SZMLI v Minister for Immigration

Case •

[2008] FMCA 1653

•

28 November 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1653
MIGRATION – Visa – Protection (Class XA) Visa – Refugee Review Tribunal – application for review of a RRT decision affirming decision of the Minister’s delegate refusing to grant the applicant a protection visa – applicant is a citizen of China claiming fear of persecution on the basis of religion – no reviewable error.
Migration Act 1958 (Cth), ss.36(2), 424, 424A, 425, 425(1)(a), 426(3)

WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 511

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

Perera v Minister for Immigration and Multicultural Affairs [1999] 92 FCR 6
Applicant: SZMLI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1635 of 2008
Judgment of: Scarlett FM
Hearing date: 28 November 2008
Date of Last Submission: 28 November 2008
Delivered at: Sydney
Delivered on: 28 November 2008

REPRESENTATION

The Applicant: In person
Counsel for the Respondents: Mr Mitchell
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1635 of 2008

SZMLI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

  1. The applicant is a citizen of China.  She asks the Court to review a decision of the Refugee Tribunal that was signed on 20th May 2008 and handed down on 3rd June 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 26th June 2008,   


    the applicant sets out two grounds of review.

    I only primary school educated background.  I have no experience to go to hearing before.  I was very nervous on the hearing. Plus, the interpreter is very quick, I cannot follow at all.  Some question, I don't understand at all.  During the hearing, I cannot express myself totally.

    I believe there is interpreter mistake on the hearing because I see there are some different expressions of mine on the decision letter.

  2. The Minister, who is the first respondent to the application, has filed a response opposing the orders sought.

Background 

  1. The background to this matter is that the applicant arrived in Australia on 7th October 2007.  She applied for a Protection (Class XA) visa on 16th November 2007.  The applicant claimed a well-founded fear of persecution for the Convention reason of religion.  In her application she said,

    I have been a Catholic and I believe in my religion beyond all doubt.

    She went on to say,

    I experienced terrible persecution and was given a lot of warnings to give up any activity relating to my religion and our church assemblies.

    Further, she said,

    So if I go back to China I must be persecuted again[1].

    [1] See Court Book at page 21

  2. A delegate of the Minister for Immigration and Citizenship refused her application for a protection visa on 4th January 2008.  The delegate had interviewed the applicant on that day and asked her questions about her claim.  The delegate found that there was no evidence to support her claim, that the applicant was persecuted on account of her claimed religion in China and noted that she was able to depart China in a lawful manner using her own passport indicating she was of no interest to the authorities when she departed.

  3. The delegate said,

    Given she claims to have not attended much in the last year owing to farm commitments, it is reasonable to conclude that she is not a committed Christian who attends church regularly or has any prominent or organisational role in a church. 

    Even if the applicant were to return to China and attend a House church in Fujian, I am not satisfied that this would form a basis from which a finding of well-founded fear can be made out[2].

Application to the Refugee Review Tribunal

[2] See Court Book at page 58

  1. The applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision by means of an application which was received at the Tribunal on 6th February 2008.  The applicant had the assistance of a migration agent and the details of the migration agent's address and telephone numbers have been entered on Section C of the application for review.  The Tribunal wrote to the applicant on 20th February 2008, care of the migration agent, inviting the applicant to attend a hearing to take place on 25th March 2008.  The applicant, no doubt with the assistance of the agent, forwarded a response to hearing invitation to the Tribunal indicating that she wished to attend the hearing and would need an interpreter in the Fuqing dialect of the Chinese language.[3]  The applicant attended the hearing and gave evidence in that dialect with the assistance of an interpreter.

    [3] See Court Book page 153.

  2. After the hearing on 18th April 2008 the Tribunal wrote to the applicant inviting her to comment on or respond to certain information that the Tribunal considered would, subject to any comments or response that she made, be the reason or a part of the reason for affirming the decision that is under review. The Tribunal set out that information and its relevance and what conclusions that the Tribunal may reach as a result of that information in compliance with s.424A of the Migration Act.

