SZMGT v Minister for Immigration
[2008] FMCA 1592
•28 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMGT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1592 |
| MIGRATION – VISA – Protection (Class XA) visa – Refugee Review Tribunal – application to review decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – citizen of China claiming well founded fear of persecution on the basis of her religion – no evidence of bias – privative clause – no reviewable error. |
| Migration Act 1958 (Cth), ss.65, 422B, 425 |
| SZEIV v Minister for Immigration and Multicultural & Indigenous Affairs [2006] FCA 1798 referred to SZGLU v Minister for Immigration & Citizenship [2007] FCA 363 referred to |
| Applicant: | SZMGT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1252 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 October 2008 |
| Date of Last Submission: | 28 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2008 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1252 of 2008
| SZMGT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of the People's Republic of China. She asks the Court to review a decision of the Refugee Review Tribunal that was signed on 2 April and handed down on 22 April 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicant a protection (Class XA) visa.
The applicant asks for an order that the Tribunal decision be set aside and her application for a visa be remitted to the Refugee Review Tribunal for consideration according to law.
The applicant sets out five grounds of review.
(1)The Tribunal failed to act judicially and afford procedural fairness;
(2)The Tribunal applied the wrong test;
(3)The Tribunal focussed on irrelevant issues and ignored relevant material;
(4)The Tribunal has breached s. 425 of the Migration Act;
(5)The Tribunal has failed to investigate the applicant's genuine claims.
The background to this matter is that the applicant arrived in Australia on 15 August 2007. She applied for a protection (Class XA) visa on 27 September 2007. She claims a well founded fear of persecution on the basis of her religion. In a statement submitted with her application for a protection visa the applicant claimed that she was a pious Christian and a member of an underground church.
In her statement she set out that in 1984 she found out that her husband was possessed. He became very violent and abusive. The applicant claims to have taken her husband to consult many doctors in hospital, including a psychiatric hospital, but the possession was not curable. She claimed that a neighbour, who was also a doctor, examined her husband by taking his pulse, and based on that examination confirmed that there was nothing medically wrong with the applicant's husband, but he was indeed possessed.
The applicant claimed that the neighbour confessed that this had in fact happened to him and he was only relieved of his possession after he believed in Jesus, because Jesus heals the sick. The applicant claimed in her statement that from about September 1984 she too started to believe and commenced attending a church and soon her husband was back to normal.
In her statement she claimed to have commenced leasing a shop in 1996 and in June 2004 converted the shop so that it had a secret room on an upper level so that she could have religious gatherings secretly. In her statement the applicant claimed that in March 2007 her shop was raided by the local police. She was accused of having an illegal religious gathering and her business was forced to be closed. The applicant claimed that she found it impossible to live without her religious belief and travelled to Australia and cannot return to China because of her fears of being persecuted continuously.
A delegate of the Minister for Immigration & Citizenship refused to grant the visa on 3 December 2007. The applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision on 24 December 2007. The Tribunal wrote to the applicant on 9 January 2008 in a letter headed "Invitation to appear before the Tribunal". In that letter the Tribunal invited the applicant to attend a hearing on 15 February 2008. The letter said:
Interpreter: You have requested a Fujian interpreter. The Tribunal notes that Fujian is a province in the People's Republic of China. Please specify which dialect is required on the enclosed ‘Response to Hearing Invitation’ form and return to the Tribunal by 25 January 2008[1].
[1] See Court Book at page 98
A case note appears in the Court Book at page 100. An officer of the Tribunal, whose name is not given records contacting the applicant with the aid of a Mandarin interpreter from the telephone interpreting service. The officer of the Tribunal says:
I contacted the applicant via TIS (Mandarin) and asked her what dialect interpreter she would prefer as she had requested at Fujian interpreter. She stated she wanted a female Fuqing interpreter and asked whether the Member was female. I confirmed the Member was female[2].
[2] See Court Book at page 100
The Tribunal wrote to the applicant on 21 January 2008 advising her of a change of date of the hearing. The letter said:
We note that when we contacted you by phone on 17 January 2008 you made an oral request for a female Fuqing interpreter. The Tribunal has found a suitable interpreter, however this interpreter is not available on 15 February 2008. The hearing has been rescheduled and the new hearing date and time are set out below[3].
[3] See Court Book at page 101
The hearing was set for 9.30 am on 13 March 2008 and the applicant later returned a response to hearing invitation form to the Tribunal. A date stamp on the response to hearing invitation shows that it is dated 27/02/2008. In answer to the question "Do you need an interpreter?" a tick was placed in the box marked "Yes", and in answer to the questions "Language" and "Dialect if applicable", the words "Chinese" and "Fujian" have been written[4].
