SZMHB v Minister for Immigration & Anor
[2008] FMCA 1062
•22 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMHB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1062 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for protection visa – review of decision of Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of China claiming fear of persecution on account of her religious belief. PRACTICE & PROCEDURE – Interpreters – where applicant consistently requested an interpreter in the Mandarin language – where applicant declined to speak Mandarin at the hearing – where applicant claimed only to be able to speak a local dialect – where Court not satisfied applicant unable to speak Mandarin and proceeded with the hearing. |
| Migration Act 1958 (Cth), ss.91R, 424AA, 425, 474 |
| Applicant: | SZMHB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1272 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 July 2008 |
| Date of Last Submission: | 22 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Sprake Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed the in the sum of $7000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1272 of 2008
| SZMHB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant applies for review of a decision of the Refugee Review Tribunal signed on 14 April 2008 and handed down on 22 April.
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 is a citizen of the People's Republic of China.
She arrived in Australia on 11 September 2007. She applied for a Protection (Class XA) visa on 4 October 2007. In that application she claims that she is from Fujian Province in China and was persecuted for her religious beliefs.
In her application for a protection visa she indicated that she speaks Mandarin. In question nine of her application, which says:
If you are called for an interview, will you need an interpreter?
She placed a tick in the box marked, "Yes" and when the question went on:
In which languages and dialect?
The word, "Mandarin" was written. At question 11 of the form, which asks:
Which languages do you speak, read or write, including English?
She placed a tick in the box to indicate that she speaks Mandarin. She refers to no other language.
A delegate of the Minister called her for an interview. The applicant attended the interview and the delegate noted:
After interviewing the applicant and examining all the available evidence, I am not satisfied as the plausibility of the core claims made by the applicant[1].
[1] See Court Bok at page 41
The delegate refused the application for a visa on 11 December 2007. The applicant then applied to the Refugee Review Tribunal for a review of the Tribunal decision. The Tribunal received an application for review at its Sydney registry on 9 January 2008. In the application for review the applicant gave her residential address and in answer to the question:
Do you need an interpreter?
A tick was placed in the box saying, "Yes". In answer to the question:
If, "Yes", in what language?
There was written the word, "Mandarin".
In section C of the form the name of the applicant's Migration Adviser was given. The adviser's name is given as Weiming Qian. This person gives the name of an organisation, "Eternity International (Aust) Pty Ltd" of Post Office Box 1510, Auburn.
The Tribunal wrote to the applicant care of Weiming Qian on
10 January acknowledging the receipt of the application and wrote again on 24 January inviting the applicant to attend the hearing of the Tribunal on 20 February 2008. The invitation to appear before the Tribunal indicated that an interpreter would be available in the Mandarin Language[2].
[2] See Court Book at page 54
The applicant, with the aid of the migration agent, sent a Response to Hearing Invitation dated 3 February 2008 indicating that the applicant had wished to attend the hearing and needed an interpreter in the Mandarin language[3].
[3] See Court Book at page 56
The Tribunal then received a document headed: "Medicine Certificate" indicating that the applicant was, is or will be unfit for work or study due to something illegible from 19th to 21 February 2008 with alleged symptoms of “flu, fever, dizzy”. This "Medicine" Certificate came from Min Huang Traditional Chinese Medicine Clinic, 215/413-415 Sussex Street, Sydney. The dates on the “Medicine Certificate” indicated that the applicant would be unfit for those activities from the day before the Tribunal hearing until the day after.
On 20 February the Tribunal faxed to the applicant's migration agent a notice headed, "Request For Postponement Of Hearing". The Tribunal postponed the hearing until 27 February 2008.
On 25 February 2008 the Tribunal received by fax a response to hearing invitation dated 24 February 2008. That document indicated that the applicant wished to attend the hearing on 27th and required an interpreter in the Mandarin language[4].
[4] See Court Book at page 62
The applicant did indeed attend the hearing on 27 February 2008 where an interpreter in the Mandarin language was available. The hearing, according to the Tribunal hearing record, commenced at 1.41 pm and ended at 4.20 pm. The applicant produced a passport issued from the People's Republic of China. After the hearing the Tribunal received a letter from the applicant's agent containing a number of photographs of the applicant. There were some other documents provided. As I said; the applicant attended the hearing. The Tribunal signed its decision on 14 April 2008 and handed it down on 22 April. The Tribunal noted that the applicant attended with her passport and summarised the applicant's oral evidence to the Tribunal. It will be recalled that the interpreter available was an interpreter qualified in the Mandarin language. The applicant told the Tribunal that she did not have any education and could not read. The Tribunal asked the applicant whether she could read or write Mandarin. She said that she could read a little[5].
