SZMOO v Minister for Immigration & Anor
[2008] FMCA 1581
•28 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMOO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1581 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution by corrupt officials and Public Security Bureau officers in Fuqing City – credibility – procedural fairness – whether the Tribunal was under any obligation to provide to the applicant a transcript or a recording of an interview between the applicant and the Minister’s delegate – Migration Act 1958 (Cth) does not entitle an applicant to be provided with a transcript of visa application interview – no jurisdictional error. PRACTICE & PROCEDURE – Interpreter – Fuqing dialect – where applicant had asked for an interpreter in the Fuqing dialect – where no interpreter in the Fuqing dialect available – where interpreter in the Mandarin language available at court – adjournment – where applicant was offered an adjournment – where applicant elected to proceed with the hearing. |
| Migration Act 1958 (Cth) ss.422B, 424AA, 424A, 474 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 followed SZKOB v Minister for Immigration & Anor [2007] FCMA 1379 |
| Applicant: | SZMOO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1971 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 November 2008 |
| Date of Last Submission: | 13 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms Kelso |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1971 of 2008
| SZMOO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 3rd July 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The Applicant asks the Court for:
a)An order in the nature of certiorari setting aside the Tribunal decision; and
b)An order in the nature of mandamus remitting her application for a visa to “a differently constituted Refugee Review Tribunal to be determined according to law”.
It was explained to the Applicant that, in order to make the orders that she seeks, the Court would need to be satisfied that the Tribunal decision was infected by jurisdictional error. In any event, the Court would not make an order that, on remittal, the application be heard by a “differently constituted” Tribunal, as the Full Court of the Federal Court has expressed doubt that the Federal Magistrates Court has the power to make such an order (SZEPZ v Minister for Immigration and Multicultural Affairs[1]). It is for the Principal Member to determine the constitution of the Tribunal to carry out a particular review.
[1] [2006] FCAFC 107
Background
The Applicant arrived in Australia on 26th September 2007. She applied for a Protection (Class XA) visa on 9th November 2007. In her statutory declaration filed with her application for a visa, the Applicant complained that she had been arrested and detained by the Public Security Bureau when she led a public protest about corrupt police and the Communist government.
A delegate of the Minister interviewed the Applicant about her claim on 18th December 2007. The delegate refused her application for a protection visa on 5th February 2008. The delegate gave these reasons:
I am not satisfied with the applicant’s general credibility and have also formed the view that there remain in her statements, both at interview and in her original Statutory Declaration, other elements which have been artificially inserted into her claims to enhance their Convention related aspects.[2]
[2] Court Book at 57
After her application for a visa was refused, the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Tribunal received a hand-delivered application for review at its Sydney Registry on 7th March 2008. The Applicant was represented by a registered migration agent, Mr Huang.
The Tribunal wrote to the Applicant on 28th March 2008, inviting her to attend a hearing on 29th May 2008. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Fuqing dialect of the Chinese language. She produced her passport issued by the People’s Republic of China at the hearing.
After the hearing, on 3rd June 2008, the Tribunal wrote to the Applicant in accordance with the provisions of s.424A(1) of the Migration Act 1958 (Cth), inviting her to comment on certain information:
·Information given by the Applicant when she applied for a visitor visa to Australia in March 2006;
·Information given by the Applicant when she applied for a visitor visa to Australia in April 2007;
·Information given by the Applicant when she was interviewed by the Minister’s delegate on 18th December 2007.
The Tribunal’s letter told the Applicant that the information, including inconsistencies in her evidence to the Tribunal and the Department, may lead the Tribunal not to accept her particular claims. The letter went on to say:
When the significance of this information as set out above is combined with inconsistencies in your evidence to the Department and the Tribunal about your claims, it may lead the Tribunal to doubt that[3] your credibility more generally; that is; whether you can be believed. If so, it would lead the Tribunal to doubt your claims as set out in your protection visa application of 9 November 2007, the statement attached to your protection visa application, at interview with the Department on 18 December 2007 and your claims as espoused in your evidence to the Tribunal, including your evidence at hearing on 29 May 2008.
