SZLLO & Anor v Minister for Immigration
[2008] FMCA 469
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 469 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicants in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZLLO” and “SZLLP”. |
| Migration Act 1958 (Cth), s.91X, 424A, 424B |
| NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 301 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 Tobasi v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 322 |
| First Applicant: | SZLLO |
| Second Applicant: | SZLLP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3127 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Applicants: | The applicants appeared in person with the assistance of a Mandarin interpreter. |
| Solicitors for the Respondents: | Mr M Snell of Sparke Helmore |
ORDERS
The application filed on 9 October 2007 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3127 of 2007
| SZLLO |
First Applicant
And
| SZLLP |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicants are a married couple and have been referred to as “the applicant” and “the applicant wife” in the Refugee Review Tribunal’s decision. These terms will also be used in this judgment.
The applicant was born in 1961 in Fujian province, the People’s Republic of China. He claims to be of Han ethnicity, a Christian and to have completed nine years of education. He left China using his own passport issued in 2004 and his visa to Australia was issued in Guangzhou on 27 November 2006.
The applicant claims that he married in 1986 and has four children. He claims that local tradition required him to have a son and so he paid a penalty to the government for violating China’s “One Child Policy” which left him in debt for many years. The applicant’s eldest daughter is currently studying in Australia. The have two other daughters and a son who remain in China.
The applicant claims that in February 2003 he relocated to Jiuru Village in Guangdong province to run “Shikou Brick Factory”. He also claims he established a Bible Study Group at the factory in June 2003. He claims that the Public Security Bureau (PSB) paid “special attention” to this group. The applicant held a Christmas party at the end of December 2005 at the brick factory where he was detained by the PSB.
The applicant claims that he continued to suffer persecution from the PSB. Furthermore, he claims that in April 2006 he was seriously injured after a truck lost control while forced to work on a highway.
The applicant claims he was assisted in coming to Australia by fellow Christians and, that since his departure, his family has been subjected to investigation by the PSB.
The applicant arrived in Australia on 14 January 2007 and applied for a Protection (Class XA) visa on 28 February 2007. A delegate of the first respondent refused to grant a visa on 27 April 2007 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the delegate’s decision (reference number 071447496) which is the decision that is subject to these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
The application filed in this Court on 9 October 2007 contains two grounds of review supported by eight particulars:
· There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
· There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1. Firstly, when I initially lodged my application with Onshore Protection NSW of the Department, I have clearly indicated to the Department at Question 16 on Form B that my wife did not have her own claims to be a refugee. Furthermore, my daughter has even not included in my protection application. Therefore, it is definitely unfair to refuse my protection application mostly relied on the evidences from my wife, who did not have her own claims to be a refugee, and my daughter who was not included in the application.
2. Secondly, my claims for a protection visa were mainly based on my experience, including my religious practices as well as my sufferings owing to my religious beliefs, in Guangdong from 2003 (my wife was in Fujian instead). Actually I spent most of time in Guangdong instead of my hometown in Fujian during the period from January 2003 to February 2006. I then spent a few months in a labour farm in Jiangxi Province. From February to May 2006. Although I returned to my hometown after I had been seriously injured, I was continually in troubles with the police. On the other hand, owing to serious injury of my leg, I could not have any normal livings, and I indeed suffered from many difficulties. Therefore, it was not unusual that my wife and I, as well as my daughter who had come to Australia much earlier than us, had some misunderstandings among us for our experience during that particular period from 2003 to 2006.
3. While the Tribunal looked at my case, it was apparently that the Tribunal has ignored major part of my claims in my application. On the contrary, the Tribunal only concentrated on the issues arising from the evidences of my wife who had not had her own claims to be a refugee and from the ones of my daughter who had not been included in the application. The key issues should be how I have been involved in religious practice in Guandong; why I have been subjected to persecution owing to my religious practices; and when I have been persecuted in Guangdong and Jiangxi, etc; instead of the issues such as how, why and when Tingting became involved with the church.
4. Thirdly, the Tribunal, according to its own prejudiced view, expected such as “…a relatively recent and apparently keen convert to ask his recently converted wife when or how she was baptised…” However, apart from its expect (assumption), the Tribunal’s finding should have based on sufficient ground.
5. Fourthly, the Tribunal should put its question clearly. My wife certainly remember “…the details of her own baptism..” But, it was not the question put to us by the Tribunal; instead, the question was whether or not I knew any details about my wife’s baptism.
6. Fifthly, the Tribunal failed to consider my claims fairly or with necessary knowledge about actual situation in China. For example, after I returned to my hometown in May 2006, I continually suffered from persecution by the authorities, which, indeed, gave many troubles to my family, particularly to my wife. In order not to affect normal living of my family including my wife, I had to move my grandfather’s house for the time being around July 2006, but the address of my household register (hukuo in Chinese) was never changed. According to Chinese tradition, we normally regarded the hukuo address as our genuine residential address; I did not mention it previously to the Department.