  3. The Tribunal also invited the applicant to provide information under the provisions of s.424 of the Act noting that the applicant had brought another person to the hearing to be a witness but the Tribunal had omitted to hear evidence from that person. The Tribunal invited the applicant to provide evidence from the witness in support of her claims in the form of a statutory declaration. The Tribunal asked for the material to be provided in reply to the letter by 2nd May 2008.

  4. The applicant's migration agent sent a fax to the Tribunal on 2nd May 2008 enclosing the applicant's comments in Chinese and an English translation.  As to the evidence of the witness; the migration agent said,

    And I have contacted the witness Xiao Feng Yu, he won't provide any evidence for the applicant[4]. 

    [4] See Court Book at page 172.

  5. In the applicant's comments she said that she was unable to answer some of the Tribunal's questions because she was very nervous.


    She said that she was a peasant from China and understood few words. She set out the details of her Christian belief and asked the Tribunal to consider that material. The Tribunal handed down its decision on


    3rd June 2008

    affirming the decision not to grant the applicant Protection (Class XA) visa.

The Refugee Review Tribunal Decision

  1. In its decision record the Tribunal set out the applicant's claims and evidence in some detail and quoted in full from the letter sent to the applicant under the provisions of s.424A and s.424 and quoted the applicant's reply. The Tribunal also referred to independent country information even though it is described no doubt in error as independent county information in the decision record on page 195 of the Court Book. This information related to Catholicism and Catholics in China.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out in the Court Book at pages 197 through to 203.  The Tribunal accepted that the applicant was a national of the People's Republic of China based on the applicant's Chinese passport.  It noted that she claimed to fear serious harm from the Chinese authorities should she return to China arising from her claimed underground or unregistered Roman Catholic religious practice in China.

  2. However, the Tribunal did not accept the substance of the applicant's claims.  The Tribunal set out why it did not accept those claims,

    However, after hearing the applicant's oral evidence, the Tribunal had concerns as to the extent of her knowledge of religious matters and, together with various inconsistencies, serious doubts as to whether the applicant was credible as to the events she claims occurred in China in regards to her religious practice.  These concerns were put to the applicant in writing after the hearing[5]. 

    [5] See Court Book at page 198.

  3. The Tribunal then set out why it came to that view. The Tribunal specifically considered the applicant's written response to the s.424A letter. It took into consideration her claim to have been a farmer with a formal education of just one year and her claim that she could not read Chinese and that this might have an effect on her religious knowledge. The Tribunal took into account the applicant's claim to be nervous and under pressure and considered the applicant's oral evidence to the Tribunal as a whole which took place over a period of just over two hours.

  4. The Tribunal noted that the applicant had claimed to feel unwell at the beginning of the hearing, but after a short break confirmed that she was feeling better and was able to continue.  The Tribunal did not consider in the circumstances that any nervousness hindered the applicant's ability to give evidence.  The Tribunal went on to consider the applicant's lack of education and specifically asked the applicant whether she understood the interpreter.  The Tribunal said,

    As she indicated some difficulty at that point and taking into account her claimed lack of education the Tribunal asked whether Mandarin was the only language she understood.  She said it was and on that basis the Tribunal decided to continue.  The applicant did not claim at any later time to not understand what was being said to her by the hearing interpreter. 

  5. I note from the Tribunal hearing record which appears at page 154 of the Court Book that the interpreter at the hearing of the Tribunal who was the interpreter assisting the Court today is an interpreter in both the Mandarin language and the Fuqing dialect of China.  The Tribunal referred to inconsistencies between the applicant's oral evidence and that that was in her protection visa application.  The Tribunal noted that the applicant had raised a new claim for protection that the government wanted her and her husband to sell their land and that they refused to sell and that the applicant said that she had forgotten to raise that claim earlier.  The Tribunal considered that claim and it rejected it.

