SZNCM v Minister for Immigration
[2009] FMCA 235
•16 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNCM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 235 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision – applicant is a citizen of China – where applicant had claimed fear of persecution on the basis of his political opinion – allegation of apprehension of bias – where applicant claims to have been under pressure at Tribunal hearing – where applicant claims failure by interpreter – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 425,474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Re Refugee Review Tribunal; Ex-parte H (2001) 179 ALR 425 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 Re Minister for Immigration & Multicultural Affairs; Ex-Parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 |
| Applicant: | SZNCM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3451 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 March 2009 |
| Date of Last Submission: | 16 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2009 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms McDonald |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
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 3451 of 2008
| SZNCM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant asks the Court to review a decision of the Refugee Review Tribunal that refused to grant him a protection visa. He asks the Court to make a declaration that the decision was invalid and contrary to law. He also asks the Court to make orders:
a)That the decisions and each of them referred to above be quashed or set aside; and
b)That the matter be remitted to a differently constituted Refugee Tribunal to be determined in accordance with the law.
It has been explained to the Applicant that in order for the Court to grant relief by making orders of this nature that the Court must be satisfied that the Tribunal decision is effected by jurisdictional error.
In respect of the Applicant's claim for an order quashing or setting aside "the decisions", it has been explained to the Applicant that the Court does not review the decision of the delegate, but only the decision of the Refugee Review Tribunal. The delegate's decision has already been reviewed by the Tribunal.
As to the Applicant's claim that his case be remitted to a differently constituted Refugee Review Tribunal, whilst it is clear that with a finding of jurisdictional error the Court may remit the application to the Tribunal for determination according to law, it is doubtful, to say the least, that the Federal Magistrates Court has power to make an order that the Tribunal be differently constituted. This is a matter that was considered by the Full Court of the Federal Court, constituted by Emmett, Siopis and Rares JJ in SZEPZ v Minister for Immigration & Multicultural Affairs[1].
[1] [2006] FCAFC 107
The constitution of the Refugee Tribunal for a particular application is a matter to be decided by the Principal Member. That said, in order for those orders to be made or any of those orders to be made, the Court must be satisfied that jurisdictional error has been made out.
In his application that was filed on 31st December 2008, the Applicant has set out a lengthy statement which would appear to contain seven grounds of review. I have gone through the three page statement in the application, and the grounds of review that I have extrapolated from that can be dealt with under the following headings:
i)Apprehended bias.
ii)A claim of failure by the interpreter at the hearing.
iii)Pressure on the Applicant at the hearing.
iv)A complaint of interruptions by the Tribunal Member at the hearing.
v)A claimed breach of s.424A of the Migration Act.
vi)A general allegation of a failure to provide procedural fairness under s.425 of the Migration Act; and
vii)A challenge to the Tribunal's factual findings which would appear to constitute an attempt at merits review.
Background
The background, put briefly, is that the Applicant is a citizen of the People’s Republic of China. He arrived in Australia on 22nd April 2008 and applied for a Protection (Class XA) visa on 6th June 2008. He claimed that he had difficulties with the authorities in China after he was accused of inciting anti-government activities and his wife and other people with whom he was involved were detained by the police.
The Applicant claimed that he had come to Australia to provide support for a cousin, but after he left China for Australia, his wife was arrested and accused of not reporting his alleged anti-government activities.
The Applicant was invited to attend an interview with a delegate of the Minister on 29th July 2008. The Applicant attended that interview but the delegate described the Applicant as being “unable to provide clear explanations for some of his actions which form a key part of his reason to fear persecution on return to the PRC.”[2]
[2] See Court Book at page 53.
The delegate accepted the Applicant's claim that he and his cousin and others had visited various government offices in 2007 to lodge complaints against police who were extorting money from truck drivers. The delegate did not accept or did not find that there was any evidence that that action led or would lead in the future to any difficulties for the Applicant with the authorities in that country, noting the Country Information relating to departure procedures from the People’s Republic of China and the fact that he had left the country legally, using a passport issued in his own name.
The delegate was not satisfied that the Applicant had established that he had a well founded fear of persecution in the People’s Republic of China on account of his adverse political profile.[3] The delegate refused the application for a visa on 21st August 2008.
[3] See Court Book at page 55.
Application to the Refugee Review Tribunal
On 19th September 2008, the Applicant applied to the Refugee Review Tribunal for a review of that decision. He gave the address of his migration agent as the advisor whom he authorised to act for him in relation to the application. He did not provide any documentary evidence to the Tribunal with that application.
The Tribunal invited the Applicant to attend a hearing on 17th November 2008 and the Applicant attended that hearing. He gave evidence with the assistance of an interpreter in the Mandarin language. The Tribunal wrote to the Applicant the day after the hearing, on 18th November 2008, in a letter addressed to the Applicant, care of his migration agent. That letter was headed Invitation to Comment on or Respond to Information in Writing and was clearly intended to comply with the requirements of s.424A of the Migration Act.