Taken together, these issues may indicate that you have not given a truthful account of your past experiences in China, your fear of harm or the reasons for it should you return. If the Tribunal were to reach such a conclusion, it would not be satisfied that you were owed protection by Australia, and as such you would not be entitled tot eh visa you have sought.[4]
[3] sic
[4] Court Book 87
The Tribunal’s letter invited the Applicant to reply in writing by 17th June 2008. On that date, the Applicant’s migration agent forwarded to the Tribunal a statutory declaration by the Applicant in which she commented on and sought to explain the matters raised in the Tribunal’s letter of 3rd June 2008.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 17th June 2008 and handed the decision down on 3rd July. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
In its Decision Record, the Tribunal noted that it had put to the Applicant at the hearing certain matters that caused concern about the credibility of the Applicant’s claims:
The Tribunal indicated that the applicant’s evidence was so inconsistent as to lead it to doubt her evidence.[5]
[5] Court Book 107
Further, the Tribunal stated:
The Tribunal indicated that information had come up in the hearing that would be the reason or part of the reason for affirming the decision under review. The Tribunal indicated that it would like to explain the information to the applicant, ensuring she understood the information and why it was relevant to the decision. The Tribunal indicated that it would state the information and then would ask how the applicant would like to comment on respond.[6]
[6] Court Book 107-108
The Tribunal then set out its concerns about inconsistencies in the Applicant’s evidence and why, when the Tribunal considered those inconsistencies together with the fact that the Applicant had applied for visitor visa to Australia prior to the date that she had claimed to have suffered harm in China, it could lead the Tribunal to doubt that the Applicant was a witness of truth. The Tribunal then stated:
The Tribunal asked the applicant if she understood the information and why it was relevant and whether there was any part of the information the applicant would like the Tribunal to go over. The applicant asked the Tribunal to say it again. The Tribunal asked which part the applicant would like repeated. The applicant said she was very confused and could not remember anything. The Tribunal said it would go over it again.[7]
[7] Court Book 109
The Tribunal went through the information again, but the Applicant claimed that she could not remember anything. The Tribunal indicated that it would go through the information again. When the Applicant had difficulty in answering the matters put to her by the Tribunal, the Tribunal decided to take an adjournment for 15 minutes:
The Tribunal indicated the applicant could seek more time to respond and could ask to respond in writing or at a further hearing. The applicant said she would prefer to respond in writing…The Tribunal adjourned for 15 minutes.
The Tribunal reconvened and indicated that due to the applicant’s reaction it would stop attempting to put the information orally. The Tribunal indicated it would put the information to the applicant and invite her to provide written comments.[8]
[8] Ibid
That is the reason that the Tribunal gave for writing to the Applicant on 3rd June 2008.
The Tribunal’s Findings and Reasons
The Tribunal was satisfied that the Applicant is a citizen of the People’s Republic of China, noting her passport in her own name issued by the People’s Republic of China.
The Tribunal was not satisfied about the Applicant’s credibility, saying:
However, the Tribunal is not satisfied that the applicant is a witness of truth and is of the view that she has not given a truthful account of her past experiences in China. There were significant inconsistencies in her evidence and she has either not explained these inconsistencies or her explanations are not credible. The Tribunal is of the view that it is significant that the applicant made applications for visitor visas to come to Australia prior to when she claimed to suffer any harm in China. This action, when considered together with the inconsistencies in her evidence, leads the Tribunal to conclude that the applicant has not given a truthful account of her past experiences in China.[9]
[9] Court Book 113
The Tribunal then set out why it had reached that conclusion. The Tribunal went on to find:
Viewed cumulatively, for the reasons set out above, the Tribunal finds that the applicant is not a witness of truth and as such the Tribunal is of the view that the applicant has not given a truthful account of her past experiences in China.[10]
[10] Court Book 115
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution if she were to return to China because of her political opinion, imputed political opinion, membership of a particular social group, ethnicity or any other Convention reason at the date of the hearing or in the reasonably foreseeable future. Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom Australia owes protection obligations under the Refugees Convention and therefore she did not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and affidavit in support on 30th July 2008. She filed a Notice of Change of Address for Service on 18th August 2008, but she has not filed any amended application or any written outline of submissions.
