SZMHA v Minister for Immigration
[2008] FMCA 1535
•12 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMHA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1535 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – Falun Gong practice – applicant not believed – alleged inconsistency between what the applicant said at a departmental interview and what he said at the Tribunal hearing – applicant contesting the accuracy of the translation at the departmental interview – presiding member listened to sound recording of the interview but refused the applicant’s request to play the sound recording at the Tribunal hearing – error in translation at the departmental interview was made but would not have affected the outcome – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R(3), 242AA, 425 |
| SZKOB v Minister for Immigration [2007] FCA 1949 |
| Applicant: | SZMHA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1271 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 12 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant’s name is not to appear on the transcript of the hearing.
The transcript of today’s hearing is to be obtained, placed on the file and made available for inspection by the parties and their legal representatives.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1271 of 2008
| SZMHA |
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 22 April 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the application a protection visa.
The applicant is from China and had made claims of persecution based upon the practice of Falun Gong. Relevant background is set out in the Minister's original written submissions filed on 6 August 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 to 4 of those submissions:
The applicant arrived in Australia on 22 October 2007: court book (“CB”) 42.6, and applied for the visa on 2 November 2007: CB 1-35. The delegate interviewed the applicant on 10 December 2007: CB 46.1, and refused the visa on 21 January 2008: CB 40-55. The applicant applied to the Tribunal for review on 13 February 2008: CB 56-59. The Tribunal held a hearing on 7 April 2008: CB 74-75, at which it provided the applicant with information pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”): CB 99-102 [47-61].
The applicant claimed to fear persecution in China for reason of his religion. He claimed to be a Falun Gong practitioner since 2002, that the police had arrested his father who was also a Falun Gong practitioner in January 2006 and thereafter the applicant practised Falun Gong more often, and that the police had harassed the applicant and pressured his employer to sack him, although at the Tribunal hearing he claimed they did not know he was a Falun Gong practitioner. He claimed that he left his job voluntarily, and at his father’s suggestion (when he was released in 2007) had left China for Australia where he could practice Falun Gong. He claimed he feared to be arrested like his father if he returned to China. See generally CB 91-102.
The Tribunal found that the applicant was not credible: CB 105 [71], noting numerous inconsistencies in his evidence over time (CB 103-104 [65-70]) concerning when he first started practising Falun Gong, where he was living at the time, his conversations with university colleagues about Falun Gong, whether he or only his father were suspected of practising Falun Gong by the police, his inability to describe how and where he practised Falun Gong in Sydney, and the inconsistency of his claimed fears with his being able to leave China on a passport issued in his own name. As a result the Tribunal found that the applicant was not a Falun Gong practitioner or suspected of being one because of his relationship with his father and had never been harmed in the past in China for this reason: CB 105 [71-72], 106 [74]. The Tribunal also disregarded the applicant’s Falun Gong practice in Australia pursuant to s.91R(3) of the Migration Act: CB 106 [73]. See generally CB 102-106.
The applicant relies upon his show cause application filed on 19 May 2008. That application contains two unparticularised and meaningless assertions of jurisdictional error and procedural unfairness. The application is supported by an affidavit which the applicant deposes as to his Falun Gong practice. I received that affidavit as a submission. I note that the affidavit was witnessed before a Ms Weiming Qian who is a Justice of the Peace. The affidavit does not contain any translation certificate establishing that the affidavit in the English language was read to and understood and adopted by the applicant. In this Court the applicant asserts that his father rather than he was accused of being a Falun Gong practitioner in China.
Because of the extremely general nature of the assertions in the application, I conducted a show cause hearing in this matter on
18 August 2008. At that hearing the applicant asserted that his principal concern was that the Tribunal identified inconsistencies between what he had told the Tribunal at the hearing conducted by it and what he had told a departmental officer at an interview conducted by the Minister's Department.
The applicant had questioned the accuracy of the interpretation at the departmental interview. He asserted before me that he had asked the Tribunal presiding member to play the tape recording of the departmental interview, which the member had already listened to, presumably so that the applicant could pursue his assertions about the quality of the interpretation.
As a result of listening to the sound recording of the Tribunal hearing at the show cause hearing I was able to satisfy myself that the presiding member did indeed decline to play the audio recording of the departmental interview at the Tribunal hearing. Bearing that in mind I ordered the Minister to show cause, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) why relief should not be granted in relation to the application as if the grounds had the following particulars:
(1)The Tribunal has made mistakes in drawing attention to inconsistencies between information provided to the Minister’s Department at an oral interview and information provided to the Tribunal and thereby fell into jurisdictional error in assessing the applicant’s credibility.
(2)The Tribunal breached s.425 of the Migration Act 1958 (Cth) by refusing a request made by the applicant to the presiding member at the hearing conducted by the Tribunal to listen to the sound recording of the departmental interview that the presiding member had listened to before the hearing.