7. Another example, the Chinese Constitution has stated that “Citizens have freedom of religious belief”. However, as the country information provided by the Tribunal itself that “The constitution provides for freedom of religious belief and the freedom not to believe….” The key issue is that I have been regarded as a “religious dissident” with strong “anti-government” religious ideologies by the PRC authorities. The Chinese government believe that those Christians must be “poisoned” or affected “negatively” by me to pursue so-called “religious freedom” if I were allowed to attend the official church. Therefore, I have not been allowed to get involved in any religious activities even those in the official church.
8. Finally, the interpreter at the Tribunal’s hearing was not very good; and on many occasions, the interpreter was unable to interpret my claims accurately and properly. My daughter tried to put forward her objection against the interpreter, but she was unfortunately stopped by the Tribunal (she once raised her hand at the hearing in order to indicate her concerns on the interpreter, but she was never given any chances to do so).
Consideration
The applicant appeared at the first Court date before Scarlett FM. He indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and nothing in the file indicates that he did not receive legal advice.
The applicant was also granted leave to file an amended application setting out each ground of review relied upon by 3 December 2007. He was advised that all evidence relied upon must be in affidavit form and that if he wished to rely upon evidence of the Tribunal hearing, he must file and serve a transcript of the hearing annexed to an affidavit. An order was also made that a short written outline of submissions and a list of authorities relied upon must be filed 14 days before the hearing.
The matter was transferred to my docket several days prior to the hearing because of the unavailability of Scarlett FM. An examination of the file indicated that none of the orders made by His Honour on 5 November 2007 had been complied with. At the commencement of the hearing, the applicant confirmed this. When the applicant was asked whether he wished to make any oral submissions in support of his application he indicated that he did not.
The Tribunal’s findings
On 3 August 2007, the Tribunal faxed a letter to the applicants’ migration agent, Ms Priscilla Yu of Priscilla International Co Pty Ltd, pursuant to ss.424A and 424B of the Migration Act 1958 (Cth) (“the Act”). This correspondence invited the applicants to comment on inconsistencies the Tribunal had identified between the oral evidence given by the applicants and their daughter at the Tribunal hearing on 1 August 2007 (CB 83-86). The Tribunal also identified inconsistencies between the written claims of the applicant (which were attached to his original protection visa application) and his oral evidence at the hearing. The Tribunal letter was addressed to both applicants and indicated that unless otherwise notified, any response would be considered a joint response.
The applicants’ migration agent responded by letter on 17 August 2007 attaching a statutory declaration prepared by the applicant (CB 87-89). The original s.424A letter and applicant’s response are reproduced in the Tribunal decision in full (CB 110-114). In the circumstances where the applicants were given an opportunity to comment on information and they availed themselves of that opportunity, the requirements of s.424A of the Act were complied with.
The Tribunal decision records a number of inconsistencies between the applicant’s written and oral evidence, the oral evidence of his daughter and the evidence of the applicant’s wife. On a number of occasions during the hearing, these inconsistencies were raised by the Tribunal member without satisfactory response and were subsequently the subject of the s.424A letter (CB 108-118). The adoption of this procedure clearly alerted the applicants that there were serious inconsistencies. This sufficed to prevent the Tribunal from any claimed breach of s.425A: SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [42]-[44]. As the applicants were represented by a registered migration agent throughout the relevant period, that agent was under an obligation to clearly explain to them the significance of the “Invitation to Comment” letter.
The Tribunal reached the following conclusion “Findings and Reasons”:
The Tribunal did not find the applicants to be truthful and credible witnesses. In reaching this view the Tribunal has had regard to the inconsistencies in their evidence, as well as other reasons discussed below. (CB115.2)
The Tribunal did not accept that the applicant would suffer persecution as a result of his Christianity in China and made the following statement as a consequence of its strong adverse credibility finding:
Given the fundamental lack of credibility within the applicants’ evidence, the Tribunal cannot give any weight to the documents they have submitted in support of their case, including the purported letters from family members in China or the information contained in the letters relating to their claims (see WAEJ v MIMIA [2003] FCAFC 188, paragraph 52)(CB 118.10-119.1)
The Tribunal also found that the applicants’ church attendance in Australia was in order to strengthen their refugee claims and it disregarded this in accordance with s.91R(3) of the Act (CB 119.4-119.5). The finding in respect of s.91R(3) is a matter of fact for the Tribunal: NAQS v Minister for Immigration [2002] FMCA 301 at [10] per Raphael FM.
Grounds of review
The applicant filed in his original application two brief grounds of review supported by eight particulars. The grounds as pleaded do nothing more than state that there is an error of law which constitutes jurisdictional error and that the Tribunal denied the applicant natural justice. The particulars are set out in a manner indicating that the two grounds should be treated together and the particulars support that broad claim.
The particulars address three issues:
i)evidence of the wife and daughter (particular one);
ii)findings of fact which go to the merits of the applicant’s case (particulars two to seven); and
iii)complaint against the standard of interpretation (particular eight).
Evidence of the wife and daughter
The applicant claims that the Tribunal unfairly relied on adverse oral evidence of his wife, who did not have an independent claim, and his daughter, who was not part of the protection visa application.