The Applicant’s application for review contains 6 “grounds” which are as much of a submission as they are a statement of grounds of jurisdictional error. They are summarised as follows:
a)The Tribunal affirmed the delegate’s decision based on its rejection of the Applicant’s credibility.
b)The Tribunal made is adverse decision about the Applicant’s credibility based on significant inconsistencies in the Applicant’s evidence and the fact that she had made two applications for a visitor visa to enter Australia prior to the time when she claimed to have suffered any harm in China.
c)The Tribunal made a mistake in regarding the Applicant’s two prior applications for a visitor visa as a reason for rejecting the Applicant’s credibility.
d)There is no evidence that the Tribunal considered the Applicant’s claims, which were given to the Tribunal in the Applicant’s statutory declaration in response to the Tribunal’s s.424A(1) letter.
e)The Tribunal’s finding of “significant inconsistencies” was mainly based on a comparison of the Applicant’s evidence at the Departmental interview with her evidence at the Tribunal hearing. There is no evidence that the in the Tribunal’s decision that the Tribunal considered the Applicant’s claims given in response to the Tribunal’s letter under s.424A (1).
f)It is unfair that the Applicant was not provided with a recording or a transcript of her interview with the Minister’s delegate and the Tribunal erred in law by not providing this recording or transcript. The inconsistencies could have arisen in one or more of these ways:
·The interpreter at the interview could have made mistakes or misunderstood the questions or the Applicant’s answers;
·The officer from the Department who conducted the interview could have made mistakes or misunderstood the Applicant’s answers;
·The Applicant may have misunderstood the questions.
The First Respondent, the Minister for Immigration and Citizenship, filed a Response on 13th August 2008, denying that the Tribunal decision is affected by jurisdictional error and claiming that:
i)The application seeks review of the Tribunal’s factual findings, including findings of credibility, which would involve the Court in merits review; and
ii)The Tribunal was not obliged to provide to the Applicant a recording or a transcript of the interview with the Minister’s delegate.
The application for judicial review was listed for final hearing on 13th November 2008. At the First Court Date, on 18th August 2008, the Applicant had specifically requested an interpreter in the Fuqing dialect of Chinese and an interpreter in that dialect was ordered. However, on the day of the hearing, no interpreter in the Fuqing dialect was available and an interpreter in the Mandarin language was provided. The Applicant attended Court with a friend to support her, a young woman who apparently speaks both Mandarin and Fuqing.
Due to the unavailability of an interpreter in the Fuqing dialect, the Applicant was offered the opportunity of an adjournment to another day, when an interpreter in the Fuqing dialect would be available. Ms Kelso, the solicitor appearing for the Minister, did not object to an adjournment. However, after consulting with her friend, the Applicant told the Court that she wished to proceed with the hearing on that day and would accept the services of the Mandarin interpreter.
I note that the Applicant was offered an adjournment without objection from the lawyer for the Minister but chose to proceed with the Mandarin interpreter. I also take note of the fact that it is public knowledge that Mandarin is the official language of the People’s Republic of China. The hearing proceeded and the Applicant did not appear to have any difficulty in understanding what was said by the interpreter.
The Applicant told the Court that she could not afford a lawyer and her application was prepared for her by a friend. She said that the decision of the Refugee Review Tribunal was based on her two previous applications for a visa to enter Australia. She submitted that this was “pretty unfair” and it was even more inappropriate for the Refugee Review Tribunal to use this as a basis for deciding the application.
