SZLTH v Minister for Immigration - [2008] FMCA 880

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLTH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 880

MIGRATION – Review of decision of RRT – where applicant claims Tribunal ignored information – where applicant alleges standard of interpretation deficient but provides no evidence by way of transcript or otherwise and does not seek an adjournment.

ApplicantS214/2003 v Refugee Review Tribunal [2006] FCAFC 166
SZHVL v Ministerfor Immigration [2008] FCA 356
Minister for Immigration v MZXPA [2008] FCA 185
SZJZE v Ministerfor Immigration [2007] FCA 1653

Applicant:

SZLTH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3811 of 2007

Judgment of:

Raphael FM

Hearing date:

11 June 2008

Date of Last Submission:

11 June 2008

Delivered at:

Sydney

Delivered on:

11 June 2008

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $2,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3811 of 2007

SZLTH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. She arrived in Australia on 3 June 2007. On 17 July 2007 she applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 2 August 2007 a delegate of the Minister refused to grant a protection visa. On 31 August 2007 the applicant applied for review of the delegate’s decision from the Refugee Review Tribunal. On 12 October 2007 the applicant attended a hearing before the Tribunal together with an interpreter. On 29 October 2007 the Tribunal determined to affirm the decision not to grant the visa and handed that decision down on 13 November 2007.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were contained in a statutory declaration commencing at [CB 24]. Briefly, she told how her husband had left China in or around 1999 for South Africa. In about 2005 her husband, who by this time had arrived in Australia and was seeking asylum, asked her to give 90,000 RMB to his friend, Mr Zhang, who had planned to open a shop providing copying services. The applicant then began to work with Mr Zhang as an assistant.
The applicant claims that Mr Zhang was a member of an underground human rights movement who in September 2006 received a copy of the Nine Commentaries on the Communist Party through her husband and made about 1,000 copies of it which the applicant assisted in distributing. She says that on 30 September 2006 Mr Zhang and some colleagues were arrested but luckily she was not at the copying shop at the time. She went into hiding and eventually ended up in a small village in the Wuyishan Mountain area.
She says that Mr Zhang informed upon her and said that she was one of the key members of a human rights group. Whilst in hiding the applicant met a Ms Ji who is a Christian member of the local Shouter’s Church. In December 2006 the applicant began to attend meetings of that Church and became a supporter and convert to it. She was baptised on 11 February 2007.
The applicant claimed that as part of her duties in the Church she distributed about 10,000 copies of promotional material and 2,000 copies of the Bible. Under questioning from the Tribunal she said that this distribution was done between the hours of 5p.m. and 9p.m. in her local area and that she left the Bible and the material on people’s window sills.
The applicant stated that after her baptism, arrangements began to be made for her to travel overseas because Ms Ji and her associates were concerned for the applicant’s safety. She says that these people spent a lot of money bribing the necessary officials to obtain a visa which allowed her to leave the country and travel to Australia. She says at the time she was about to leave Ms Ji and three others were arrested by the PSB and she became again a target of the PSB. She is now regarded as a major activist of the local church.
The Tribunal questioned the applicant about why she had applied for a passport approximately a year before she left the country and how she had made her arrangements to travel to Australia. She claimed that she did not know how much money was paid in order to obtain the visa but stated that the persons who paid the money did not require it to be returned to them.
The Tribunal then turned to the applicant’s claims in relation to Mr Zhang. It explained that it found it difficult to understand why she should give a large sum of money to a man who she did not really know at the request of her husband who she had not seen for some years and to whom she had told the Tribunal she had spoken only infrequently.
“The Tribunal pressed the applicant about her political commitment to her activities and after some discussion the applicant agreed that she had no particular political beliefs but hoped that the government could give ordinary people freedom of speech and freedom of religion.”
The Tribunal questioned the applicant about the distribution of the material and how this was done.
“The Tribunal clarified this issue with her and she affirmed that she had not distributed any material prior to October 2006. The Tribunal put to her that in her original statement on her protection visa application, she claimed that she and Mr Zhang produced, “much propaganda” and asked the applicant what material she produced. She claims that before 2006 they just produced material that other people gave them. Asked to clarify if that “other material” was propaganda the applicant gave a vague and confusing answer.”
