SZMHH v Minister for Immigration & Anor - [2008] FMCA 1141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHH v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1141

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application dor review of RRT hearing affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant a citizen of China – claiming fear of persecution for being a member of a particular religious group – credibility of applicant at Tribunal hearing – no jurisdictional error.

PRACTICE AND PROCEDURE – Interpreters – where applicant requests Fuqing interpreter at RRT hearing but claims that hearing was conducted in Mandarin and could not understand – applicant requests a Mandarin interpreter for hearing claiming she did not know that a Fuqing interpreter could be made available.

Migration Act 1958 (Cth), ss.424A, 425, 474(2)

Applicant:

SZMHH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1288 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 Respondents:

Mr Knackstredt

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application is dismissed.
The Application for adjournment is refused.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1288 of 2008

SZMHH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicant is a citizen of China. She asks the Court to review a decision of the Refugee Review Tribunal that was signed on 4 April and handed down on 24 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 seeks an order in the nature of certiorari to set aside the decision of the Refugee Review Tribunal and an order in the nature of mandamus remitting her application for a visa to the Tribunal for determination according to law. She claims in her application:
(1)That jurisdictional error has been made and the RRT did not weigh her evidence. And
(2)That procedural fairness has been denied and the RRT used refused cases against her.
The Minister for Immigration & Citizenship has filed a response opposing the orders sought, claiming that the application does not provide any particulars or any legal ground of review, nor does it establish any jurisdictional error.

Background

The background to this matter is that the applicant arrived in Australia on 21 August 2007. She applied for a protection (Class XA) visa on

4 October 2007
. The applicant claimed in a statement accompanying her application that she had been subjected to persecution because she was a Christian and a member of an underground church defined as an illegal and antigovernment organisation in China. She claimed to have a well-founded fear of being persecuted continuously if she were to return to China. She claimed that since arriving in Australia she had continuously participated in activities at her local church.
In her application for a visa she claimed to speak Chinese and in the answer to question 9, which says:
If you are called for an interview, will you need an interpreter?
She had placed a tick in the box saying "yes" and gave the dialect as Fujian.
The Minister's delegate considered her application but was not satisfied that she had made out a case that there was a real chance of persecution. The delegate noted that much would depend on an applicant's profile following advice from the Department of Foreign Affairs and Trade which stated that an individual's capacity to oppose the government in an effective and organised way determines the level of attention they attract from the authorities.
The Tribunal found that the applicant did not appear to have a high profile or a profile that would make her a target of the authorities and found that the chance of her being persecuted was remote and that there was not a real chance of persecution. The application for a protection visa was refused on 10 December 2007.