  6. The Tribunal in fact considered the applicant's claims to have a well-founded fear of persecution on the basis of her religion, on the basis of political opinion or imputed political opinion or membership of a social group and also considered the application of the one child policy in China as the applicant claimed to have two children. The applicant, when asked, did not make any claims of future harm in relation to that policy. The Tribunal found the applicant did not have a well-founded fear of persecution on the grounds of the application of that policy in China and in conclusion was not satisfied that the applicant was a refugee within the meaning of Article 1(a)(2) of the Refugee's Convention and was not satisfied that the applicant was a person who was owed protection obligations by Australia as set out in sub-s.(36)(2) of the Act.

Application for Judicial Review

  1. The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 26th June 2008. 


    She requested the services of an interpreter in the Fuqing dialect and on 23rd October, when such an interpreter was not available, the application was adjourned until today for hearing when an interpreter skilled in that dialect was available.  The applicant did not make any written submissions to the Court but made oral submissions with the assistance of the interpreter.  Her submissions were largely confined to pleas to the Court to provide her with a protection visa or at least a work permit and her claims to be nervous and as a result unable to think clearly or remember things.

  2. I heard from Counsel for the Minister, Mr Mitchell, and at the conclusion of his submissions I again offered the applicant the opportunity to make some oral submissions to the Court.  She claimed to be confused and had difficulty understanding.  She told the Court that she was not only nervous but that her head was very heavy, and had said at the Tribunal hearing that she was not able to understand.  The applicant finalised her oral submissions in reply by asking for a protection visa a further work permit.

  3. It has been brought to my attention that the delegate of the Minister, when acknowledging the applicant's application for a protection visa, stated,

    The Protection visa application you have lodged also serves as an application for a Bridging visa.  You have been found to be eligible for a Bridging visa Class WA with permission to work[6]. 

    [6] See Court Book at page 46

  4. Dealing with the applicant's claims in her application I note that there are two grounds,

    An inability to express herself clearly at the hearing due to a limited education, nervousness and the fact that the interpreter was very quick.

    A belief that the interpreter made a mistake of some sort at the hearing when interpreting.

    I note that the applicant has had no difficulty or claimed to have no difficulty in understanding the interpreter today.

  5. In respect of the first ground, Counsel for the respondent Minister noted that the applicant's claims to be uneducated and nervous at the hearing were taken into account and considered by the Tribunal and found that her nervousness did not hinder her ability to give evidence.  Mr Mitchell noted that the applicant has not provided me any evidence to contest those findings and in the absence of clear transcript evidence submitted that there was an insufficient evidentiary basis for a finding that the Tribunal failed to accord the applicant a reasonable opportunity to respond to the determinative issues that arose at the hearing. 


    He referred the Court to the decision in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs.[7]

    [7] [2004] FCAFC 241 at [21]

  6. In respect of the claim by the applicant that there may have been some error at the hearing, Mr Mitchell submitted that the applicant has neither particularised her allegation nor filed any evidence of any errors in interpretation. He submitted that the applicant had been unable to show either that the standard of interpretation at the Tribunal hearings was so inadequate that the applicant was effectively prevented from giving evidence at the hearing or that any errors made by the interpreter at the Tribunal material were material to the conclusions of the Tribunal adverse to the applicant. Basically, in the absence of any transcript the applicant, he submitted, could not succeed on either ground.

  7. Mr Mitchell noted that the Tribunal acknowledged that it did not take any evidence from the applicant's witness who had accompanied her to the hearing but, and he submitted, because that person only attended to provide the applicant with support the Tribunal was not obliged to consider whether it should obtain evidence from him under sub-s.426(3). However, the Tribunal did provide an opportunity to obtain evidence from that purpose by means of a statutory declaration but the Tribunal was informed that that person did not wish to do so. Accordingly, a statutory declaration was not forthcoming.

  8. It is a fact that the applicant has not provided any transcript of the Tribunal hearing and the Court is therefore obliged to rely on the Tribunal decision record. In the absence of any other evidence about what occurred at the hearing the applicant does not have a sufficient evidential basis for the grounds that she seeks to raise either about being hampered by lack of education or nervousness or through any failings on the part of the interpreter. No transcript is provided which leaves the Court without sufficient evidence to make those findings. See NAOA v Minister for Immigration and Multicultural and Indigenous Affairs.[8]

    [8] [2004] FCAFC 241 at [21]

  9. In that case their Honours, Beaumont, Merkel, Hely JJ said,

    The applicant had not given any evidence in affidavit form or orally to the effect that this issue had not been raised.  There was simply no basis upon which his Honour could properly have made this finding.  His reasons should not be read as if he did so.  In the absence of evidence about what occurred at the hearing the appellant has no sufficient evidential basis for the grounds he seeks to raise plus he has not in our opinion established that the Tribunal did not comply with the rules of natural justice.

    That decision, I note, is a decision of the Full Court of the Federal Court on appeal from the Federal Magistrates Court and it is therefore a binding on the Federal Magistrates Court.

  10. In order to establish a ground about the inadequacy of interpretation the applicant must provide evidence directly to that point. In Perera v Minister for Immigration and Multicultural Affairs[9] the Court found that the applicant would need to show that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the hearing.

    [9] [1999] 92 FCR 6 at [22] and [38] to [42]

  11. Paragraph 41 Kenny J in Perera (supra) said,

    What are the factors that might lead a reviewing Court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that in consequence the applicant for refugee status can be said to have been effectively prevented from giving his evidence?  In my opinion those factors including amongst others the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and more generally any evident confusion in exchange between the Tribunal and the interpreter.

  12. There is no such evidence before me in this case. I have also referred to a situation where it could be found that errors made by interpreter at a Tribunal hearing were material to the conclusions of the Tribunal adverse to the applicant. I have before me the decision of the Full Court of the Federal Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs.[10]  The appellant in that case had submitted that the translation before the Tribunal in relation to the concept of house arrest was so faulty as to deny the appellant the opportunity to present his evidence as required by sub-s.425(1)(a) of the Act.

    [10] [2003] 131 FCR 511 at [63]; [2003] FCAFC 171

  13. The Court then looked at the specific claim at paragraph 65 that in the case before it the appellant's complaint was not that the translator was generally incompetent but merely that the translation of the concept of house arrest was faulty. The Court then went to consider that specific complaint. There is no such complaint before this Court. It would be difficult to establish either the generalised complaint about the inadequacy of interpreting as set out in Perera or the specific complaint of a relevant issue as set in WACO. In the absence of such evidence as a transcript of hearing there is no such evidence; those grounds fail.

  14. I am mindful of the fact that the applicant is not legally represented.  Counsel for the Minister has referred to the Tribunal's efforts to overcome the lack of evidence provided by the person who accompanied the applicant to the hearing who may or may not have wanted to give evidence.  In my view it was appropriate for the Tribunal to request after the hearing and allow sufficient time for that person to provide evidence in the form of a statutory declaration.  However the applicant's migration agent indicated that the man concerned did not wish to do so.  In my view there is no jurisdictional error shown in the Tribunal's actions.

  1. The Tribunal did comply with s.424A of the Migration Act and gave the applicant the opportunity to provide written comments.


    The applicant did do so and the Tribunal considered them. 


    The Tribunal had invited the applicant to a hearing and provided an interpreter at the applicant's request. The Tribunal took into account difficulties that the applicant said that she suffered at the hearing through lack of education and nervousness and was particularly anxious to ensure that the applicant was able to understand the interpreter. In my view the applicant was not denied procedural fairness as understood in s.425 of the Migration Act.

  2. I am of the view that the applicant has not demonstrated any jurisdictional error and on my independent examination of the Tribunal decision record and the supporting documents in the Court Book I am not able to discern any arguable case of a jurisdictional error.  I am satisfied that there is no jurisdictional error and accordingly the Tribunal decision is a privative clause decision as defined by


    sub-s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to relief in the way of declarations, certiorari, mandamus or prohibition in any Court.

  3. I am satisfied this is an appropriate matter for an order for costs in favour of the first respondent.  I am satisfied that $5,000.00 is an appropriate figure.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date: 


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