[5] See Court Book at page 102
The Tribunal summarised the applicant's evidence relating to her claims to have been detained and ill-treated as a result of religious belief and attendance at church. The Tribunal indicated that at the end of the hearing the Tribunal gave the applicant particulars of information which could be the reason or part of the reason for affirming the decision to refuse the visa. The Tribunal told the applicant that she would be given an opportunity to comment on or respond to the information and that she could request time to do so. She could respond in writing or that she could attend the further hearing. The applicant requested time to respond in writing[6].
[6] See Court Book at page 107
The Tribunal then set out in its decision, details of the information upon which the Tribunal sought a response or comments. The Tribunal noted that it allowed until 18 March 2008 for a written response. As it was, the Tribunal received an undated letter from the applicant's representative on 19 March containing the documents and the photographs to which I have previously referred.
It is clear that the Tribunal considered that information, notwithstanding the fact that it was received slightly outside the time limit. The Tribunal accepted that the applicant travelled to Australia on a Chinese passport and claimed to be a National of China and accepted that she was a National of China and assessed her claims against China as a country of nationality. However, the Tribunal did not find that the applicant had a well-founded fear of persecution. The Tribunal set out a number of concerns in respect of the applicant's evidence, including the fact that she had only a superficial knowledge of Christianity.
The Tribunal, after having set out the reasons why the Tribunal had concerns said:
Based on the Tribunal's impression, the above noted evidentiary concerns and consideration of the evidence as a whole, the tribunal finds that the applicant is not a credible witness and that she has fabricated her claims in order to support her application for a protection visa[7].
[7] See Court Book at page 114
The Tribunal noted the applicant's claims to have attended a Christian church since arriving in Sydney and examined the evidence which she had produced, including the photographs. However, given the Tribunal's finding that it did not consider her to be a credible witness, the Tribunal was not satisfied that the applicant had attended the church otherwise than to strengthen her application to be a refugee. Accordingly, the Tribunal considered that s.91R(3) was applicable and disregarded the conduct in Australia.
The Tribunal was not satisfied that the applicant had suffered any harm for reasons of religion and was not satisfied that there was a real chance of serious harm for reasons of religion or membership of a particular social group or any other Convention reason in the reasonably foreseeable future. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA)visa.
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 19 May 2008. In the application the applicant indicated that she would require an interpreter and in answer to the question on the application:
What language does the applicant speak?
There was typed in, in block capitals, the word:
MANDARIN.
The application came before the Court on a first Court date on 16 June 2008. The applicant attended in person. She was not legally represented. There was an interpreter available in the Mandarin language. I made directions for hearing and listed the application for final hearing on 14 July 2008. The Court requested an interpreter in the Mandarin language.
The applicant did not attend Court on 14 July 2008. Instead, there was forwarded to the Court the day before a message addressed to the Registrar of the Court saying:
I am sick and unable to come for the hearing on 14 July 2008 at 2.15 pm. Please see the attached Medicine Certificate. Would you please arrange another time?
Attached was a copy of a Medicine Certificate from Min Huang Traditional Chinese Medicine Clinic of 215/413-415 Sussex Street, Sydney. The certificate claimed that the applicant:
Was, is or will be unfit for work or study due to flu, fever, dizzy from 13 July 2008 to 15 July 2008 - - -
-- - the day before and the day after the hearing. As was pointed out to the Court at the time by Mr Reilly of counsel; this was oddly reminiscent of the Medicine Certificate that had been provided to the Refugee Review Tribunal. I adjourned the proceedings until today, 22 July 2008 at 11.30 am. The applicant was advised that the matter must proceed on the next occasion and no further adjournment would be granted.
The applicant attended Court this morning. There was, provided by the Court, an interpreter in the Mandarin language. I looked at the applicant's application and asked her some questions about the grounds of her application as they were sparse. My question about ground one was translated by the interpreter and the answer that I received was in these terms:
I do not understand.
I rephrased the question and put the question again. The applicant became distressed and the answer, which was translated to me through the interpreter, was:
Don't push me to speak Mandarin. Speak in my local language,
or words to that effect. From that moment on the applicant did not speak anything in the Mandarin language. I put questions to the applicant with the assistance of the interpreter. The applicant became distressed or continued to be distressed and replied in another language. The interpreter told me, and I believe it to be true, that the applicant was speaking in a dialect that she did not understand. I was informed that the applicant had been accompanied by an adult male and had been seen talking to that gentlemen in the public area of the Court in what sounded like the Mandarin language. I asked the gentleman to attend Court and asked him if he were a friend or a relative. He told the Court:
We just know each other.
