SZMGJ v Minister for Immigration & Anor
[2008] FMCA 1454
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1454 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of China claiming fear of persecution as Falun Gong practitioners – no failure to provide appropriate level of interpretation – no reviewable error. PRACTICE & PROCEDURE – Decision referred to Migration Agents Registration Authority. |
| Migration Act 1958 (Cth) ss.91R, 424A, 474 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 |
| Applicant: | SZMGJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1226 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 October 2008 |
| Date of Last Submission: | 17 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Anniwell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,700.00.
I allow four (4) months to pay.
I DIRECT that the Registrar of the Court is to forward a copy of this decision to the Migration Agents Registration Authority.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1226 of 2008
| SZMGJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is citizen of China. She asks the Court to review a decision of the Refugee Review Tribunal. This decision was signed on 28th March 2008 and handed down on 17th April 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
In her application, which was filed on 15th May 2008, the Applicant asks the Court to make orders setting aside the decision of the Refugee Review Tribunal and having her case reviewed again by that Tribunal. She relies on two grounds; first, she says that jurisdictional error has been made and the Tribunal did not weigh her evidence. Second, she says that procedural fairness has been denied and the interpreter seemed not to translate her expressions.
Background
The background to this matter is that the Applicant arrived in Australia on 19th November 2007. She applied for a Protection visa on 27th November 2007. Her application was accompanied by a statement, which said that she had started to practise Falun Gong at the beginning of 1997, but Falun Gong was outlawed by the Chinese government in July 1999. She claimed that she had gone to Beijing to take part in demonstrations, but on 5th November 2007, several policemen broke into her house and arrested her. She claimed to have been illegally detained for a week, and at a show trial, she claimed that Falun Dafa was good, but several policemen rushed to her and hit her on her face. She claimed to have been sent to a detention centre for three months.
A delegate of the Minister for Immigration & Citizenship refused her application for a visa on 28th December 2007. The delegate set out in reasons for decision, that the Applicant's claims were brief and vague and that she had provided very little information regarding her involvement in or practice of Falun Gong. The delegate noted that the Applicant claimed to have been arrested on 5th November 2007 and sentenced a week later to three months in detention. However, the Applicant departed China on 18th November 2007, so the Tribunal considered that the date of arrest, 5th November 2007, was implausible.[1]
[1] See Court Book at page 41.
Application to Refugee Review Tribunal
After the application for a Protection visa was refused, the Applicant applied to the Refugee Review Tribunal on 29th January 2008 for a review of the delegate's decision. The Applicant did not provide any documentary evidence with her application, nor did she appoint any person as an authorised recipient for correspondence. She provided her residential address in Australia, but gave another address in the Haymarket area of Sydney as her address for correspondence. The Tribunal wrote to the Applicant on that same day, acknowledging receipt of her application. On 8th February 2008, the Tribunal wrote to the Applicant inviting her to attend a hearing before the Tribunal, to take place on 7th March 2008.
The Tribunal also wrote to the Applicant on 12th February 2008. This letter was intended to comply with the requirements of s.424A of the Migration Act. It was headed:
"Invitation to comment on/ respond to information in writing".
It set out particulars of information that the Tribunal considered would, subject to any comments or response the Applicant made, be the reason or a part of the reason for affirming the decision that was under review. The Tribunal told the Applicant why that information was considered to be relevant, and invited the Applicant to provide written comments or a response by 6th March 2008, the day before the hearing.
The Tribunal received a response to hearing invitation from the Applicant on 22nd February 2008, indicating that she wished to attend the hearing and would require an interpreter in the Mandarin language. The Applicant also, on 6th March 2008, appointed a migration agent, one Weiming Qian, to be her representative and authorised recipient. She provided a medical certificate indicating that she was unable to attend the hearing on 7th March.
The Tribunal adjourned the hearing and rescheduled it to 20th March 2008. The Applicant attended the hearing on 20th March. The Tribunal hearing record shows that the Applicant attended, and that she had an authorised representative who did not appear. The hearing record also shows that there was an interpreter in the Mandarin language qualified as at NAATI level 3. The Applicant gave evidence at the hearing.