[4] See Court Book at page 103
The applicant attended the hearing on 13 March 2008. She brought her Chinese passport with her. She gave evidence to the Tribunal. The Tribunal hearing record shows that the applicant attended the hearing on 13 March 2008. There is a box on the RRT hearing record form for details of interpreters. The box requires the name of the interpreter and the agency from which the interpreter came, the language or dialect, the NAATI level, and I understand that NAATI stands for National Australian Association of Translators and Interpreters, the NAATI number, whether the interpreter required an oath or an affirmation, the time when the interpreter arrived and commenced interpreting, and when the interpreter left.
The form indicates that one Linda Chen from the On Call Agency in Sydney attended. Her language or dialect is Fuqing (Chinese). NAATI level is shown as "not accredited". NAATI number is 27785[5].
[5] See Court Book at page 105
The Tribunal signed its decision on 2 April and handed it down on 22 April 2008. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. In the Tribunal decision record the Tribunal sets out the applicant's claims and evidence from the original application. The Tribunal has this to say about the conduct of the Tribunal hearing:
The applicant appeared before the Tribunal on 13 March 2008 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese (Fuqing dialect) and English languages[6].
[6] See Court Book at page 120
The Tribunal set out a detailed summary of the applicant's oral evidence to the Tribunal which commences at page 120 of the Court Book and goes through to page 124. The Tribunal set out independent country information about registered and unregistered protestants in China at pages 124 and 125 of the Court Book.
In the Tribunal's findings and reasons the Tribunal expressed itself to be satisfied that the applicant is a citizen of China. The Tribunal noted that the applicant had claimed to be in need of protection because she is a member of an underground Christian church in China. The Tribunal then proceeded to set out its reasons and the Tribunal noted:
The Tribunal asked the applicant a number of questions about Christianity which she was able to answer without difficulty[7].
[7] See Court Book at page 125
The Tribunal referred to the applicant's written statement of claims and stated:
In her original application the applicant claimed to have suffered persecution by the authorities in China. She claimed that in March 2007 her shop, where she held secret gatherings, was raided by the local police. She claimed that the police accused her of having illegal religious gatherings and that as a result her business was forced to be closed. As noted above the applicant told the Tribunal that she could not be certain the information in her written application was correct[8].
[8] See Court Book at page 126
The Tribunal then went on to say:
During the hearing the applicant told the Tribunal that she did not experience any problems with the authorities in China. She said that her shop was not raided and that she closed her shop because she came to Australia and there was no-one to look after it. She told the Tribunal that she had no difficulty leaving Australia. For the reasons outlined above the Tribunal prefers the applicant's oral evidence and finds that she has not experienced any problems with, or any harm from, the authorities in China[9].
[9] See Court Book at page 126
The Tribunal noted that the applicant, when asked why she was scared to return to China, or what harm she feared in the future, the applicant replied "because she wished to stay in Australia and that Australia is quite good", and later "the applicant essentially replied that she likes Australia and would like to stay".
The Tribunal found that based on her responses the applicant did not have a genuine subjective fear of persecution for reasons of her religion. The Tribunal found there was no real chance of the applicant being persecuted in the future for reasons of her religion and found that she did not have a well founded fear of persecution for a convention reason and did not meet the definition of a refugee. The Tribunal affirmed the delegate's decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court by means of an application and an affidavit in support on 16 May 2008. She has not filed any further documents and has not filed a written outline of submissions. The applicant attended Court today and made oral submissions with the assistance of an interpreter in the Fuqing dialect. The applicant told the Court that what she told the Tribunal really happened to her. She said that "the religious bureau people came to my church to stop us from preaching in the church. They did not allow us to preach". She told the Court that this happened in 2003.
In answer to a question from the Bench about her claim that the Tribunal did not provide her with an interpreter in the Fuqing dialect the applicant reiterated that she was not able to give her evidence because of the difficulties with the interpreter. She said that she told the interpreter before the hearing started that she could not understand her, but she did not tell the Tribunal Member that she had any difficulty understanding the interpreter and she told the Court that she was scared to tell the Tribunal that she could not understand the interpreter.
Ms McDonald, solicitor, who appears for the solicitor, submitted that the applicant's claim made to the Court today that the police or the religious bureau people had raided the church in 2003 was never made to the Tribunal and that it was inappropriate to seek to introduce fresh evidence in the Court on hearing an application for judicial review.
Dealing now with the applicant's grounds that the Tribunal failed to act judicially and afford procedural fairness, I am of the view that there is nothing in the Tribunal decision record to show a failure of procedural fairness. Procedural fairness is of course restricted to the matters covered by s. 422B of the Migration Act and the Court must look at the question as to whether the Tribunal has committed any breach of or fail to comply with any particular sections of the Migration Act that go to procedural fairness or for that matter the natural justice hearing rule.
