SZMAQ v Minister for Immigration

[2008] FMCA 1192

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMAQ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1192

MIGRATION – RRT decision – Chinese applicant claiming political and religious persecution – disbelieved by Tribunal – no defect in interpreting established – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723

Applicant: SZMAQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 600 of 2008

Judgment of: Smith FM

Hearing date: 14 August 2008

Delivered at: Sydney

Delivered on: 14 August 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Knackstredt

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 600 of 2008

SZMAQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in May 2007, and on 7 June 2007 he applied for a protection visa against return to the People’s Republic of China. A typed insertion in the visa application explained his fears of persecution. He said that his grandfather had been a member of the Kuomintang Party (“KMT”), and had been mistreated during the Cultural Revolution. His father had suffered in employment as a result, and:

   My close family members, ie, parents, my sibling, and of course I were badly treated when it came to schoolings and jobs as if my family belonged to a social group, in our case, with Kuomintang connection. 

2. The applicant suggested that this background also caused him to suffer in two encounters with the police.  The first was in July 2003, when he was arrested after visiting a masseuse, and he was assaulted by police.  The second was in 2005, when his wife telephoned him to tell him to attend at a police station.  When he did this, “they put me into the cell” as the main suspect in a failed bank robbery, “because I resembled one of the robbers”.  His statement said: “they arrested the one who committed the robbery one year later and only then I was released”.  He was unable to sue for compensation due to lack of money. 

3. The applicant claimed that his family’s political history also prevented his receiving income support and “monthly milk money” for his child. 

4. The applicant said that in 2006, he was invited by a voluntary church worker in an underground church to join his church work.  The applicant went with him to a “preacher’s”, but the meeting was raided by police and the applicant escaped.  His statement said: 

   Later on I found out the other people were arrested and convicted of illegal gathering and disturbing public order.  Police were also looking for me and I had to stay with a relative family in a village. 

5. The visa application clearly claimed that the applicant was a Christian by religion, and stated in relation to his experiences in 2006: 

   During that time, both my wife started studying Bible and went on to become Christian.  I also travelled with other church workers to various places distributing Bibles secretly and spreading Christian message. 

6. The applicant claimed to fear persecution on return to China “because of my new‑found faith along with my family’s political stigma”. 

7. The applicant gave to the Department two documents in Chinese purporting to corroborate his 2005 detention, and that the applicant was wanted in relation to an illegal religious gathering in 2006. 

8. A delegate refused the application on 20 August 2007.  The delegate referred to the claims as being vague and unsubstantiated, and did not give weight to the documents due to the prevalence of suspect documentation.  The delegate was not satisfied that the applicant’s situation regarding his Christian faith was as claimed, and thought that the fact that the applicant could legally and recently depart China suggested that he was not of significant adverse interest to Chinese authorities. 

9. The applicant appealed to the Tribunal and attended a hearing on 27 November 2007.  He was sent the tapes of the hearing two days after the hearing. 

10. After the hearing, the applicant was sent a written invitation to comment on some matters, including the basis on which he had been granted his tourist visa in China, country information suggesting that people with KMT associations were no longer at risk in China, and particular concerns arising from the evidence given by the applicant at the hearing.  The applicant did not respond to that invitation. 

11. The Tribunal handed down a decision on 29 January 2008, in which it affirmed the delegate’s decision.  Its statement of reasons contains a lengthy description of the applicant’s evidence given at the hearing.  The applicant has not presented a transcript or other evidence to challenge this description. 

12. There is no suggestion in the Tribunal’s description of the hearing that there was any difficulty encountered during the hearing arising from the competence of the Mandarin interpreter.  In the course of his evidence the applicant said many inconsistent things, and also made statements inconsistent with his original visa statement.  For example, he denied having become a Christian, and claimed that he had only been to one Christian gathering, being the one which was raided by police.  When inconsistencies with the original statement were put to the applicant, the applicant blamed “translation error” at the time that the visa statement was prepared.  However, there is no suggestion that he made any complaints about the translation occurring at the hearing. 

13. In its “Findings and Reasons”, the Tribunal accepted that the applicant was not a Christian, but noted his claim to be at risk of persecution for attending one illegal Christian gathering in December 2006.  It also noted his claims based on imputed political opinion or membership of a particular social group, arising from his family’s connection with the KMT. 

14. However, the Tribunal said it was satisfied that the applicant was not a credible witness.  It said: “overall the Tribunal found his evidence to be inconsistent and implausible”.  It noted particular matters of concern.  Some of these might appear minor, but cumulatively, in my opinion, they fully supported its conclusion as to the applicant’s credibility. 

15. The Tribunal said that, as a result of its adverse credibility finding, it did not accept any of his claims to have suffered persecution, even to the extent that they had been maintained in the course of the hearing.  It rejected his claim to have been detained as a suspect in an attempted robbery, or to have been mistreated in 2003 because of his grandfather’s connection to the KMT.  It did not accept that he had been detained for a year.  It did not accept that he had attended a Christian gathering at any time.  It said that it was not satisfied that the applicant had suffered any Convention‑related harm, nor that there was a real chance of such harm occurring to the applicant in the reasonably foreseeable future.  

16. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration.  I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia. 

17. The applicant has filed only one application showing the grounds he relies upon.  This states:  

    1.The Tribunal officer had bias against me because my claims are not been translate properly.  

    2.Tribunal fail to use a unproperly interpreter which misunderstood my claims. 

    3.The information which Tribunal hold are out of date.  The Tribunal used the out date information to consider my application and made the wrong decision.  

18. I have allowed the applicant the fullest opportunity to present evidentiary support for the first two grounds.  I did not dismiss his application at a show‑cause hearing, but gave directions allowing him further time to file an amended application and evidence.  On that occasion, I explained to him that he should consider whether to present to the Court evidence of a transcript and from a translator as to the quality of the interpretation services obtained by the Tribunal at the hearing.  However, he has not taken that opportunity. 

19. I am therefore left with no evidence to support Grounds 1 and 2, and I do not accept them.  There is no evidence before me which can support a claim that anything in the course of the Tribunal’s proceedings might cause a reasonable apprehension of bias, or prove actual bias. 

20. In relation to the interpreter, according to the Tribunal’s records, a properly qualified interpreter at NAATI Level 3 was employed in the appropriate language, and there is no evidence bringing the present case within authorities such as are cited in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723, or in M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212.

21. The applicant today explained these grounds only by referring to the fact that the interpreter was pregnant, and he did not feel that she “did a good job”.  However, he could not give any substance to these general criticisms, to show that the interpretation was in any way incompetent or defective. 

22. The third ground in the application does not specify the information which is referred to.  It appears to me that the Tribunal has taken into account relevant general and country information, and certainly information that was open to it to consider.  I consider that this ground does no more than argue with the merits of the factual conclusions arrived at by the Tribunal, but it is not the task of the Court to revisit those factual issues. 

23. For the above reasons, I am not persuaded that the Tribunal’s decision is affected by any jurisdictional error.  I must therefore dismiss the application. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  28 August 2008