SZMTS v Minister for Immigration - [2009] FMCA 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 180

MIGRATION – Review of RRT decision – where applicant’s evidence contained inconsistencies – whether this constituted “information” – relationship between s.424A and s.424AA – quality of translation considered.

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

SZLXI v Ministerfor Immigration & Anor [2008] FCA 1270
SZGYM v Minister for Immigration& Anor [2007] FCA 1923
SZJZE v Minister for Immigration& Anor [2007] FCA 1653
WACO v Minister for Immigration & Anor [2003] FCAFC 171

Applicant:

SZMTS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2459 of 2008

Judgment of:

Raphael FM

Hearing date:

4 March 2009

Date of Last Submission:

4 March 2009

Delivered at:

Sydney

Delivered on:

4 March 2009

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2459 of 2008

SZMTS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 22 December 2007. On 31 December 2007, he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 5 February 2008, a delegate of the Minister, who had interviewed the applicant, determined not to grant a protection visa. On 7 March 2008, the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing at the Tribunal and on 20 August 2008 the Tribunal decided to affirm the decision under review. That decision was handed down on 28 August 2008.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was the Convention ground of political opinion. The applicant told in his statutory declaration annexed to his applications [CB 30-34] that he was a successful chicken farmer who employed a number of people. In July 2007 two of his employees were delivering eggs to town when they were involved in a motor vehicle accident with a person who turned out to be an officer of the PSB. One of the employees was quite badly injured and spent a month in hospital.
The applicant's vehicle was ruined and all the eggs were broken. Neither the applicant nor his employees received any compensation as a result of the accident. The employees became particularly distressed about this and decided to take the matter up with the authorities. They tried to have the police officer prosecuted but this was not successful. The applicant tells how the efforts of his employees came to the notice of the PSB and caused them to visit his chicken farm from time to time and make inquiries. The employees wanted to go to Beijing to lodge an appeal against the conduct of the local authorities. In October 2007, the applicant was told that his employees had been arrested and he said that from then until December 2007 he:
“…secretly organised my staff as well as some relatives and friends to distribute propaganda materials against the Communist dictatorship. In those propaganda materials, I said that there would be no genuine justice, no genuine human rights, and no genuine freedom unless the communist dictatorship had been overthrown … those propaganda materials were not only distributed in Fuqing area; but also posted to many government agencies from Fuqing to Fuzhou and to Beijing. However, for my safety, all those propaganda materials were anonymous.” [CB 33]
The applicant says that on 20 December 2007 two other members of his staff were arrested whilst distributing propaganda materials in Fuzhou. He thought he would be in trouble. On 21 December 2007, he left China from Guangzhou and the police then went to his home with an arrest warrant.
At the Tribunal hearing, the applicant was asked to provide particulars of his claims. The story, which has been set out above, was essentially repeated. However, there were a number of inconsistencies between the oral evidence and what was contained in the written document. These inconsistencies were pointed out to the applicant. See for example [CB 85] where there is a discussion between the Tribunal and the applicant about the dates of the workers' arrests in early October.
The Tribunal questioned the applicant in some detail about the propaganda material and the manner of its distribution. The Tribunal expressed concern as to how the police would have known it was the applicant who was responsible for this material when it was anonymous. The Tribunal asked the applicant how much material had been produced and his evidence was that there were very many pamphlets sent out every few days over a period of about three months. He told the Tribunal that there were more than 10 people posting out pamphlets. The Tribunal noted that the applicant's answers to questions about what was in the pamphlets and what each of the people did in regard to their distribution indicated a surprising lack of knowledge.
“The Tribunal noted that since they did mail out so often it would expect the visa applicant to know of more people that they sent the pamphlets to.”[CB 86]
The Tribunal also questioned the applicant about his contact with the police. It pointed out at [CB 87] some inconsistencies in his statement and oral evidence with regard to that. The Tribunal put to the applicant the independent country information about the difficulty that persons who are of interest to the Chinese authorities would have in leaving China and expressed the view that the PSB would have placed his name on an alert list even though they did not know exactly when he was going to depart.
In its findings and reasons commencing at [CB 89], the Tribunal points to what it describes as the applicant's problematic evidence. The Tribunal expressed concern about the inability of the applicant to spontaneously answer the Tribunal's questions, particularly about the mail out, and the fact that he had changed his evidence when the Tribunal noted a problem with evidence that had already been given. The Tribunal took the view that the applicant was making up his evidence along the way.
The Tribunal repeated its concerns about the applicant's ability to leave the country given the long history of police interest in his place of work and his employees.
“Viewed cumulatively, the problems with the applicant's evidence outlined above have led the Tribunal to conclude that the applicant was not a credible witness. Thus, the Tribunal does not accept that the applicant's workers were involved in an accident with the police, that they appealed to various levels of government or that they were questioned and detained. The Tribunal does not accept that the applicant decided to become involved and that he distributed anti government material which led him to come to the adverse attention of the authorities. The Tribunal does not accept that the authorities attended the applicant's house with a warrant for his arrest or that police have sealed his chicken farm. The Tribunal does not accept that his home has been searched or that his staff and wife have been questioned or investigated by police.” [CB 92]
The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations and affirmed the decision of the delegate.