The applicant claims in her second ground that the Tribunal applied the wrong test. Particulars of that claim are that the Tribunal misunderstood and failed to apply the correct test for a well founded fear of persecution. The particulars claimed that the Tribunal misunderstood and failed to apply the correct test in order to be satisfied whether the applicant had a well founded fear of persecution for a convention reason; and further applied the wrong test in determining the relevant facts of the individual case must be supplied by the applicant himself or herself in as much detail as is necessary to enable the decision maker to establish the veracity and merits of the claim.
The fact is that a claim for a visa must be considered in the light of s.65 of the Migration Act.If an applicant satisfies the Minister or the Tribunal standing in the shoes of the Minister that the applicant meets the requirements for a visa then the applicant must be granted the visa. If the applicant does not so satisfy the Minister or the Tribunal then the application for a visa will be refused.
The applicant made certain claims, both in writing and in oral evidence to the Tribunal. The Tribunal considered those claims and, where the claims were inconsistent, preferred the applicant's oral evidence to the Tribunal to the written claims in the application for a protection visa. It was open to the Tribunal to do this. It is well established that where an applicant's oral evidence is different to the applicant's written claims it is open to the Tribunal to conduct the review on the basis of the claims advanced at the hearing.
The authority for this proposition comes from two decisions of the Federal Court on appeal from the Federal Magistrates Court. In each case, coincidentally, they are decisions of Bennett J. In SZEIV v Minister for Immigration & Multicultural and Indigenous Affairs[10] her Honour held, at [34]:
Where a claim has been made to the delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the delegate's decision, but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicant's do not make that claim or a case based on that claim[11].
[10] [2006] FCA 1798
[11] SZEIV v Minister for Immigration and Multicultural & Indigenous Affairs [2006] FCA 1798
See also SZGLU v Minister for Immigration & Citizenship[12] at [20] where her Honour said:
The Tribunal is conducting a review of the delegate's decision, but that review is conducted on the basis of the claims advanced in materials before the Tribunal(SZEIV v Minister for Immigration and Multicultural & Indigenous Affairs [2006] FCA 1798 at [34]).
[12] [2007] FCA 363
In this case the Tribunal decided that the applicant did not have a subjective fear of persecution. In the circumstances it was unnecessary for the Tribunal to consider any other matters related to any well founded fear. The Tribunal found that the applicant did not have a fear.
I am referred to the decision of SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs[13] where a majority of the Full Court, focussing on the elements of the refugee definition concluded that where a subjective fear of persecution is not established the Refugee Review Tribunal did not err in failing to consider whether the fear was objectively well founded.
[13] [2003] FCAFC 120
The applicant claims that there was a breach of s.425 of the Migration Act. The applicant was invited to attend a hearing of the Tribunal to give evidence and present arguments. The Tribunal asked her what sort of an interpreter she wanted. The Tribunal specifically asked her, by means of an officer of the Tribunal telephoning the applicant, and by means of the Tribunal writing to the applicant. The applicant said that she wanted an interpreter in the Fuqing dialect which is spoken in Fujian province and that she wanted a female interpreter. That is what she got.
The Tribunal informed the applicant that it had found such an interpreter and postponed the hearing from 15 February to 13 March 2008 to enable that particular interpreter to attend. The Tribunal was satisfied that the interpreter was capable of interpreting in the Fuqing dialect and there is nothing in the Tribunal decision record to say that the applicant indicated at any time that she was having trouble understanding the Tribunal's questions or was having trouble giving evidence because of difficulties of interpreting.
Indeed, the applicant told the Court that she did not raise that issue with the Tribunal. The Tribunal noted that the applicant was asked questions about Christianity which she was able to answer without difficulty. The applicant has not established her claim that she was provided with an interpreter in the Mandarin language instead of in the Fuqing dialect. That ground must fail.
The applicant claims in ground 5 that the Tribunal failed to investigate the applicant's genuine claims. It is well established that the Tribunal has no obligation to conduct its own investigation. The applicant claims that the Tribunal focussed on irrelevant issues and ignored relevant material. There is no evidence of this whatsoever. The applicant has not pointed out what irrelevant issue the Tribunal focussed on, and has not pointed out what relevant material the Tribunal ignored.
A reading of the Tribunal decision record shows that the Tribunal was well aware of the substance of the applicant's claims and considered those claims. It did go to the extent of obtaining independent information about members of an underground church in China and how such people are treated. If the applicant wished the Tribunal to consider any other information it was up to the applicant to provide it. the applicant did not do so.
I am mindful of the fact that the applicant is not legally represented and my reading of the Tribunal decision does not disclose any arguable case for jurisdictional error. It follows that the Tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $3500. This is an appropriate case to make an order for costs and the amount sought is within the scale.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 1 December 2008
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