The Applicant replied to that letter through the services of his migration agent on 2nd December 2008. He provided a two page statutory declaration in English, which he declared before his migration agent.[4]
[4] See Court Book at pages 87 and 88.
The Tribunal’s Decision
The Tribunal signed its decision on 3rd December 2008 and handed the decision down on that day, affirming the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record appears in the Court book at pages 92 through to 104.
In the decision record, the Tribunal sets out the Applicant's claims and evidence, including on pages 96 and 97 a summary of the Applicant's interview with the delegate on 29th July 2008. The Tribunal sets out a summary of the Applicant's evidence to hearing and refers to the s.424A letter written after the hearing and the Applicant's response.
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicant was a citizen of China and assessed his claims against that country. The Tribunal considered his claim to fear persecution on the basis of the Applicant and his cousin and later a further 18 truck drivers protested against police corruption in Fujian province and noted his claim that if he returned to China, the Applicant would be detained and mistreated by the authorities because of his involvement in anti-government activities during 2007 and 2008.
However, the Tribunal was not satisfied that the Applicant had provided a truthful account of his circumstances in China and was not satisfied as to the Applicant's general credibility. The Tribunal referred to inconsistencies between the Applicant's account to the Minister's delegate and to the Tribunal itself.
The Tribunal considered the Applicant's claim that he was nervous and confused, did not know anyone in Australia, had language difficulties and that there were interpreting problems, all of which he gave as an explanation for the inconsistent way in which he described his circumstances in China. The Tribunal noted the Applicant's claim that he had insufficient opportunity to address those inconsistencies because he had not been given a copy of a transcript of the interview with the Department.
The Tribunal did not accept that claim and expressed the view that the inconsistencies arose because the Applicant had fabricated his claims relating to difficulties with the authorities in China and he was, therefore, unable to recall and repeat those claims consistently each time he was asked.
As the Tribunal was satisfied that the Applicant had fabricated his claims, it did not accept his claims as credible and was not satisfied that he would, at the time of the hearing or in the reasonably foreseeable future, be a person of interest to the authorities in China because he is implicated in protest activities against the authorities or the government of China.
The Tribunal was not satisfied that the Applicant faced a real chance of serious harm by the authorities in China, for reasons of political opinion or any other Convention reason and was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention.
Application for Judicial Review
The Applicant commenced proceedings for judicial review of the Tribunal decision by filing an application and an affidavit in support on 31st December 2008.
Submissions
The Applicant informed the Court that he had not filed any other documents in his case. He addressed the Court orally at the hearing by reading from a prepared statement in which he largely reiterated the claims that he makes in his application. In particular, he claimed that he had not been provided with a compact disc recording or a transcript of the interview with the Minister's delegate and he claimed that the Tribunal had not produced any evidence to prove the point that it made about the inconsistencies in his claims. He reiterated his claims of bias on behalf of the Tribunal.
The Applicant makes his claims in his application which sets out a statement from which various grounds can be gleaned by reading through the text. The statement itself is reasonably detailed, setting out two grounds:
a)There was an error of law in the Tribunal's decision constituting a jurisdictional error.
b)There was procedural error in the Tribunal's decision constituting an absence of natural justice.
In his application, the Applicant set out particular in eight paragraphs of some length. He referred particularly to a finding of inconsistency the Tribunal made and set out what I consider to be the grounds at various places during his application.
Ms McDonald, who appeared for the Minister, took a similar view of the grounds that the application disclosed and made both a written submission and an oral submission to the Court containing the Minister's reply to those particular grounds.
Grounds of Review
Ground 1
First of all, the Applicant complains of an apprehension of bias. He sets out in his claim that whilst he may not have been able to present his claims consistently to the Department or to the Tribunal but that he was under a number of difficulties. He accepted that he was provided with the services of an interpreter but claimed that notwithstanding that assistance, the Tribunal did not give weight to the circumstances in which he found himself. His claims were that he had never had experience to attend an interview or a hearing with somebody who speaks a completely different language and who has a completely different cultural background.
The Applicant claims to have come from a rural area in China, with only a five year primary education. Thus, he claimed to have some problems with the interpreter, who was well educated. He claimed that he was under huge pressure at the Tribunal hearing and suffered mentally and psychologically and as a result was confused, anxious and extremely nervous. This had the inevitable result, he claims, that he neglected to mention some of the claims in his written material.
Ground 2
The second ground relates to a claim of difficulty with the interpreter at the hearing. He said that on many occasions he could not understand the meaning of the questions put to him at the interview or the Tribunal's hearing, even though the questions were interpreted by the interpreter.
