Helmore |
ORDERS
The application filed on 15 March 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 867 of 2007
| SZKIV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a single female who claims to have been born in Beijing in the People’s Republic of China. She claims that she worked at Liyang Clothing Factory and that around September 2003, a Ms Zheng Yu Juan commenced work at the factory. Ms Zheng was a new graduate from Qinghua University in Beijing and worked as a manager’s assistant. Ms Zheng was a Christian who organised social events for young workers. At a New Year’s party on 1 January 2004, Ms Zheng informed the guests that she had decided to setup a Bible Study Group and asked them to join. In May 2004, the group went to a small village in Yanqing County and were introduced to Chen Wen Lin who was a priest of the Beijing Xibei Christian Underground Church. Mr Chen personally interviewed each member of the Bible Study Group before they were baptised by him. Since then, the applicant claims she became a devout Christian and a firm member of the Beijing Xibei Christian Underground Church.
The applicant eventually decided to leave China because she became targeted by the Chinese government owing to her deep involvement in the underground church. Besides attending religious gatherings, she assisted in the manufacture of religious materials which she distributed in residential areas in Beijing. In December 2004 during a Christmas party, officers of the Public Service Bureau (PSB) came to Ms Zheng’s home and arrested the guests. The applicant claims that she was detained in a cell in the basement of the PSB building for one week. She claims she was interrogated, forced to confess and pay a RMB 2000 fine. She was also made to undertake that she would not participate in other illegal religious parties. Despite this, the applicant continued to participate in church activities until 30 April 2006 when the PSB again arrested Ms Zheng and the bible group was destroyed by the police. The applicant left China on 5 April 2006 to avoid arrest by the PSB.
The applicant arrived in Australia on 8 April 2006 and applied to the Department for a Protection (Class XA) visa on 8 May 2006. A delegate of the Minister decided to refuse to grant the visa on 24 July 2006 on the ground that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. However the Tribunal affirmed the delegate’s decision on 24 January 2007 (reference number 060726144). The applicant applied to this Court for judicial review of the Tribunal’s decision.
At first Court date directions, the applicant indicated that she wished to participate in the Court sponsored legal advice scheme. She was allocated a panel adviser and, although a conference was scheduled, the applicant failed to appear. Written advice was then provided to the applicant by mail. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. She complied with this order and filed an amended application which contained the following grounds:
Ground one
The Tribunal ignored the important evidence that I provide in support of my application.
Ground two
The Tribunal failed to consider my claims, fairly and properly; or the Tribunal misunderstood my claims or identified a wrong issue in my case.
Ground three
The Tribunal failed or refused to contact a real chance test; and the Tribunal failed or refused to consider my evidences, fairly and properly.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
Consideration
At the directions hearing, the applicant was ordered to file written submissions however she did not comply with this order. When invited to make oral submissions, the applicant (via the interpreter) read from prepared notes which re-ventilated the major aspects of her claim without specific reference to the grounds of review in the amended application. The applicant also complained about the standard of interpreting at the Tribunal hearing, stating that the interpreter made mistakes in respect of certain dates referred to in the evidence. However, the applicant did not identify the specific dates or indicate the alleged impact of those errors.
Ground one
The Tribunal ignored the important evidence that I provide in support of my application.
Particulars
1.1In relation to my application to the Department of Immigration and Citizenship (“the Department”) as well as my claims to the Tribunal, I have provided evidence that:
- While Si Si assisted me to lodge my protection application at the beginning, she told me that I might have been in troubles if I had exposed that I had entered Australia on a false passport with a false name. She also told me that it would, definitely, be impossible for me to be eligible to work if I had done so. Therefore, Si Si suggested me to lodge my protection application in the name on that false passport; and I had to accept her suggestion at that time, because I did not have any legal knowledge and I even did not [understood] any English.
- As a matter of fact, everything I told Si Si was true. However, I accepted Si Si’s suggestion to use the name of [“SZKIV”] which was the one on the passport that I had used to enter Australia; and on the passport, the place of birth of [“SZKIV”] was described as “Beijing”; and thus, Si Si kept major part of my claim in my protection application except that she had stated that I had been from Beijing and I had been a member of Beijing Xibei Christian Underground Church.
- So, it was true that while my protection application was prepared, Si Si asked me the question and Si Si [filed] out the form and read back what she had written in Chinese. It was also true that major part of the forms should be correct except some points mentioned in above.
1.2According to abovementioned evidence, which has unfairly ignored by the Tribunal, the Tribunal’s finding – that “if the applicant did fear returning to China because she was a member of Yidu County Xincun Church, then it would not be unreasonable to assume that she would have stated that in her application. This leads the Tribunal to conclude that she is not a member of the Yidu County Xincun Church….” – is definitely incorrect or improper.
I agree with Ms Clegg, for the respondents, that the particulars set out in support of ground one are simply a re-agitation of the issues considered by the Tribunal at its hearing of 7 December 2006. Those particulars do not identify any error by the Tribunal and this ground cannot be sustained.
Ground two
The Tribunal failed to consider my claims, fairly and properly; or the Tribunal misunderstood my claims or identified a wrong issue in my case.
Particulars
2.1I did not raise the issue regarding the interpreter at hearing after the Tribunal’s hearing but BEFORE the Tribunal made its final decision. The Tribunal has NEVER clearly informed me by which deadline that I had to raise the problem of interpreter or within which period that I had to do so. However, I did indeed raise the issue before the Tribunal’s decision; and it must be unfairly if the Tribunal refused to consider it, fairly and properly.