On 22 September 2008, the applicant applied to this Court for review of the decision of the Tribunal. Although the applicant speaks no English, the application form provides two substantive grounds for asserting that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The first ground is that the Tribunal failed to comply with its obligations under s.424AA of the Migration Act 1958 (Cth) (the “Act”). It notes:
“The Tribunal brought to the applicant's attention that some of his evidence was inconsistent and had changed. The Tribunal noted some of the inconsistencies in his evidence that had been the reason for the delegate's decision to refuse his application and noted that in his statement of claims he did not mention the workers handing out pamphlets before he did.”
The applicant argues that the Tribunal considered certain pieces of information as “the reasonable part of the reason for affirming the decision of the review.” These pieces of information were:
“- …some of his evidence was inconsistent and had changed.
- …some of the inconsistencies in his evidence that had been the reason for the delegate's decision to refuse his application and
- …that in his statement of claims he did not mention the workers handing out pamphlets before he did.”
Section 424AA of the Act is an important section for the provision of natural justice to an applicant. It is a fairly recent insertion into the Act. It is in the following form:
424AA “If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
It comes before s.424A but the section is not mandatory as that latter section is. There is no necessity for a Tribunal to comply with s.424AA unless it proposes to act in accordance with s.424A(2A) as a way of ensuring that information that would be the reason or part of the reason for affirming the decision under review is given to an applicant and the applicant is made aware of why it is important. In other words, if the Tribunal has a piece of information that it would be required to tell the applicant about under s.424A, it can do it in the manner prescribed by s.424AA or in the manner prescribed by s.424A(1) and (2).
The first thing that a Tribunal has to do is to decide whether or not there is any “information” and it is only if such information exists that these sections come into play. The “information” which the applicant describes in this particular case is information about inconsistencies. In SZLXI v Ministerfor Immigration & Anor [2008] FCA 1270, Cowdroy J sitting on appeal from the Federal Magistrates Court states at [26]:
“The Tribunal found that there were inconsistencies in the appellant's evidence. Scarlett FM noted that it was well established that inconsistencies in evidence did not constitute “information” for the purposes of s.424A of the Act (see SZBYR & Anor v Minister for Immigration & Citizenship & Anor (2007) 235 ALR 609 at [18]) and accordingly do not constitute “information” for the purposes of s.424AA.
[27] … Accordingly the Court considers that what is not “information” for the purposes of s.424A(1) of the Act is also not “information” for the purposes of s.424AA.”
In the instant case the applicant is seeking the same relief as sought before Cowdroy J and which his Honour explained was unavailable. There was no obligation for the Tribunal to ask the applicant to comment or respond to information when the information related to inconsistencies and was therefore not “information” for the purposes of the sub-section. In any event, a reading of the Tribunal's decision would seem to indicate that the applicant was given an opportunity to comment upon the inconsistencies, albeit perhaps not in the strict terms of s.424AA.
The second ground of the application was in the following form:
“Apart from the information mentioned above, the Tribunal has also considered the following piece of information as reason or part of reason in its decision:
‘The applicant's evidence about his departure is also at odds with the country information set out above which notes that Chinese citizens will not be allowed to leave China in various circumstances…’
However, the Tribunal failed to give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information…”
This ground would appear to have two points of reference. The first is the information contained in the earlier claim about the inconsistencies. As I have already said, I am satisfied that an inconsistency does not constitute information for the purposes of the sub-section and there is therefore no obligation to comply with s.424A(1) of the Act. The second leg of the ground relates to the departure information. The departure information is information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. Information of that type is excluded from the requirements of s.424A(1) by the provisions of s.424A(3)(a).
Before me today, the applicant rehearsed the content of his application but he also said that he didn't think that his evidence was inconsistent, and to the extent that it might have been, this was the fault of the interpretation. He said that his oral evidence had been based upon his written claims and if there were inconsistencies that must have been inconsistency in interpretation.
Now, if the applicant was able to show me through the transcript that his evidence was truly not inconsistent with his written claims and that the Tribunal had thus misunderstood what was being said, it is very probable that the Court would have found a jurisdictional error to have existed. But the applicant did not do this. He did not produce a transcript and the Court is left with only the record provided in the Tribunal's grounds and reasons. These seemed to indicate a fairly clear history of inconsistency which was also noted by the delegate at [CB 49].
If the applicant is making a complaint about the quality of the translation which would constitute a claim that s.425 of the Act has not been complied with, he would have to do more than to make a bold assertion at the hearing. While the Court accepts that inadequate interpretation can amount to a breach of s.425: SZGYM v Minister for Immigration& Anor [2007] FCA 1923, there is a strong obligation upon the applicant to establish inadequate interpretation: SZJZE v Minister for Immigration & Anor [2007] FCA 1653 where his Honour, Middleton J said at [21]:
“With respect to the first ground, in order for the appellants to succeed they need to establish by prohibitive evidence that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants [see authorities there cited].
It should also be remembered that in WACO v Minister for Immigration & Anor [2003] FCAFC 171 the Full Bench said at [66]:
“However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate to permit the idea or concept being translated to be communicated.”
I order that the application be dismissed and that the applicant pay the respondent's costs which I assess in the sum of $2,500.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 6 March 2009