The Tribunal then turned to the applicant’s stay in Wuyishan and questioned her about her association with the Shouter’s Church and her knowledge of the Christian religion as taught by that Church. The applicant gave some responses, which one might not consider to be entirely consistent with what might be understood as Christian Orthodoxy, but did state that she did not understand the Bible because she had only had a little primary education and could not read the characters.
The Tribunal questioned the applicant about her distribution of religious materials and expressed its doubts as to the credibility of her story.
“The Tribunal asked the applicant if there was a particular incident that happened to provoke the sisters into being so concerned about her safety that they began raising money to send her overseas. The applicant claimed that the sisters realised that she could not stay in hiding all her life so it was time to go overseas. The Tribunal asked the applicant if she knew that the police were still looking for her and she claimed that she did. Asked how she knew, the applicant claimed that her mother-in-law had told her that there was a warrant for arrest. Asked if anything happened to her prior to her departure from China the applicant claimed that Ms Li and four others were questioned in Wuyishan. Asked how she found out the applicant claims that she was still living in her uncle’s house at the time that it happened and found out the next day. The applicant claimed that Ms Li and the others were arrested at the Church because of a tip-off. The Tribunal put to the applicant that it seemed implausible that her fellow sisters would be arrested; however the police did not seek her out, despite the fact that there was a warrant out for her arrest. The applicant claimed it was because the police did not know that she was there.”
The Tribunal turned to the manner in which the applicant left China.
“The Tribunal put to the applicant that she would at least have been questioned if not detained when she tried to leave China. The applicant told the Tribunal that in China, as long as you have money to pay people you can get anything. The Tribunal put to the applicant that she had spent a long time trying to convince the Tribunal that she had nothing to do with bribing anyone and did not know how much the sisters spent trying to ensure her safe departure. The Tribunal put to the applicant that her previous evidence had been quite clear on this point and that she had tried to repay the sisters but they did not want any money. The Tribunal suggested to the applicant that there was no evidence that anyone had been bribed to ensure her departure. The Tribunal put to the applicant that it did not accept that she was of adverse interest to the authorities and asked for her response or comment. The applicant claimed that the Chinese government can be bribed.”
The Tribunal then passed to its findings and reasons and, whilst accepting that members of the Shouter’s Church may be subjected to serious harm and systematic and discriminatory conduct amounting to persecution, came to the view that it was not satisfied that the applicant was a member of that Church. It felt that her account of her activity in distributing Bibles was profoundly unconvincing,
“… not least of all because the logistics of doing so seemed beyond the exertions of a single person on a bicycle. She also claims to have distributed them during the evening hours where there would be a reasonable expectation that people would still be active about their professional or personal business and hence it would not be unreasonable to expect that the applicant would have been observed distributing these Bibles.”
In regard to the applicant’s claimed political opinion the Tribunal found that this story was unconvincing and lacked credibility. It did not accept that 90,000 RMB would be paid to a relative stranger on the say so of a husband who had not been around for some years. Nor did the Tribunal feel that it was credible that if her husband had told Mr Zhang to copy and distribute the Nine Commentaries he would not have told his wife that this involved dealing with sensitive material that might put her at serious risk. In relation to the manner in which the applicant left China, the Tribunal could not accept that this would have been possible for a person against whom several arrest warrants have apparently been issued.
As the Tribunal did not accept the applicant as a witness of truth it found that she had suffered no past persecution and there was no real chance that she would suffer persecution now or in the reasonably foreseeable future as a result of her political opinion, religion, membership of a particular group or for an imputed political opinion, religious belief or membership of a particular social group if she returned to China now or in the reasonably foreseeable future.
It is important to note that whilst the Tribunal and the applicant discussed her husband at some length and it was acknowledged that he had made his own (currently unsuccessful) application for a protection visa, the applicant had not claimed as part of her own application some fear arising out of any imputed political opinion because of her relationship to her husband.