2.2The Tribunal failed to consider or misunderstood my evidences as follows:-
-At the Tribunal’s hearing, I did not quite understand the
questions put by the Presiding Member, because the
interpreter did not translate, accurately and properly, the
question put to me. At the beginning, I thought what the
Presiding Member asked me might have been about the
miracles that Jesus had performed; but later on, I thought
that the Presiding Member wanted me to describe
contents of Bible in details; which, I thought, would be
very hard for me; and really did not know what I could
say.-I might not say very clearly. What I intended to say, at
the hearing before the Tribunal, was that “by January
2004” but not “by 2001”. According to Chinese
tradition, we always say “the year” first and then “the
month” (and “the date” if necessary). For example, if I
wanted to say “January 2004”, I always say “2004” first
and then “January” – in Chinese, and it would sound like
“erlinglingsinianyiyue”. However, I am from Fuqing of
Fujian Province in China, and I speak Mandarin with
strong Fuqing accent, which might be sound like
“erlinglingyi”;-Actually, at that time, I was talking about the event with
the Tribunal from “September 2003”; and subsequently,
what I said should be the even happened after September
2003; and it was impossible for me to jump back to
“2001”.-I was very nervous indeed at the hearing before the
Tribunal.
Ground two has a similar problem to ground one in that it is no more than re-agitation of the issues previously re-ventilated at the Tribunal hearing.
The applicant does raise the issue of errors made by the interpreter. Alleged interpreter errors were raised by the applicant during the Tribunal hearing. The applicant made assertions about poor or inaccurate interpretation and the Tribunal dealt with them in a fair and open-minded manner. The Tribunal ultimately did not accept the applicant’s claimed difficulties in interpretation (CB 114.5, 114.9-115.3, 116.3-116.9).
It is submitted that the Tribunal went as far as arranging its own accredited interpreter to consider whether an error had occurred. That was an alleged error in connection with the date when the applicant met Ms Zheng. Unsurprisingly, given the evidence before it, the Tribunal concluded after forwarding a s.424A letter to the applicant setting out the alleged error that no error had occurred (CB 79-82). The Tribunal also considered the applicant’s claim to have been nervous at the hearing (CB 115.3). Ms Clegg submits that there was no error in the Tribunal’s approach to the claimed error in interpretation.
The “Invitation to Comment on Information” letter invited comment in writing on the following:
The Tribunal had a subsequent NAATI accredited interpreter listen to a selected extract of the tape concerning the Tribunal hearing held on 7 December 2006. The subsequent interpreter has stated that at the hearing, he stated that: by 2001, in the beginning it was like this: I feel that she was a Christian, because she said do you believe that there is a sole or thing like that (CB 79).
Attached to that letter are handwritten notes from the interpreter setting out the sequence, questions and answers from the hearing. The applicant with the assistance of her migration agent, of Priscilla International Co. Pty. Ltd., responded by letter with a detailed explanation correcting the dates where the alleged misinterpretation had occurred. Consequently, any misinterpretation that occurred during the hearing was rectified prior to the Tribunal making a decision. I am satisfied that once the problem was identified the Tribunal took the appropriate steps to rectify it so that its decision was not affected by any misinterpretation that occurred during the hearing process. Further, I am satisfied that no error occurred as a result of any error in the interpretation during the hearing. This ground cannot be sustained.
Ground three
The Tribunal failed or refused to contact a real chance test; and the Tribunal failed or refused to consider my evidences, fairly and properly.
Particulars
3.1As I have mentioned above, while my protection application
was prepared, Si Si asked me the questions and Si Si [filed] out
the form and read back what she had written in Chinese; and
major part of the forms should be correct.3.2So, it must be not unusual that my “
statement to the Tribunal
dated 16 November 2006 is in almost exactly the same terms to
the statement in the visa application, except that the second
statement said the applicant was from Fujian and a member of
the Yidu Town Xincun Christian Church”.
3.3It is definitely unfair that the Tribunal failed or refused to
contact a real chance test simply owing to “the level of
consistency between two documents” (one to the Department
and the other to the Tribunal).
Ms Clegg contends that the evidence given by the applicant during the Tribunal hearing was implausible and changed depending on how particular documents were drafted. It is submitted, and I agree with the submission, that it was opened to the Tribunal to reason in the way that it did (CB 115.8-116.3). Ms Clegg also submits that ground three misconceives the Court’s function and seeks to re-agitate the merits of the applicant’s case previously rejected by the Tribunal. I am satisfied that ground three cannot be sustained.
Conclusion
The applicant appeared at the hearing with the assistance of a Mandarin interpreter. She filed an amended application which was prepared with the assistance of a third party with limited knowledge of migration law. Unfortunately the applicant was misled to believe that the application before this Court was a further opportunity to present her claims and to obtain a protection visa. The contents of the amended application and the nature of the applicant’s oral submissions are seen in this Court on a regular basis. The third party who contiunally provides such advice to applicants misunderstands the purpose of this review.
Ms Clegg assisted the Court with written submissions in response to the amended application. I accept her submissions that the three grounds pleaded in the amended application do not raise grounds of judicial review other than in respect of interpretation. I am satisfied that the Tribunal took appropriate steps to rectify the problem that occurred in respect of any errors of dates. The misinterpretation didnot influence the outcome of the decision. I have reviewed both the Tribunal decision and the contents of the Court Book but have not been able to identify any error on the face of those documents. I am satisfied that no jurisdicitonal error is apparent and that none of the pleaded grounds can be sustained. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 January 2008
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