Refugee Review Tribunal

The applicant then commenced proceedings in the Refugee Review Tribunal seeking a review of that decision. Her application for review was received at the Sydney registry of the Tribunal on 14 January 2008. In that application the applicant indicated that she did need an interpreter and when asked in what language she wrote "Chinese dialect Fujian"[1]. The applicant did not indicate that she had a migration agent and did not nominate any person as an authorised recipient. The Tribunal wrote to the applicant on 1 February 2008 advising her that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to attend a hearing at 9.30 am on 6 March 2008. The applicant attended the hearing accompanied by a friend as an observer. The Tribunal hearing record, a copy of which appears at page 53 of the Court Book, indicates that an interpreter was available and the box indicating language dialect says:
[1] See Court Book at page 45
Fuqing (Chinese) - Fujian.
The applicant produced her passport to the Tribunal at the hearing. The Tribunal handed down its decision on 24 April 2008 affirming the decision not to grant the applicant a protection (Class XA) visa. In its decision the Tribunal sets out the applicant's claims and evidence taken from the application for a visa and the separate written statement and then sets out in some detail a summary of the applicant's evidence to the Tribunal. That summary of the evidence to the Tribunal can be found in the Court Book at pages 70 through to 77. I note that as to the question of language the Tribunal said:
The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing (Chinese) and English languages.
The Tribunal set out the applicant's evidence and asked the applicant to speak about problems she experienced in China. It asked her about her religious beliefs in some detail. The Tribunal's findings and reasons are set out in the Court Book at pages 77 through to 80.
The Tribunal accepted that the applicant is a citizen of the People's Republic of China based on her Chinese passport. The Tribunal noted that the applicant claimed to be a Christian and a member of the underground Christian church, but was not persuaded. The Tribunal had this to say about the applicant's evidence:
The Tribunal found the applicant's oral evidence unconvincing and internally inconsistent. She was not a persuasive witness. The level of knowledge about the Christian faith which she demonstrated at the hearing satisfied the Tribunal that she has come from a Christian family and has some knowledge of the Christian religion. However, the level of knowledge is not consistent with a person who has attended regular church gatherings over a period of some 14 years. It did not indicate a reasonable familiarity with the Bible which she said was used in gatherings of her underground Christian faith, nor was she able to describe, even in basic terms, the order and content of the gatherings she says she attended in China[2].
[2] See Court Book at page 78
The Tribunal then set out in some detail the inconsistencies that it found in the applicant's evidence. The Tribunal accepted that the applicant has had an association with the Christian faith through her family, but did not accept that she had ever been associated with an underground Christian group. The Tribunal did not accept that the applicant was a member of an underground church in China and did not accept that she had been perceived as such by the Chinese authorities. The Tribunal did not accept that if the applicant were to return to China that she would be perceived to be a member of any underground Christian church. The Tribunal found there was no real chance that the applicant would face serious harm which amounts to persecution for reason of her religion or any other Convention-related reason if she returned to China in the foreseeable future and affirmed the decision not to grant the applicant a protection visa.
The applicant then applied to this Court for judicial review of the Tribunal decision. Her application was filed on 20 May 2008. In that application the applicant set out that she required an interpreter and in answer to the question – ‘What language does the applicant speak’, there has been typed in block letters the word "Mandarin".
The applicant attended court on the first court date on 16 June 2008. She was not represented on that occasion but had the assistance of an interpreter in the Mandarin language. I made directions for hearing and listed the matter for hearing today. I asked for the services of a Mandarin interpreter.
The applicant has not filed any written outline of submissions or an amended application. However, the applicant has attended court today and made oral submissions. On several occasions she asked the Court for an adjournment in order that she could obtain a transcript of the Tribunal hearing. She claimed that she did not have money to obtain that transcript and when asked what length of adjournment she would need in order to do so she replied "the longer the better".
I have considered that application but I am of the view that sufficient time has been allowed to prepare for the final hearing and I have refused the application for an adjournment.
The applicant was asked to expand on the grounds of review, which were rather sparse, set out in her application. She told the Court that everything submitted to the Refugee Review Tribunal was the truth. She complained that the Tribunal did not give her a chance to explain her evidence. She set out two reasons for that. First, she complained that she was very nervous at the RRT and was not able to explain her case adequately. There is no evidence that she made that nervousness clear to the Tribunal.
The other complaint relates to the interpreting at the Tribunal hearing. The applicant said that at the Tribunal hearing she was required to speak in Mandarin and complained that her Mandarin was not very good and that did not assist her in answering the Tribunal's questions adequately. I asked the applicant why the proceedings were translated into Mandarin for her when the interpreter provided at the Tribunal hearing was in fact one who was accredited in Fuqing or Fujian dialect which was what she had asked for. Notwithstanding this, the applicant said that she did not know there were any interpreters with that skill available, even though the interpreter she had at the hearing was so qualified. Despite that interpreter being available, the applicant asserts that the proceedings were translated into Mandarin for her. This is difficult to accept.
The applicant was asked by the Court when she found out that interpreters in Fujian or Fuqing dialect were available. She indicated that she found this out about 20 days after the Tribunal hearing. The hearing took place on 6 March. Twenty days later would have taken the applicant up to 26 March. In the circumstances, it is difficult to understand, and indeed the applicant did not explain, why, when she filed her application in this court on 20 May 2008 that the applicant asked for a Mandarin interpreter. It is even more difficult to understand why at the first court date on 16 June when, as is usual, the question of an interpreter was discussed the applicant consented to a Mandarin interpreter. The applicant told the Court that she had a headache when she appeared at court and had forgotten to ask for an interpreter in her preferred dialect. For what it is worth, the applicant did not appear to display any difficulty in dealing with an interpreter in the Mandarin language during the course of this hearing.
There is no record in the Tribunal decision record that the applicant made any complaint to the Tribunal about having difficulty in understanding what was being said or making herself understood.
Looking at the grounds in the application, neither of those grounds has been particularised. Ground 1 says:
Jurisdictional error has bee [sic] made. RRT did not weigh my evidence.
(2) Procedural fairness has been denied. RRT used refused cases against me.
The applicant was not able to assist in expanding on those grounds, other than in complaining that she was nervous at the hearing and could not answer questions properly or complaining about having to give evidence in Mandarin.
The Tribunal wrote to the applicant and advised her that it had considered the material before it but was unable to make a favourable decision on that information alone. That letter was written on 1 February 2008. It invited the applicant to attend a hearing on 6 March 2008. The time allowed was permissible and there is no suggestion the applicant was not given a proper invitation to a hearing. She attended the hearing and gave evidence. An interpreter was provided in the language which she requested even though on the applicant's account, inexplicably, she was required to speak Mandarin. There is, as I said, no evidence of any complaint about this on the Tribunal decision record.
The Tribunal dealt with the issues of the credibility of the applicant's claim to fear persecution as a member of an underground Christian church. It was that issue that was considered by the delegate. Accordingly, the Tribunal hearing was not conducted or decided on an issue which the applicant would not reasonably have been aware. In my view, there is no breach of s.425 of the Migration Act.
The Tribunal made its decision on the basis of the applicant's evidence. Accordingly, there is no suggestion of any breach of s.424A of the Migration Act. In my view, no jurisdictional error has been made out. Jurisdictional error can lead to an application being found not to be a privative clause decision. However, in the absence of jurisdictional error, I am satisfied that the Tribunal decision is a privative clause decision as defined in s.474 (2) of the Migration Act. Privative clause decisions are not subject to orders in the nature of certiorari or mandamus. They are final and conclusive. It follows that the application will be dismissed.
I am satisfied this is an appropriate matter for an order for costs in the sum of $3400. It is a figure well within the scale provided by the Federal Magistrates Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 12 August 2008