The Tribunal handed down its decision on 17th April 2008 affirming the delegate's decision not to grant the Applicant a Protection (Class XA) visa. The Tribunal's decision record is set out in the Court Book at pages 89 through to 107. In the decision record, the Tribunal set out the Applicant's claims and evidence and noted at page 93, that the Applicant did not respond to the Tribunal's invitation to provide comments in reply to the letter written on 12th February 2008 under s.424A of the Migration Act.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out in the Court Book at pages 104 through to 107. The Tribunal noted that the Applicant had travelled to Australia on a Chinese passport, and had claimed to be a national of China. The Tribunal accepted that the Applicant was a national of China, and assessed her claims against that country as her country of nationality. The Tribunal expressed itself satisfied that the Applicant had been provided a genuine opportunity to give evidence and present arguments at the hearing. The Tribunal said:
"Despite her expressed concerns about the interpreter, she was unable to identify any problem she had experienced other than to state that lengthy sentences were reduced to one word. A transcript of the hearing tape will indicate that it is not the case. The Tribunal is satisfied that the interpreter, who is a NAATI accredited professional interpreter, acted competently and professionally and, further, that the applicant's responses flowed from the Tribunal's questions, indicating her understanding of such questions. Similarly, the Tribunal felt that it was able to understand the applicant's responses effectively. The Tribunal formed the view that the applicant's request for other interpreter was little more than an attempt to further prolong the review process and was not a bona fide complaint by the applicant about the level of interpreting. In these circumstances, the Tribunal is satisfied that the applicant was provided with an adequate level of interpreting.”[2]
[2] See Court Book at page 104.
The Tribunal found the Applicant not to be a credible witness, and formed the view that she had memorised a set of claims and had difficulty responding to the Tribunal's questions which went beyond those claims. The Tribunal found the Applicant's claims to be vague and generalised, and found the Applicant to be evasive in her responses. The Tribunal also stated that the Applicant's evidence often changed in response to the Tribunal's concerns. The Tribunal noted that the Applicant's knowledge of Falun Gong doctrines was limited and found many aspects of her claims to be completely implausible. It did not accept her account of having travelled to Beijing to participate in a demonstration, and found parts of her evidence not to be consistent with available country information.
The Tribunal found that the Applicant had difficulty in remembering the names of the fourth and fifth Falun Gong exercises and indicated that she could not state the verses that were recited. The Tribunal acknowledged that the Applicant did show some knowledge of Falun Gong and was able to name some of the exercises and perform one of them. The Tribunal was of the view that that knowledge was consistent with the Applicant's claim that she had been engaged in the practise of Falun Gong in Australia and accepted that she had been involved in that practise in Australia.
The Tribunal also accepted that the Applicant may have been involved in other Falun Gong related activities in Australia, however the Tribunal found the Applicant not to be a credible witness and was not satisfied that the Applicant's involvement with Falun Gong in Australia was otherwise than for the purpose of strengthening her claims to be a refugee.
Accordingly, the Tribunal disregarded this conduct in accordance with sub-section 91R (3) of the Migration Act.
The Tribunal also noted that the Applicant said that she had received advice from an agent named Lu Song Tao to whom she had paid a fee. The Tribunal noted the Applicant's claim that she was told not to disclose that person's identity but to state she had received assistance from an overseas student. The Tribunal was aware that this person was not the migration agent whom the Applicant had appointed on
6th March 2008.
In respect of the activities of the former agent, Lu Song Tao, the Tribunal said:
“The Tribunal is concerned that the applicant, as many others in her circumstances, may be misled by those operating within the migration industry, who do not comply with their professional or ethical obligations. This may be a matter of interest to the Migration Agents Registration Authority.”[3]
[3] See Court Book at page 106.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant a Protection Class (XA) visa.
Application for Judicial Review
The Applicant on 15th May 2008 commenced proceedings in this Court by filing an application and an affidavit. She has not filed any amended application nor has she filed any written submissions but she has attended Court and made submissions today as well as answering questions from the Bench.
The Applicant has told the Court that if she were to go back to China she would be persecuted. She complained about the interpreter at the Tribunal hearing and said that the interpreter did not come from the same area as she did. She said she was from Shanghai and the interpreter was from Fujian. She said that she had said so many things at the hearing it was impossible for the interpreter to put into one sentence words that would cover everything she had said.
She also said that she had her initial documents, including her statement accompanying her Protection visa application, prepared by her former migration agent. She complained that she raised that with the Tribunal Member and said she would like to change that statement but was not allowed to do so.
In submissions in reply the Applicant reiterated her claim that she did not think that the interpreter understood her very well. She conceded that the interpreter spoke Mandarin and conceded that that is the official language of China, but she reiterated her claim that the interpreter did not understand what she was talking about and did not translate her evidence to the Tribunal correctly.
The Tribunal did not accept the Applicant's claims and formed an adverse view of the Applicant's credibility. It was for those reasons that the Tribunal did not accept the Applicant's claims.
Dealing with the Applicant's grounds of review as set out in the application Ms Anniwell, who appeared for the Minister, submitted that the Applicant's first ground was meaningless and in respect of the second ground, the claim of denial of procedural fairness, noted that the application to the Tribunal was governed by s.422B of the Migration Act, so that Division 4 of Part 7 of the Act exhaustedly sets out the requirements of the natural justice hearing rule in relation to the matters dealt with in that division. She submitted that there was no indication that the Tribunal had failed to fulfil any of the statutory requirements of that division.
