SZMCG v Minister for Immigration

[2008] FMCA 790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 790

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

Migration Act 1958 (Cth), ss.420, 424, 424A

Minister for Immigration v Eshetu (1999) 197 CLR 611

Applicant: SZMCG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 740 of 2008

Judgment of: Driver FM

Hearing date: 16 June 2008

Delivered at: Sydney

Delivered on: 16 June 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms T Quinn
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 740 of 2008

SZMCG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 4 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China and had made claims of religious persecution. She arrived in Australia on 24 July 2007 and applied to the Minister's Department for a protection visa on 6 September 2007. A delegate of the Minister refused that application on 5 December 2007. The applicant sought a review of that decision by the Tribunal on 4 January 2008. The applicant was invited to attend a hearing before the Tribunal and did attend on 4 February 2008. She was assisted by a Mandarin interpreter, although she had requested an interpreter in the Fuqing dialect. Prior to attending the hearing the Tribunal had sought further information from her pursuant to s.424 of the Migration Act 1958 (Cth) (“the Migration Act”). At the hearing the Tribunal was concerned about the credibility of the applicant's claims and the applicant's non-responsive and vague evidence. The Tribunal found her evidence to be confused and inconsistent.

3. The Tribunal wrote to the applicant on 4 February 2008 pursuant to s.424A of the Migration Act setting out the information that the Tribunal considered could be a reason, or part of the reason, for affirming the decision under review. With the assistance of her migration agent the applicant responded in writing on 18 February 2008. The Tribunal considered that response but found it unconvincing. The Tribunal found the applicant to be a person who completely lacked credibility. The Tribunal found the applicant to have memorised her written statement and considered the applicant's claim that she was under pressure at the hearing and had difficulties understanding the Tribunal's questions. The Tribunal considered the applicant's comprehension of the questions put to her and her ability to give evidence to be selective. Because of its credibility concerns the Tribunal rejected the applicant's factual claims.

4. These proceedings began with a show cause application filed on 28 March 2008. On 30 April 2008 I gave the applicant the opportunity to file and serve an amended application and additional evidence, but she has not taken up that opportunity. I note that on 13 June 2008 the applicant attended upon her panel adviser under the Minister's Panel Advice Scheme and received advice. The applicant was, on that occasion, assisted by a Fuqing interpreter.

5. The applicant was assisted today by a Mandarin interpreter. The applicant confirmed in Court what my Associate had observed before I came on the bench which was that she and the interpreter understood one another. Nevertheless, I had extreme difficulty in eliciting oral responses from the applicant in Court. She appeared not to recognise her show cause application when I showed it to her. Nevertheless, after prompting, she adopted it.

6. I have considered whether the applicant's difficulties might stem from language problems. The applicant attended Court on 30 April 2008 with the assistance of a Fuqing interpreter. I recall that I had the same difficulty eliciting responses from her then as I had today. I am inclined to the view that the applicant's difficulties in responding stem from reasons other than language. I am satisfied that the level of assistance provided by the Mandarin interpreter today was adequate, although the applicant had requested a Fuqing interpreter. Unfortunately, no Fuqing interpreter was available.

7. I received the applicant's affidavit accompanying the show cause application. I also received as evidence the court book filed on 14 May 2008.

8. When I invited the applicant to make oral submissions in support of her application she told me that her son studies in Australia and she works here so that he can go to school. She was not able to tell me about any problems she may have with the Tribunal decision.

9. The show cause application has obviously been prepared with the assistance of someone conversant with the Migration Act. The first ground in the application is that in reviewing the protection visa decision the Tribunal failed to act according to substantial justice and the merits of the case. The particulars refer to s.420(2)(b) of the Migration Act and to s.424A of the Migration Act. The particulars assert that the Tribunal refused to consider the applicant's response to the s.424 invitation sent to her. There is no substance to the first ground of review.

10. First, a breach of s.420(2)(b) of the Migration Act would not constitute jurisdictional error, as that provision has been found by the High Court not to impose specific duties or restraints. I refer to the High Court's decision in Minister for Immigration v Eshetu (1999) 197 CLR 611 at [77]. In any event, in my view, it is not arguable that the Tribunal failed to act according to substantial justice and the merits of the case.

11. A breach of s.424A of the Migration Act would constitute jurisdictional error, but it is tolerably clear from the court book that the Tribunal met its obligations, or exceeded them. It was probably not necessary for the Tribunal to write to the applicant pursuant to s.424A to draw attention to inconsistencies, gaps or other problems with her evidence. Nevertheless, it was prudent and appropriate that the Tribunal do so given the difficulty the Tribunal had in dealing with the applicant at the oral hearing. Although the applicant claims to be illiterate, she was assisted by a migration agent and in my view setting out the Tribunal's difficulties in writing was the appropriate course.

12. The Tribunal decision establishes that the Tribunal gave consideration to the applicant's response. The Tribunal refers to that response in detail on page 102 of the court book. The Tribunal specifically acknowledged and dealt with the applicant's claim that she had been confused at the oral hearing owing to huge pressure: court book, pages 104 and 105. I reject the contention that the Tribunal failed or refused to deal with the applicant's response to the s.424A invitation.

13. The second ground in the application is that in assessing her credibility the Tribunal made its finding solely based on its assumption. The particulars contain the assertion that the Tribunal assumed that the applicant appeared to have memorised her written statement.

14. I reject the contention that the Tribunal demonstrated pre-judgement or bias. The Tribunal was in a position to assess the applicant's demeanour and responsiveness at the oral hearing. The Tribunal formed an adverse view about the applicant as a result of her performance at the oral hearing, but gave her the opportunity to explain herself better by an invitation in writing. That approach was procedurally fair and rather than demonstrating pre-judgement or bias establishes, to my satisfaction, that there was none. I reject the second ground of review.

15. In my view neither ground in the show cause application is arguable. I have considered whether there might be some other arguable ground of jurisdictional error, but on my perusal of the available material, there is none.

16. I will therefore dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

17. Costs should follow the event in this case. The Minister seeks scale costs in the sum of $2,500. The applicant appeared to doubt her capacity to pay, but that is not a reason for the Court to refrain from making a costs order. I see no reason to depart from the Court scale in this case. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 June 2008