SZMCA v Minister for Immigration - [2008] FMCA 727

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 727

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A

Applicant:

SZMCA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 708 of 2008

Judgment of:

Driver FM

Hearing date:

2 June 2008

Delivered at:

Sydney

Delivered on:

2 June 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Hanstein
Australian Government Solicitor

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 708 of 2008

SZMCA

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 on 28 February 2008. 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 claimed persecution on various bases. He arrived in Australia on 30 January 2007 and applied to the Minister's Department for a protection visa on 6 August 2007. That application was refused by a delegate of the Minister on 27 August 2007. On 3 October 2007 the applicant sought review of that decision by the Tribunal.
The applicant was invited to attend a hearing before the Tribunal, and did attend on 20 November 2007. It is obvious from the record of the Tribunal decision that the Tribunal took an extremely adverse view of his credibility as a result of hearing him give his evidence. The Tribunal concluded that the applicant had no credibility at all. Relevantly, the Tribunal stated[1]:
The Tribunal can only conclude that the applicant has no credibility whatsoever and none of his claims to being either a persecuted Chinese Christian, or political refugee and rebel whose protests against the poor compensation offered by the China (PRC) authorities caused him to be detained and summonsed to appear in Court after his arrival in Australia are credible or persuasive. The Tribunal finds he is a totally unreliable witness - as the oral evidence (see above) will attest. The Tribunal finds his most recent submissions are unpersuasive and indicative of an attempt to enhance his claim for protection at this review by making new and previously undisclosed claims. In this he has admitted to being assisted by persons whose identity he will not reveal but who appear from his oral evidence to be part of a China (PRC) derived people smuggling racket.
[1] court book, page 119
The Tribunal went on to disregard the applicant's conduct in Australia intended to support his protection visa claims. The Tribunal was prepared to accept that the applicant may have breached the Chinese one child policy, but did not consider that the imposition of a fine or fines constituted serious harm for the purposes of s.91R(1)(c) of the Migration Act 1958 (Cth) (“the Migration Act”).
These proceedings began with a show cause application filed on 26 March 2008. That application sets out two grounds of review. The first is an assertion that the Tribunal did not send the applicant a letter explaining doubts before it made its final decision. The second is an assertion of a denial of procedural fairness because of a failure to pay regard to certain evidence. The application was accompanied by an affidavit containing assertions, which I accepted as a submission.
I have before me as evidence a book of relevant documents filed on 9 May 2008 and a bundle of documents provided by the applicant at the first court date in this matter on 29 April 2008[2]. That bundle is said to be translations of untranslated documents provided to the Tribunal. The applicant asserts that the translations are of the documents appearing on pages 59 to 65 of the book of relevant documents.
[2] exhibit A1
There is no substance to the claim of error based on the Tribunal's failure to send the applicant a letter setting out its doubts about his claims. There was no such obligation on the Tribunal. The Tribunal decision turned on the Tribunal's disbelief of the information provided by the applicant in support of his claims. Section 424A of the Migration Act did not require the disclosure of that information to the applicant because it came from the applicant for the purposes of the review. To the extent that there was any obligation on the Tribunal to disclose its concerns orally, it is obvious from the record of the Tribunal hearing in the Tribunal decision that those doubts were pointedly expressed. The Tribunal made it abundantly clear to the applicant that it did not believe what it was being told.
As to the assertion of a want of procedural fairness, I accept that the applicant did provide to the Tribunal some documents in the Chinese language which were not translated at the time of the Tribunal hearing. I accept, as the applicant asserted from the bar table, that he was asked by the Tribunal member to explain what those documents were. The Tribunal alludes to at least some of the documents in its decision[3]. The applicant asserts that the most important of those documents was a sentence of life imprisonment from the People's Court of Fuqing City. Interestingly, exhibit A1 includes an English translation of a version of that document which is somewhat different from that which appears on the court book. Nothing material may turn on that in that the document in exhibit A1 is described as a "manhunt notification" and a sentence of life imprisonment due to a failure to report to the Court, whereas the document on page 85 of the court book, and translated on page 86 of the court book, is described as a "notice of arrest after summons after committing a crime". The fact is that the document in the court book was translated on 11 February 2008 according to the handwritten notation on it. That translation would have been available to the Tribunal prior to handing down its decision.
[3] See, for example, court book, pages 103, 108 and 118
I am satisfied from what appears on page 118 of the court book that the Tribunal was aware of the asserted significance of that document. It appears, however, from the Tribunal decision that this is an example of a poisoned well. The Tribunal was not persuaded by any of the applicant's documents bearing on his political and religious claims because it found his oral evidence to be completely devoid of any credibility.
The applicant attended Court with a plastic bag full of documents. He asserted from the bar table that the documents all support his claims to be a refugee. I invited him to refer those documents to the Minister's Department should he wish them to be further examined.
During the course of the hearing today the applicant began speaking in the Fuqing dialect. When this was drawn to my attention by the interpreter, the applicant asked for an interpreter familiar with that dialect. I pointed out to him that in his application to the Court, and in his information sheet, and in his request to participate in the Minister's Panel Advice Scheme, the applicant had consistently asserted that he spoke Mandarin. He asserted that that had been put on his forms by someone else, but it was he who completed the information sheet and request to participate in the Panel Advice Scheme when he attended court on 29 April 2008. I note also from the book of relevant documents that in his protection visa application, and in his application to the Tribunal, and in his response to the hearing invitation issued by the Tribunal, the applicant consistently claimed to speak Mandarin and requested a Mandarin interpreter. The applicant asserted that he did not know that he was able to request a dialect speaking interpreter. I reject that assertion. I think it likely that the applicant was seeking to obtain an adjournment by raising the issue of dialect at today's hearing. I note that at the Tribunal hearing the applicant stated that he could not understand Mandarin Chinese properly and that he grew up in a rural address[4]. However, that statement appears to have been made in an attempt to explain inconsistencies in his written claims. There is no indication in the material before me that the applicant raised any issue of interpretation at the Tribunal hearing where he was assisted by a Mandarin interpreter.
[4] court book, page 96
While the Tribunal expressed itself in strong terms in rejecting the applicant's credibility, in my view, the conclusions reached by the Tribunal were open to it on the material before it. The Tribunal did its best to obtain from the applicant an explanation of the untranslated documents he had provided and he was questioned at length about his claims at the Tribunal hearing.
In my view, the procedure followed by the Tribunal was fair. I find that the applicant has failed to raise an arguable case of jurisdictional error.
Accordingly, I dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,000. The applicant repeated his assertion that his claims were genuine and that his documents are authentic. For the first time he raised an assertion that he had not received advice under the Minister's Panel Advice Scheme. I am unable to say whether that is so or not. That does not bear on the issue of costs in any event. I accept that costs of not less than $2,000 have been reasonably and properly incurred on behalf of the Minister in dealing with this application. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in that amount.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 4 June 2008