He indicated that his first language was Mandarin and said:
I simply come here with a purpose because a friend asked me to come here.
I asked if he spoke to her in Mandarin and he said:
Because she is illiterate and has not much education I have nothing to talk to her about.
He told the Court that she, meaning the applicant, does not speak Mandarin and believed that she spoke some dialect from Fujian. I asked him if he was going to accompany the applicant to her home because she did not speak English and he said that:
She might get a taxi.
I expressed some doubt about this and he indicated that he could call a taxi for her and give instructions to the taxi driver as to where the applicant lived.
This was not evidence given on oath or affirmation but I must say that I am not entirely convinced as to its veracity. I then excused the man from further appearance. From then on the applicant persisted in speaking only in the dialect which she had been speaking and remained distressed.
On the basis of the fact that the applicant had consistently requested an interpreter in Mandarin and had attended both an interview with an Officer of the Department and a hearing of the Refugee Review Tribunal both of which were conducted in the Mandarin language, I formed the view that the applicant's protestations of being unable to speak Mandarin were not true. I have proceeded with the hearing. I am strongly of the view that an attempt has been made to deceive the Court and I am also of the view that the Minister for Immigration & Citizenship should instruct officers of his department to make some inquiries of the applicant's migration agent.
The Court goes to great trouble to arrange interpreters in a language that will assist unrepresented applicants. As recently as earlier this morning I interposed a hearing which I had previously adjourned due to difficulties with obtaining a suitable interpreter. It turned out that this morning was the only time that was reasonably convenient for an interpreter in a particular African dialect to assist the Court by telephone hook-up from Melbourne.
This Court frequently adjourns hearings when an interpreter in an appropriate dialect is not able to be secured. The Court is conscious of the fact that many applicants are not legally represented and the provision of competent interpreters is most important. But the Court will not allow people to take advantage of this policy for improper purposes. The Court will not allow people to feign ignorance of a language in order to frustrate the hearing of its business, particularly when it is the applicant who has commenced these proceedings.
I would comment that this is the first time since I was appointed to the Bench of this Court on 19 June 2000 that I have ever made a finding that I am satisfied that an attempt has been made to mislead the Court about a party's ability to speak a language. I am however so satisfied.
It is for those reasons that despite the applicant's tears, and I did stand the matter down to allow the applicant to regain her composure, that I have proceeded to finality with this hearing.
There were two grounds set out in the application.
i)Jurisdictional error has been made. RRT did not weigh my evidence.
ii)Procedural fairness has been denied.
No particulars of those grounds were provided, as was submitted by counsel for the Minister. In the absence of particulars the grounds are meaningless.
I am of the view that the Tribunal considered the applicant's claims as set out in the visa. I am of the view that the Tribunal complied with its requirements under s.425 of the Migration Act. The Tribunal invited the applicant to attend the hearing and provided an interpreter in the language which she requested. The applicant attended the hearing and gave evidence in the language she requested.
The Tribunal eventually found that the applicant's evidence not to be credible. This lack of credibility was the issue to which the delegate referred in the reasons for refusing the application for a visa after, I might add, the applicant had been interviewed by the delegate in the language of her own choosing, to wit, Mandarin.
There is no breach of s.425 of the Migration Act. The Tribunal at the hearing elected, from the decision record, to follow the procedure set out in s.424AA of the Migration Act and I am satisfied that the Tribunal complied with the requirements set out in that section. The Tribunal did give the opportunity to make written submissions after the hearing, considered those submissions even though they were received after the deadline.
In my view, no breach of the Migration Act has been made out. In my view, there is no jurisdictional error. Accordingly, the application will be dismissed because the Tribunal decision is a privative clause decision as defined by s 474(2) of the Migration Act. The application will be dismissed and it will be dismissed with costs.
There is an application for costs in the sum of $7000. That includes obviously the hearing today and on the costs thrown away on 14 July when I made a costs order. I have indicated to counsel that in my mind most matters of this Court under the Migration Act are suitable for fixed costs orders and this is certainly one. On raising that issue with the applicant I note that she was able to ask the question:
What do you mean by costs?
In Mandarin, and indeed queried the quantum of costs, namely $7000. After that the applicant reverted to speaking in the dialect that the interpreter was unable to understand.
This is a suitable matter for a costs order in the amount of $7000 which in the circumstances is to my mind an appropriate figure.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 29 July 2008
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