Mr Snell, for the first respondent, contends in his written submissions that the oral evidence was adduced from the wife and daughter at the Tribunal hearing pursuant to s.426 of the Act. It is submitted that the Tribunal notified the Tribunal of the inconsistencies. This was clearly set out in the “Invitation to Comment” letter dated 3 August 2007 issued pursuant to s.424A of the Act (CB 83).
The Tribunal complied with its duty in accordance with s.424A to provide particulars to each of the other individual applicants. This obligation arose because both applicants gave evidence at the Tribunal hearing and that evidence “was the reason or part of the reason” for affirming the delegate’s decision. Consequently, both applicants had to be given an opportunity to comment on that information pursuant to s.424A: SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110.
A response received by the Tribunal on 17 August 2007 satisfied the requirement. The applicant, with his agent’s assistance, prepared a statutory declaration responding to the issues raised in the Tribunal letter. They were made aware that the Tribunal would consider the response as being prepared on behalf of both applicants unless notified to the contrary. The Tribunal clearly understood that the applicant wife was not making any independent claim but relied entirely on her husband’s claim.
I am satisfied that there is no error in the Tribunal’s approach in addressing this provision of the Act, nor it is apparent that it did not deal with the applicant’s reply. In the circumstances, I am satisfied that the issue raised in particular one cannot be sustained and should be dismissed.
Findings of fact which go to the merits of the applicant’s case
In particulars two to seven, the applicants are asking this Court to undertake a merits review of the Tribunal’s decision and, in particular, an assessment of the credibility of the applicant’s factual claims.
Mr Snell submits that the rejection of the applicant’s claims was a purely factual conclusion of the applicant’s credibility which is a “function of the primary decision maker par excellence”: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Tobasi v Minister for Immigration & Multicultural Affairs (2000) 122 FCR 322 at [87]. It is submitted that it was a matter for the Tribunal to decide what evidence it found persuasive in rejecting the applicant’s claims.
I agree with Mr Snell’s submissions that the applicant’s disagreement with the Tribunal’s conclusions do not provide a basis upon which the decision could properly be set aside on judicial review. A finding in relation to credit is a finding of fact. It is a matter solely for the Tribunal and not for this Court: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]. I am satisfied that particulars two to seven do not establish any ground for judicial review and should be dismissed.
Complaint against the standard of interpretation
Particular eight claims that the interpreter was “not very good” and that during the hearing, the applicants’ daughter attempted to object to part of the interpretation but was denied the opportunity to do so by the Tribunal member. There is no evidence to support this claim. As I have referred to above Scarlett FM made the following order at the first Court date:
2. Apart from the Court Book, all evidence relied upon by a party must be in the form of an affidavit. Any party wishing to rely on evidence of a Refugee Review Tribunal hearing must file and serve a copy of a transcript of that hearing annexed to an affidavit.
This application was filed with the assistance of a registered migration agent, Ms Priscilla Yu, of Priscilla International Co Pty Ltd and is in the form commonly seen in this Court prepared by that office. That the applicant instructed his migration agent is not in doubt, however the registered migration agent would be aware that a claim of this nature would require a transcript of the Tribunal hearing. Further affidavit evidence would have to be submitted from a certified interpreter stating that the interpretation at the Tribunal hearing was not performed competently. The interpreter would have to give evidence that the parties had been disadvantaged or misunderstood by serious defects in that interpretation. There has been no such evidence filed in these proceedings.
A competent agent would have undertaken those two essential steps to establish the incompetency of the interpreter at the hearing. Besides that, a fair reading of the Tribunal decision makes no reference to any difficulty faced by either the applicants or the member because of defects in the standard of interpretation. In the absence of any comment in the decision record – which is the only material before this Court – it must be assumed that the Tribunal was satisfied that it received adequate and appropriate responses from the applicant to the questions asked.
After re-reading the Tribunal decision, I am satisfied that there was no comment or inference that there was a problem with interpretation. The only inference that can be drawn is that the applicant and his daughter became evasive when adverse material was put to them.
I am of the view that particular eight cannot be sustained in the absence of evidence in support of the claim. Whether the applicant still engaged the migration agent is not clear. However, the Court application filed on 9 October 2007 indicates that the applicant relied on someone with some knowledge of filing judicial review applications. The style the grounds and particulars are pleaded are commonly seen in this Court although the author is unidentified. Particular eight should be dismissed.
Conclusion
The applicant in these proceedings is a self-represented litigant assisted by a Mandarin interpreter. The applicant relies entirely on his original application filed in the Court. Despite being afforded the opportunity to obtain panel advice, no amended application or oral submissions were submitted. The Tribunal based its finding on the applicant’s credibility after complying with the provisions of the Act to adequately bring these issues to the applicant’s attention. I am satisfied that Mr Snell has addressed all the issues raised in the application in his written submissions. I am satisfied that no jurisdictional error is evident in the Tribunal’s decision and that this application should be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
24 April 2008
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