The Applicant told the Court that on 6th July 2007 she was arrested and detained for a month. She was regarded as someone who disturbed society. She repeated that it was unfair for the RRT to use the two rejections of her earlier visa applications as a ground for rejecting her application for a protection visa. When she had the interview with the officer of the Department her answers were not the same as in her evidence to the Refugee Review Tribunal. The Tribunal did not provide any evidence to show that she gave different answers to the Department. The Applicant submitted that it was quite possible that the interpreter at the interview made mistakes; therefore it was not right that she was not provided with a tape of the Departmental interview. It was even more wrong for the Tribunal not to provide evidence supporting its decision.
Ms Kelso, who appeared for the Minister, submitted that the Tribunal’s credibility findings were reasonably open to it on the available evidence and, in any event, were findings of fact par excellence and not open to review by the Court (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[11] at [67] per McHugh J). No jurisdictional error is disclosed simply because the Tribunal had regard to the Applicant’s earlier applications for visitor visas. They were considered for the purpose of determining the Applicant’s credibility. In assessing the Applicant’s credibility, the Tribunal was not precluded from considering the earlier visa applications simply because they were made before the occurrence of the claimed harm.
[11] (2000) 168 ALR 407; [2000] HCA 1
The Tribunal’s s.424A letter clearly foreshadowed the possibility that the Tribunal might disbelieve some of the Applicant’s claims and expressly directed her attention to the earlier visitor visa applications. The Tribunal had put to the Applicant on numerous occasions during the hearing that it had concerns and reservations about her evidence.
Ms Kelso submitted that the Applicant’s assertion that the Tribunal failed to consider here response to the s.424A letter lacks any foundation in fact. It set out the contents of her response in its entirety in its Decision Record and specifically referred to her response on three separate occasions in its findings and reasons. The Tribunal was entitled to accept or reject or give such weight to that evidence as it thought appropriate (see Lee v Minister for Immigration and Multicultural and Indigenous Affairs[12] at [27]).
[12] [2005] FCA 464
It was also submitted that no jurisdictional error arises by reason of the Tribunal’s failure to provide the Applicant with a transcript or record of her interview with the delegate (SZKOB v Minister for Immigration and Citizenship[13] at [13] per Flick J). There was no unfairness.
[13] [2007] FCA 1949
Further, Ms Kelso submitted that no error is shown by the fact that the “significant inconsistencies” identified by the Tribunal were mainly based on a comparison of her evidence to the delegate with her evidence to the Tribunal. The Tribunal was entitled to do so.
Ms Kelso went on to submit that the ‘information’ in respect of the Applicant’s earlier visitor visa applications did not in fact constitute ‘information’ of a kind referred to in s.424A (1), because the earlier visa applications did not contain in their terms a rejection, denial or undermining of the Applicant’s claims to be claims to be a refugee (having been made prior to the claimed harm). To the extent that findings were made as to inconsistencies, s.424A (1) does not apply. Further, it is submitted that the only information relied on by the Tribunal was that provided by the applicant, to which the exceptions in s.424A(3)(b) and (ba) apply.
Conclusions
Taking the Minister’s last point first, I am not satisfied that s.424A(3)(b) and s.424A(3)(ba) necessarily apply in the circumstances submitted. The Applicant’s earlier applications for visitor visa applications to enter Australia were made in March 2006 and April 2007. However, the Applicant claimed that the harm she suffered in China, on which her application for protection visa relies, did not take place until 6th July 2007. Consequently, the information that the Applicant provided for the purpose of those two applications can hardly be said to be information that the Applicant gave for the purpose of the application for review; thus, s.424A(3)(b) cannot apply. Again, the information that the Applicant provided for the purpose of those two applications cannot be said to be information that the Applicant gave during the process that led to the decision that is under review. Thus, s.424A(3)(ba) cannot apply.