I also ordered the Minister to use his best endeavours to provide to the applicant a sound recording of the departmental interview consistent with an earlier order made on 2 July 2008. That earlier order had not been effectively complied with because the tape recorded supplied to the applicant was blank. I further ordered the applicant to file and serve on the respondents a transcript of either or both the interview before the Department and the hearing before the Tribunal by 30 September 2008.
The Minister complied with order 2 made by me by forwarding a further copy of the sound recording of the departmental interview under cover of a letter dated 20 August 2008[1]. That letter was addressed to the applicant's address for service at PO Box 367, Auburn, New South Wales, 1835.
[1] exhibit R1
At the commencement of the hearing before me today the applicant explained his non-compliance with the order for a transcript by saying he had not received the audio recording. The applicant explained that the post office box given as his address for service was not his but was the post office box of a “friend” who was assisting him with his application. It transpired that that friend was none other than Ms Weiming Qian who is apparently a registered migration agent. The Court was able to contact Ms Qian by telephone and she also asserted non receipt of the second copy of the audio recording. However, she conceded receipt of earlier correspondence, including the blank sound recording. Ms Qian also stated that she had prepared, at the applicant's request, the show cause application and the accompanying affidavit. She also told me that she had obtained the post office box used as the applicant's address for service for the purpose of providing a post office box facility to applicants in the position of this applicant. Ms Qian asserted (and the applicant confirmed) that she provided her services to the applicant both before the Tribunal and in this Court for free.
I treat Ms Qian’s assertion that she did not receive the second audio recording with extreme caution. That is in part because she conceded the receipt of a letter dated 6 November 2008[2] which reminded the applicant of the Court fixture today. While she initially denied receipt of the Minister's submissions that were enclosed in that correspondence she later conceded the possibility that there might have been something else enclosed with the letter, to which she paid no attention.
[2] exhibit R2
It is regrettably common for applicants not to receive or to deny receipt of important communications directed to post office boxes provided in a similar way to that provided by Ms Qian. It is, to say the least, remarkable how often significant communications are said not to be received.
I drew to Ms Qian's attention that there was nothing on the face of the application or the accompanying affidavit to indicate that they had been translated from the Chinese language or explained to the applicant in his own language. I drew attention to the need for a translation certificate, at least in relation to affidavits[3]. Ms Qian asserted that she does not provide a translation service. It is reasonable to infer from that that the documents she prepares are based loosely on her discussion with an applicant and that the contents are determined by her. I regard that as wholly unsatisfactory. The Minister's Department might usefully further investigate the nature of Ms Qian's activities. To that end I direct that the transcript of today's hearing be obtained and made available for inspection by the parties or their legal representatives.
[3] Federal Magistrates Court Rules 2001 (Cth), rule 15.27
I received the court book filed on 13 June 2008 as evidence. I accept that the applicant had not prior to today listened to the audio recording of the departmental interview. In saying that I also note that he could have requested the audio recording from the Department or from the Tribunal and made submissions to the Tribunal but he does not appear to have done that.
In view of the importance attached by the applicant to the question of inconsistencies between what he is recorded as having said at the departmental interview and the Tribunal hearing I acceded to his request for the tape to be produced and played.
The Tribunal decision at paragraphs 20 to 23 (CB 92-93) sets out the Tribunal's understanding of what was said at the departmental interview. The only paragraph of jurisdictional significance is paragraph 20:
The applicant was interviewed on 10 December 2007 by the delegate who made the decision in relation to his application. At that interview he repeated that his father had introduced him to Falun Gong. He said that his father had told him that Falun Gong eradicated diseases and promoted health and that it elevated a person’s mind and personality. He said that his difficulties in China had started when his father had been gaoled. He said that the police had often harassed his family members and that they had warned his father not to practise Falun Gong. He said that they had gone to the company where he himself had been employed, they had told his colleagues that he was a Falun Gong practitioner and they had pressured his employer to sack him. The applicant said that his employer had been a friend of his father so he had not wanted to create any difficulties for his employer. He said that his employer had told him that if he kept practising his employer would have to dismiss him. The applicant confirmed that he had in fact left his job rather than being sacked.[4]
[4] CB 92
The Tribunal records at paragraph 56 of its decision that it raised with the applicant what appeared to be an inconsistency between what he told the Department as recorded at paragraph 20 and what he told the Tribunal at the Tribunal hearing[5]:
I noted that we had already discussed the inconsistency in his evidence regarding his addresses and we had already discussed the inconsistent answers he had given with regard to when he had started practising Falun Gong regularly. I noted that we had also discussed the inconsistency in his evidence with regard to whether, when the police had come to his place of work, they had said that he was a Falun Gong practitioner or only that his father was a Falun Gong practitioner (as he had said at the hearing before me). I noted that the applicant had not just said at the departmental interview that the police had told his colleagues that he was a Falun Gong practitioner: he had also said at that interview that his employer had told him that he would have to dismiss him if he did not give up practising Falun Gong. I noted against that this was different from what he had told me at the hearing. The applicant suggested that this could be a mistake made by the interpreter at the interview.