In respect of the Applicant's claim that her evidence was not correctly interpreted and she was denied a proper hearing, Ms Anniwell noted that the Applicant had not filed any evidence or a transcript of the Tribunal hearing in support of that ground of review and that on a fair reading of the Tribunal's decision records the Applicant was assisted by a qualified Mandarin interpreter and initially did not appear to have any difficulties communicating with the interpreter and was responsive to questions asked of her.
It was further submitted that the Applicant's claim that she was not allowed to correct a document submitted by her first migration agent did not appear from the Tribunal decision record and had the Applicant wished to do so she could have made those amendments orally at the hearing.
Ground 1
Dealing with the first ground, the Applicant says the jurisdictional error has been made; the RRT did not weigh her evidence. This ground, such as it is, appears to be a claim that the Tribunal did not consider the Applicant's evidence or did not give her evidence sufficient weight. It is not made out by the Tribunal decision record. It is clear that the Tribunal did consider the Applicant's claims to fear persecution on the basis that she was a Falun Gong practitioner and asked the Applicant a number of questions about those claims.
In the end the Applicant's claim was not found to be credible by the Tribunal. This is a matter entirely for the Tribunal. The question of credibility is a factual matter par excellence as has been set out by McHugh J in the High Court of Australia in Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham[4]. The Court does not consider challenges to the factual basis of the Tribunal's decision. The Court does not engage in merits review in an application for judicial review.
[4] (2000) 168 ALR 407; [2000] HCA 1
The Applicant's first ground has not been made out.
Ground 2
The Applicant's second ground relates to an alleged failure by the interpreter to interpret at the hearing. The Applicant raised that claim at the hearing. The Tribunal considered it and rejected it. The Tribunal, in the decision record at pages 97 and 98, noted the claim and asked the Applicant to identify any specific problems. The Tribunal noted the Applicant said that it was not possible to shorten a long sentence into one word but the Tribunal noted that that did not appear to have happened and asked the Applicant to identify any particular concerns. The Tribunal offered to adjourn the hearing briefly to enable the Applicant to provide an example of an error in interpreting but the Applicant declined that offer, stating:
“She said that since the Tribunal was biased there was no need for an adjournment.”[5]
[5] See Court Book at page 98
In my view the Tribunal considered the Applicant's claim of failure by the interpreter, investigated that claim, offered the Applicant a short adjournment to identify and specify the claim, but then rejected it.
I am satisfied that the Tribunal did not fall into error in the way it dealt with that claim.
Ground 3
The Applicant has also claimed that the Tribunal did not allow her to change an incorrect document provided with her initial application. The Tribunal dealt with that issue at page 93 of the Court book:
“The Tribunal asked the applicant to confirm that the information she had provided with her protection visa application was correct. The applicant said that the date on her application was wrong. The previous agent wrote 5 November 2007 while it should be 5 November 2001. She said that all other information contained in her application was supplementary and the Tribunal can ask her questions about it. She said that the information she provided should be correct. The migration agent asked her questions and completed the form but she did not understand English. She said that she used a migration agent called Lu Song Tao. The Tribunal pointed out that it was not noted on the visa application form that she used a migration agent or that she was assisted by one. She said that her agent told her not to disclose this information but only to state that he was a university student and there were mistakes but she had to tell the truth. The applicant confirmed that she paid a fee for the agent's services and she produced a receipt to the Tribunal.”[6]
[6] See Court Book at page 93
In my view the Applicant's claim that she was not able to correct incorrect information provided by her initial migration agent has not been made out. The Tribunal did permit the Applicant to make those corrections and, in my view, correctly investigated the Applicant's claim that she had been misled by a person who claimed to be a migration agent.
Conclusions
It remains a matter of great surprise that anyone could believe that if they enlist the services of a migration agent and pay a fee for the services of a registered migration agent that the agent should say that the person should not only not disclose that fact but should actually tell a lie to say that they had been assisted by an overseas student. It is a matter of great astonishment that anyone could accept that explanation without being highly suspicious of it.
The Tribunal has expressed concerns about the actions of the person named Lu Song Tao and expressed a view that this may be a matter of interest to the Migration Agents Registration Authority. With respect, I agree. I intend to direct that the Registrar of this Court should bring this Court's decision to the attention of the Migration Agents Registration Authority in respect of the person named Lu Song Tao.
I am satisfied that the Tribunal did not fall into any jurisdictional error. The Tribunal complied with the provisions of s.424A of the Migration Act. It is unfortunate that the Applicant did not reply to the s.424A letter but that does not indicate any fault on the part of the Tribunal.
The Tribunal invited the Applicant to attend the hearing and provided an accredited interpreter in Mandarin, the official language of China, to assist the Applicant. The Applicant's claims that the interpreter failed in that task were rejected by the Tribunal and have not been made out in this Court.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act.
Accordingly, relief in the form of certiorari or mandamus which is what the applicant seeks is not available. The application will be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 October 2008
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