However, nothing turns on that point. It is clear that the Tribunal made considerable efforts at the hearing to offer the Applicant the opportunity to comment on that information (see at [13]-[16] above) and thereby comply with the procedure provided by s.424AA. Eventually, after going through the procedure twice and receiving nonsensical answers from the Applicant such as:
When the Tribunal asked for an explanation, the applicant said that she is 46 or 47 and she cannot remember. The Tribunal indicated it would not think being 46 or 47 would be a reason you would not be able to remember.[14]
The Tribunal gave up the attempt and informed the Applicant that it would write to the Applicant and invite her to provide written comments.
[14] Court Book 109
I note that the Applicant was provided with an interpreter in the Fuqing dialect at the hearing[15] so the Applicant’s obtuse answers to the Tribunal could hardly be explained by any language difficulty.
[15] Court Book 79
In my view, the Tribunal complied in every respect with the requirements of s.424A in putting to the Applicant in writing its concerns about her credibility when considering her earlier applications for visitor visas. It is also clear that the Tribunal did consider the Applicant’s statutory declaration in reply to its s.424A letter. It set out the entire text of the statutory declaration in the Decision Record[16] and it referred to the Applicant’s declaration in its Findings and Reasons[17].
[16] Court Book 111-112
[17] Court Book 113-115
There was no procedural unfairness in the Tribunal’s procedure. The ground in 1-5 of the Applicant’s application has not been made out.
The Tribunal was under no obligation to provide to the Applicant a copy of a transcript or a recording of the interview with the Minister’s delegate. SZKOB v Minister for Immigration and Citizenship[18] is a decision on appeal from this Court[19] and is, of course, binding. In SZKOB, Flick J dealt with this very issue at [13]-[14]:
[13]The content of the requirements of procedural fairness is to be determined by reference to the context in which a particular dispute arises including, in particular, the legislative regime being administered. In the present circumstances, s 422B of the Migration Act 1958 (Cth) provides that Div 4 of Pt 7 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”. Neither that Part nor any other provision of the 1958 Act requires a claimant to be provided with a transcript or a tape recording of an interview with the Department.
[14]Even in the absence of s 422B, it is not considered that the common law rules of procedural fairness require the provision of a transcript or a tape recording of the interview …
[18] supra
[19] SZKOB v Minister for Immigration & Anor [2007] FMCA 1379
The Tribunal did not fall into jurisdictional error in not providing to the Applicant a transcript or a recording of her interview with the Minister’s delegate. This ground, set out in paragraph 6 of the application fails.
The Applicant’s other submissions are essentially a cavilling at the Tribunal’s factual findings and are therefore no more than an attempt at merits review. It is well established that merits review is not available in a Court conducting judicial review of a decision of the Refugee Review Tribunal.
The Tribunal’s decision was based on its adverse credibility finding regarding the Applicant. There was no error in the way the Tribunal went about its task and it was open on the evidence before the Tribunal to make the finding that it did about the Applicant’s credibility.
The Applicant is not legally represented, but she has had the benefit of legal advice from an experienced solicitor on the Refugee Review Tribunal legal advice panel. My reading of the Tribunal decision and the supporting documents does not disclose any arguable jurisdictional error. The Tribunal complied with ss.425 and 425A, and even gave the Applicant just over two months’ notice of the hearing. The Tribunal provided the Applicant with an interpreter in the dialect of her choice. In my view the Tribunal bent over backwards to comply with ss.424AA and 424A in making clear to her what information was causing it concern, what the effect of that would be, giving the Applicant the opportunity to comment in writing, and then taking her reply into account. The fact that the Tribunal does not accept the Applicant’s explanations or comments does not mean that the Tribunal does not consider those explanations or comments.
There is no jurisdictional error. The Tribunal decision is a privative clause decision. It is final and conclusive and not subject to the orders in the nature of certiorari and mandamus that the Applicant seeks in her application (s.474).
The application will be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 25 November 2008