[5] CB 101
The applicant's response, recorded by the Tribunal, was a suggestion that the interpreter at the departmental interview might have made a mistake. The applicant confirmed before me that that is what he said
The Tribunal was concerned about a number of other inconsistencies in the applicant's evidence, including inconsistencies within the evidence given at the Tribunal hearing. However, for present purposes the relevant inconsistency is the asserted inconsistency in relation to a threat to the applicant's employment in China. The Tribunal's reasoning in relation to that inconsistency is set out in paragraph 68 of the Tribunal's reasons at CB 104:
The applicant also changed his evidence with regard to whether the authorities in China had known that he was practising Falun Gong. At the Departmental interview he said that the police had gone to the company where he had been employed and had told his colleagues that he was a Falun Gong practitioner and that they had pressured his employer to sack him. He said that his employer had told him that if he kept practising his employer would have to dismiss him. At the hearing before me, however, he said that the police had told his colleagues that he was the son of a Falun Gong practitioner and that his employer had told him that he had to renounce his relationship with his father or he had to leave. As referred to above, the applicant sought to explain this inconsistency in his evidence on the basis that the interpreter at the Departmental interview must have made a mistake. As I put to the applicant, having regard to the fact that he referred not only to the police having told his colleagues that he was a Falun Gong practitioner but also to his employer having told him that he would have give up practising or be dismissed, I do not accept this explanation. I consider that once again the applicant has changed his evidence to what he believes will help his case.
As a result of playing the audio recording in Court I was able to satisfy myself that the record of what was said at the departmental interview in the English language is faithfully contained in paragraph 20 of the Tribunal's reasons. However, a difficulty was revealed. At the end of the sentence where the applicant said that his employer had been a friend of his father so that he had not wanted to create any difficulties for his employer, the interpreter at the departmental interview said a few words about the applicant's father that I could not hear clearly. I asked the interpreter at the hearing before me, Ms Minmin Long, a NAATI accredited interpreter, to interpret from the sound recording what the applicant had said in the Chinese language. Ms Long told me that what the applicant had said at this point was:
Precisely speaking he also said that if your father continues practising I will have to dismiss you. Your father is like this. If you continue practising I will have to dismiss you.
I accept the accuracy of what I was told by Ms Long. I conclude that the interpretation of what the applicant was saying was incomplete in that the reference to his father's practice and the resulting threat to the applicant's employment was not translated. It is, in my view, unfortunate that the presiding member did not accede to the applicant's request to play the sound recording at the Tribunal hearing. If that course had been adopted as it was adopted in the hearing before me, the presiding member would have been in a better position to assess the applicant's credibility.
However, the applicant did not obtain a copy of the departmental interview recording and make a submission to the Tribunal after the hearing as he could have done. I accept the Minister's submission that s.425 of the Migration Act does not impose on the Tribunal any general obligation to accede to requests of the kind made by the applicant at the hearing.
In that regard I agree, with respect, with the views expressed by Flick J in SZKOB v Minister for Immigration [2007] FCA 1949 at [10] and [12]. There may be cases where the obligation to ensure a real hearing opportunity pursuant to s.425 compels the Tribunal to produce a sound recording for departmental interview and either listen to it or provide it to the applicant. This is not such a case.
The inconsistency in issue was but one of numerous inconsistencies bearing on the applicant's credibility. The issue was squarely raised orally with the applicant by the presiding member during the hearing. The applicant could have taken up the opportunity to address the issue after the hearing but he did not do so. I find that while the Tribunal's refusal to accede to the applicant's request is unfortunate it did not constitute a breach of s.425. I also find that the Tribunal did not fall into error by reason of making mistakes in relation to the asserted inconsistency.
If the presiding member had been aware of what the applicant had said at the departmental interview in relation to the threat based on his father's practice, the Tribunal would have been better informed. However, the applicant could not avoid the conclusion about the inconsistency based upon his assertion to the Department that the threat to his employment was also based upon his own practice of Falun Gong. In that regard the Tribunal's understanding of what the applicant told the Department was accurate.
The relevant inconsistency for the Tribunal was the inconsistency between the applicant's assertion of the threat being made by the authorities based upon his own practice and then based upon his father's practice. The inconsistency remained, notwithstanding that his father's practice and the resulting threat was also an alleged factor, in the account given to the Department. That is because the applicant asserted to the Tribunal that his own practice was not the issue.
I find that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks costs fixed in the sum of $5,500 on a party and party basis. The applicant asserted that costs of that order would be excessive but he was not able to develop the point. Scale costs in this instance would be $5,000. I am satisfied that additional costs of $500 had been reasonably and properly incurred in the light of the show cause hearing on 18 August 2008 and the orders made by me at that time. I will order that the applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 November 2008
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