In her application filed in this court on 12 December 2007 the applicant provides two grounds upon which she says the Tribunal fell into jurisdictional error. The first is that the Tribunal ignored significant evidence in relation to her application. In this ground she does make mention of her husband and says that her claims for a protection visa have been tied closely to her husband’s case. But then she goes on to talk about her husband arranging for money to be given to Mr Zhang and for Mr Zhang to publish the Nine Commentaries which were matters that related to her application and which were discussed at length by the Tribunal.
Included in the grounds is the following statement:
“From October 2006, I was actually hiding in a small village in Wuyishan Mountain area. It was very difficult for me at the beginning. On one hand, Mr Zhang put all the responsibilities on my husband’s shoulder by telling the police that my husband has not only provided him major financial support from the overseas but also sent him illegal overseas publications such as the Nine Commentaries on the Communist.”
This is an extract from paragraph 13 of the applicant’s original statement so it cannot be said that it was a matter that was not before the Tribunal and I do not believe that that information could be taken as an inferential claim of imputed political opinion arising out of her husband’s situation. In any event the applicant was not believed by the Tribunal in relation to any of these matters and the Tribunal proceeded on the basis that they did not occur. As can be seen from the extract of the Tribunal’s findings the question of imputed political opinion was also referred to.
The applicant claims that the Tribunal ignored significant evidence that had been submitted by her husband to the Tribunal and to the court. There is no evidence from her husband in the material before me and I can only assume that the applicant is referring to evidence submitted by her husband to the Tribunal that he appeared before and the courts from whom he sought review. It is the applicant’s duty and responsibility to make her own case and if she wished to utilise this material she should have brought it to the attention of the Tribunal; ApplicantS214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26].
The final matter raised by the applicant was that the Tribunal’s decision, “included a reasonable apprehension of bias.” Her particulars refer to the Tribunal failing to consider her claims in relation to her fear of persecution on the ground of political opinion and failing to consider that she might be subjected to great difficulties in describing her religion in the particular circumstances of the Tribunal hearing.
“Being suffered to huge mental pressure and having some difficulty with interpreter who did not have sufficient religious knowledge about the Shouter’s, etc.”
I am quite satisfied that the Tribunal did consider the applicant’s claims in relation to her fear of persecution because of her political opinion. It discussed them with her in some detail and made reference to them at length in its decision.
The applicant has produced neither a transcript of the hearing nor a tape and the court only has the Tribunal’s record to rely on. In SZHVL v Ministerfor Immigration [2008] FCA 356 McKerracher J held at 17:
“It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”
In Minister for Immigration v MZXPA [2008] FCA 185 Sundberg J set out what is required in order to establish apprehended bias at [12] and [13]. At [14] his Honour said:
“An informed and instructed hypothetical person would also know that the Tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa.. The Tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the Tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30].”
The complaints made by the applicant in her particulars do not to my mind go anywhere towards establishing apprehended bias. The Tribunal at [CB 87] acknowledged the difficulties of proof that might be faced by some applicants for refugee protection and will be aware of the mental pressure at a hearing. Insofar as the applicant now makes a complaint against an interpreter this again has not been the subject of any evidence nor was any request for an adjournment to provide such evidence made.
In SZJZE v Ministerfor Immigration [2007] FCA 1653 Middleton J opined at [21]
“in order for the appellants to succeed they need to establish by probative evidence that:
(a)the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants. Citations omitted.”
I do not have anything before me that would assist me to make a conclusion on either of these aspects of the matter.
Before me today the applicant argued that she had a genuine belief in God, that she was involved in political activities, that she was telling the truth to the Tribunal and that she did not understand why she had not been believed. She claimed that she had really been persecuted in China and that it was unfair that the Department and the Tribunal thought that her evidence was fabricated. These complaints, whilst understandable, are effectively no more than a request for a further merits review which this court is unable to provide.
I dismiss the application. I order the applicant to pay the First Respondent’s costs assessed in the sum of $2,800.00.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: