SZMLR v Minister for Immigration

[2008] FMCA 1262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1262

MIGRATION – Review of Refugee Review Tribunal decision – refusal of  protection visas – applicant claiming political persecution in China – applicant not believed – applicant’s wife giving evidence at the Tribunal hearing – whether applicant’s wife making her own protection visa claims considered – no reviewable error found – application dismissed.

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

Abebe v Commonwealth of Australia (1999) 197 CLR 510
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZGME v Minister for Immigration (2007) 247 ALR 467
SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270

First Applicant: SZMLR

Second Applicant: SZMLS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1669 of 2008

Judgment of: Driver FM

Hearing date: 4 September 2008

Delivered at: Sydney

Delivered on: 4 September 2008

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms S Hanstein
Australian Government Solicitor

ORDERS

1. The applicants are to pay the outstanding setting down fee of $447 within seven days or apply for a waiver of that fee.

2. The application is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1669 of 2008

SZMLR

First Applicant

SZMLS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 3 June 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. 

2. There are two applicants, a husband (the first applicant) and a wife (the second applicant).  The applicant wife claimed protection as a member of the first applicant's family group.  Background facts relating to the protection visa claims and the Tribunal decision on them are set out in the Minister's outline of written submissions filed on 29 August 2008.  I adopt as background for the purposes of this judgment paragraph 3 through to paragraph 9 of those written submissions:

   The applicants, a husband and wife from Fujian Province in China, arrived in Australia on 9 October 2007. The applicant husband submitted an application for a protection (Class XA) visa on 23 November 2007 (relevant documents “RD” 1-25). The applicant wife was included in the application but did not make her own claims to be a refugee (RD 26-31). The applicant husband's claims for protection were set out in a statutory declaration accompanying the application (RD 36-40). The application was refused by a delegate of the first respondent on 29 January 2008 (RD 52-63).

   The applicants submitted an application for review to the Tribunal on 29 February 2008 in respect of the delegate’s decision (RD 65-68). The applicants attended a hearing before the Tribunal on 7 May 2008 (RD 79-80) to give evidence and present arguments in support of their application with the assistance of a Mandarin interpreter. The applicants' daughter also gave evidence at that hearing. On 14 May 2008, the Tribunal received statutory declarations made by the applicants (RD 98-102), a statement of the applicants' daughter (RD 103-111) and a medical prescription and receipt (RD 112).

   The Tribunal affirmed the delegate's decision not to grant the applicants protection visas in a decision signed on 22 May 2008 and handed down on 3 June 2008 (RD 117-134).

   Applicant husband’s claims

   In summary, the applicant husband claimed that he was a fisherman from Beizhai village (RD 36). In 2003, corrupt officials sold the sea north of the village to a large construction company owned by Mr Li and his family and the village fishermen were excluded from the area without compensation (RD 37). The applicant husband organised the villagers to appeal to higher authorities but he was arrested by the Public Security Bureau (PSB) for inciting an 'anti-government movement', detained for two weeks and fined (RD 37). He remained in hospital for one month following his release as a result of beatings he had received whilst in detention (RD 37). The applicant husband claimed that he and his family were subject to ongoing harassment and unfair treatment by the police, corrupt officials and Mr Li's family and it became difficult for them to have any normal life. He attempted, unsuccessfully, to leave China in late 2005 (RD 38).

   The applicant husband further claimed that in January 2007, the sea to the south of the village was confiscated by the local government and sold to private businessmen and once again the local fisherman received no compensation (RD 38). The applicant husband was involved in organising a petition to the national government. These activities came to the attention of the PSB and he and other villagers were arrested and sent to work on a military construction site. He fell ill and was allowed to return home in July 2007 (RD 39-40). The applicants eventually left China in October 2007 with the assistance of friends. The applicant husband claimed that his family had been implicated and were under investigation by the PSB and that he would be subjected to persecution if he returned to China (RD 40).

   Tribunal’s findings and reasons

   The Tribunal was not satisfied on the available evidence that the applicant husband suffered from any medical condition caused by ill treatment by the authorities in China, which should be taken into account in assessing the application (RD 128, [66]). Nor was it satisfied that the level of interpreting at the hearing affected the applicants' ability to give evidence and present arguments (RD 128, [67]).

   The Tribunal considered a number of evidentiary concerns, which led it to doubt the veracity of the applicant husband's claims and his credibility generally (RD 129-131). The Tribunal went on to consider, and reject, the entirety of the chain of events in China alleged by him (RD 131-132). The Tribunal gave some weight to the oral evidence of the applicant wife and the applicants' daughter but concluded that it did not overcome its concerns about the applicant husband's credibility (RD 132, [83]). The Tribunal concluded that the applicant did not have a well-founded fear of persecution and was satisfied that he had applied for a protection visa not for the reasons claimed but because he wanted to stay in Australia (RD 132-133, [84]).

3. These proceedings began with a show cause application filed on 30 June 2008. Prior to coming on the bench to hear this matter, I was informed by my associate that the first applicant would seek the opportunity to rely upon an amended application. When I came on the bench and raised that with the first applicant, he had difficulty understanding what I was talking about. Ultimately, when the amended application was shown to him, he said that he did wish to rely upon it. I permitted him to do so and gave leave for the amended application to be filed in Court.

4. There are two grounds in the amended application:

   1. The Tribunal committed jurisdictional error by taking the view that it was prevented by law from considering any claims for protection advanced by the Second Applicant.

   Particulars

   The Tribunal took the view that, because she had not made specific claims under the convention at the time of applicant, the Second Applicant could not make such claims at a later date. The Tribunal failed to appreciate that a person who at the time of application satisfied cl 866.211(b) could at the time of decision satisfy 866.221 on the basis of independent claims subsequently advanced.  The Second Applicant did advance such claims but the Tribunal considered it was lawfully obliged not to consider them.

   2.The Tribunal did not give the Applicants a proper hearing as required by section 425 of the Migration Act 1958.

   Particulars

   The hearing was conducted with the Applicants speaking Mandarin Chinese.  The Tribunal did not appreciate that the Applicants’ agreement to speak that language rather than their own was a result of belief engendered by the Tribunal that it preferred them to speak in Mandarin.  As a result, the applicants were unable to fully articulate their claims.

5. The first applicant, who was the only applicant to appear today, said that he had reduced his submissions to writing in the Chinese language.  Those submissions were read by the interpreter into the English language.  It was apparent that the submissions substantially restated the grounds in the original application.  Those grounds are expressed discursively in that application but are summarised in paragraph 10 through to paragraph 15 of the Minister's written submissions, which I adopt for the purposes of this judgment with minor amendments:

   The grounds of the application, set out in seven enumerated paragraphs, are lengthy and it is difficult to identify the precise grounds of review relied upon.

   Paragraphs 1-3 of the grounds of the application appear to be interrelated. The complaint is that the Tribunal failed to consider the applicants' application 'carefully and properly' ('Ground 1').

   Paragraph 4 of the grounds of the application appears to contain a distinct ground of review, the nature of which is unclear ('Ground 2').

   Paragraph 5 of the grounds of the application appears to contain a distinct ground of review to the effect that the Tribunal failed to consider the circumstances of the applicant wife and the applicants' daughter ('Ground 3').

   Similarly, paragraph 6 of the grounds of the application alleges that the Tribunal failed to consider the evidence of the applicants' daughter ('Ground 4').

   Paragraph 7 of the grounds of the application alleges that the Tribunal 'made its decision actually based on unwarranted assumption' and breached the requirements of ss.424AA or 424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”) ('Ground 5').

6. I pressed the first applicant about which application he was relying upon.  He ultimately elected to rely on both of them. 

7. I have before me as evidence the first applicant's affidavit filed with his original application on 30 June 2008 and the book of relevant documents filed on 11 August 2008.  I received the book of relevant documents over the first applicant's objections.  Upon hearing from him on that issue, it was apparent that his objections simply related to disagreement with the Tribunal decision.  He denied receipt of the book of relevant documents but I am satisfied that it was sent to him at his nominated address for service by express post on 8 August 2008. 

8. Both the original and the amended application raised an issue of inadequate interpretation. The amended application puts this as a breach of s.425 of the Migration Act. That is the proper basis on which the assertion should be considered. I accept that a tribunal may fail to meet its obligations under s.425 if the standard of interpretation is so poor that an applicant cannot understand the proceedings or cannot make himself understood. I also accept that a tribunal may breach s.425 if interpretation is defective in relation to particular issues that are material to the outcome of the case before the Tribunal. In the present case, the applicants had requested a Mandarin interpreter for the purposes of the Tribunal hearing. The Tribunal had arranged for an interpreter able to speak both Mandarin Chinese and the Fuqing dialect. The Tribunal records at paragraph 39 of its decision (RD 122) that it spent a relatively long period of time seeking the applicants’ views about which dialect they wished to communicate in. They both confirmed that Mandarin was appropriate as noted in the hearing response form.

9. There is no indication from the record of the Tribunal hearing in its decision that the Tribunal had any preference for the Mandarin language or that there were any difficulties in interpretation at the hearing.  However, after the hearing the first applicant asserted, in a statutory declaration, that he had been disadvantaged by choosing to speak in Mandarin rather than in the Fuqing dialect.  The Tribunal considered that assertion but rejected it (RD 128, paragraph 67 of the Tribunal's reasons).  There is nothing before me to suggest that the Tribunal was in error in reaching that conclusion. 

10. Curiously, this Court had a very similar experience to that of the Tribunal.  In their show cause application filed on 30 June 2008, the applicants claimed to speak Mandarin Chinese and requested an interpreter.  At the first court date, the first applicant appeared in person and was assisted by a Mandarin interpreter.  He completed an information sheet and in response to question 6 on that sheet, enquiring about the need for an interpreter, he requested a Mandarin interpreter.  The word "Fuqing", written underneath, had been ruled through and initialled.  He also requested a Mandarin interpreter for the purposes of the Minister’s panel advice scheme. 

11. I questioned the first applicant about his language at the first court date hearing on 21 July 2008.  I noted what the applicant had put to the Tribunal after the Tribunal hearing and offered him the assistance of a Fuqing speaking interpreter for the hearing today.  He declined that offer and asked for a Mandarin speaking interpreter.  I noted in the orders I made on that day that the first applicant was offered a Fuqing speaking interpreter for the final hearing but had insisted upon being given a Mandarin speaking interpreter.  Taking a cautious approach, my associate arranged for two interpreters to attend Court today.  Ms Shi attended for the purposes of interpreting to and from the Mandarin language.  Ms Chen attended for the purposes of interpreting to and from the Fuqing dialect.  Notwithstanding his request at the first court date, the first applicant asked for the assistance of Ms Chen to interpret to and from the Fuqing dialect. 

12. The approach taken by the applicant to the issue of interpretation in these proceedings is, to say the least, odd.  I see no jurisdictional error in relation to the issue of interpretation before the tribunal. 

13. In respect of the other grounds in the original application, I agree with and adopt for the purposes of this judgment, with amendments, paragraphs 16 through to 26 of the Minister's written submissions:

    Ground 1

    The applicants allege that the Tribunal failed to consider their application 'carefully and properly' and complain that the applicant husband was 'subjected to huge mental and psychological pressure at the hearing', was confused and could not understand what was being said.

    No particulars are provided as to how the Tribunal did not 'carefully and properly' consider the application. For example, the particulars do not allege that the Tribunal failed to consider a particular aspect of the applicants' claims.

    The Tribunal also expressly considered, and rejected, the applicant's claim that he had suffered injuries, which affected his ability to give evidence. The Tribunal's statement in this regard (at RD 128, [66]), is no more than a finding of fact relating to the circumstances of the applicant husband, which was reasonably open on the available evidence.

    Ground 2

    The nature of the complaint in Ground 2 is unclear. The particulars of this ground appear to do no more than seek to re-agitate the protection claims of the applicant husband and raise factual matters that were clearly addressed by the Tribunal. No jurisdictional error is established.

    Grounds 3 and 4

    These grounds allege, in turn, that the Tribunal failed to consider that both the applicant wife and daughter had been 'deeply implicated' as a result of the applicant husband's activities in China and had also been subject to persecution, and failed to consider the daughter's evidence.

    The applicant wife and the daughter gave oral evidence at the hearing (RD 126, [55] and [56]) and submitted a statutory declaration and a statement respectively after the hearing (RD 100-111). The Tribunal had regard to that evidence and material (RD 132, [80] and [83]). However, that did not overcome its concerns about the applicant's credibility. The weight to be given to evidence or particular pieces of information is for the Tribunal to assess (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 580, [197]).

    Ground 5

    The applicants allege that the Tribunal 'made its decision actually based on unwarranted assumption' and breached the requirements of ss.424AA or 424A of the Act. No meaningful particulars are provided to support any aspect of this ground, and it is therefore largely meaningless.

    In any event, there was no 'information' falling within the obligations in ss.424AA or 424A. The Tribunal quite clearly relied upon the applicants' own evidence and its assessment of that evidence and independent country information. Such 'information' does not constitute a rejection, denial or undermining of the applicant husband's claim to be a person owed protection obligations, and is therefore not 'the reason, or a part of the reason, for affirming the decision that is under review' (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]). Further, that 'information' falls within the exemptions in s.424A(3)(b) and (ba), and (a) respectively. Those exclusions apply with equal force to s 424AA (SZLXI, supra at [27]).

    Further, even if s.424AA(b) was engaged, the applicants have not established any breach of those obligations.

14. The remaining issue is whether the Tribunal erred in failing to consider a complaint of persecution by the second applicant.  She had not made any claim of her own in the protection visa application.  The claim for protection was as a member of the first applicant's family.  However, she had prepared a statutory declaration for the purposes of the Tribunal proceeding (RD 100 to 102).  I note that the declaration was prepared and submitted to the Tribunal after the Tribunal hearing. 

15. It is arguable that paragraph 7 of the second applicant's statutory declaration was a claim of persecution as a member of a particular social group constituted by members of the family of the first applicant and related to his political opinions or perhaps on the basis of imputed political opinion by reason of her association with her husband.  That paragraph reads:

    I have to plead you with your kind understanding of our difficult situation.  As a matter of fact, owing to my husband’s political opinions and political actions against the Chinese government, I have also personally subjected to serious discriminations in my hometown; and I have often been subjected to humiliations in the public places.  Whoever dared to speak with me must be threatened or warned by Mr Ai Qing Li’s families or relatives or friends and those local officials or police who have been bribed or who have some particular contacts with Mr Li’s family.  I have indeed subjected to huge pressure; and I have been treated as a “bad woman” with “bad” family background; and I have been subjected to huge mental pressure; and frankly speaking, I do believe that I have been subjected to serious depression owing to my sufferings in the past.  It is really impossible for me to have any normal livings in China!

16. It is also arguable that the second applicant attempted to raise a claim of persecution at the Tribunal hearing.  At paragraph 55 of the Tribunal decision, the Tribunal states (RD 126):

    [The second applicant] cried a lot in the course of the hearing.  She told the Tribunal that she hopes to stay in Australia and that she does not want to go back to China.  She said she was treated like a “dog” in China.  She said she was bullied, she said she hopes to stay here and does not want to go back to China.  She said that nobody in China will talk to her.  The Tribunal discussed with [the second applicant] the fact that she had not made separate refugee claims herself and she had essentially relied on her husband's claims and as such the Tribunal cannot deal with any separate claims that she might be making.  The Tribunal indicated to her that by virtue of the fact that she has relied on her husband's claims, if her husband is not successful, then she would be unsuccessful as well.  [The second applicant] again cried and told the Tribunal that she was bullied in China.

1. If the second applicant was attempting to raise orally the claim she later raised in writing in her statutory declaration, then the Tribunal would have fallen into error in declining to consider that claim.  It was open to the Tribunal to consider separate claims by the second applicant, notwithstanding that she had originally claimed as a member of the first applicant's family unit: SZGME v Minister for Immigration (2007) 247 ALR 467. However, if that is what occurred, there was in the final result no jurisdictional error because the hypothetical claim by the second applicant was not severable from the first applicant's political claim. The second applicant was apparently claiming to have been harmed because of her husband's political opinion. The Tribunal took into account the evidence given by the second applicant and by the applicant's daughter. However, the Tribunal rejected the first applicant's factual claims on credibility grounds. The Tribunal's adverse credibility finding in relation to the first applicant's claims was open to it on the material before it.

2. Once the first applicant's claims were disposed of, any claim that the second applicant may have been making, based upon her husband's political opinion, was a shell without any content. 

3. I conclude that the Tribunal decision is free from jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I will so order. 

4. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,000. Scale costs in this instance would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicants pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  8 September 2008