The Applicant said that his limited education gave him some problems with the interpreter, who was obviously well educated, so on some occasions he could not understand what the interpreter had said to him, even if the interpreter spoke his own language. He claimed that certain answers had not been correctly interpreted. He said:
“I do not think that my answer has been interpreted by the interpreters properly and accurately either at the Departmental interview or the Tribunal's hearing. Particularly, two interpreters failed to correctly interpret the name of the authorities, which my cousin and I had approached, and failed to interpret my answer properly.”
Ground 3
The Applicant, as I said, complained that he had been under mental and psychological pressure which caused him to be nervous, anxious and confused and claims that the Tribunal did not take that into account.
Ground 4
The Applicant claims that he was interrupted during the hearing and was not able to answer correctly. The Applicant said:
“Furthermore, my reply to the relevant question was interrupted both at the Departmental interview and at the Tribunal's hearing.”
Ground 5
The Applicant further claims that he was not given a fair chance to comment on the particulars of information that his evidence at the Departmental interview is inconsistent with the evidence at the Tribunal hearing, because he had not been provided with an accurate record in relation to the Departmental interview, such as a copy of a recording compact disc or a transcript.
The Applicant claimed that either the Department or the Tribunal should have provided him with an accurate record in relation to that interview. He claimed that the Tribunal should, at least, give him a fair chance to examine or clarify whether or not the interpreter at the Departmental interview had made a mistake or had made interpretation improperly and inaccurately.
Ground 6
The Applicant claims a general breach of fairness in that the Tribunal failed to provide him with an important chance and failed to give him a fair chance according to law. Thus, he claimed there must be an error of law in the Tribunal's decision constituting jurisdictional error. There must be a procedural error constituting an absence of natural justice.
Ground 7
The Applicant also, in his application, reiterated parts of his factual claims which he believes the Tribunal had not adjudicated upon correctly.
Considerations
Apprehended bias
When dealing with these claims, it is noteworthy that there is a claim of a reasonable apprehension of bias on the part of the Tribunal Member. In her detailed written outline of submissions, Ms McDonald for the Minister submitted that the allegation of bias was a ground that lacked merit, commenting that it was a serious allegation and must be strictly alleged and proved and referring the Court to SBBS v Minister for Immigration and Multicultural and Indigenous Affairs[5].
[5] [2002] FCAFC 361 at [43]
In particular, I was referred to the test for apprehended bias in relation to curial proceedings, being whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided and I am referred to Re Refugee Review Tribunal; Ex-parte H[6]. The submission is that there was nothing on the face of the Tribunal decision that demonstrated bias or apprehended bias. In her oral submissions, McDonald put to the Court and, in my view correctly, that an adverse finding of fact is not of itself a demonstrated bias.
[6] (2001) 179 ALR 425 at [27]-[34]
I am not of the view that the claim of bias has been made out, either apprehended bias or actual bias. There is no evidence of bias. It is a serious allegation. It must be strictly alleged and strictly proved and there is no material before the Court that supports a claim of bias. It is well established that it is rare for bias to be established merely from the Tribunal's reasons for decision.
In my view the claim of bias must fail.
A claim of failure by the interpreter at the hearing
The Applicant referred on several occasions to difficulty with interpreters, both at the Departmental interview and at the Tribunal hearing. I had reminded the Applicant that the Court was not reviewing the delegate's decision, but the decision of the Tribunal. The Applicant's claim related to first, a claim that due to his own limited education as opposed to the educational background of the interpreters, that he had difficulty understanding the questions as they were interpreted to him. That part of the claim cannot be seen as a failure by the interpreter.
However, the Applicant also raised the possibility that his answers had not been interpreted properly and accurately at the hearing and that two interpreters had failed to correctly interpret the names of certain authorities. He goes on to claim:
“I do not think that my claims have been interpreted by the interpreter, properly and accurately, at the Departmental interview. Similarly, I did not think that the interpreter at the Tribunal's hearing has interpreted my reply properly and accurately.”
It is certainly the case that a failure by an interpreter can have such a profound effect on the Tribunal hearing that an applicant is deprived of his or her right under s.425 of the Act to a proper hearing because the applicant is not able to either, understand the questions that are put by the Tribunal, or, provide answer to those questions in a satisfactory form. Not every inaccuracy in interpreting would lead to such a finding, even if there were evidence of it.
In this case, as Ms McDonald has put to the Court, the Applicant has not provided any evidence of any failure by an interpreter. There is no affidavit. There is no transcript of the Tribunal hearing. What the Court has is the Tribunal decision record and that decision record does not lead the Court to make a finding that there was a failure by the interpreter at the Tribunal hearing which should lead to a grant of relief by the Court. True it is that the Applicant claimed in his statutory declaration in reply to the Tribunal's s.424A, that there were interpreting problems. The Tribunal addressed that claim in its findings and reasons. The Tribunal stated:
“He stated that he was nervous, confused, did not know anyone in Australia, he had language difficulties, and there were interpreting problems, all of which contributed to the inconsistent way in which he described his circumstances in China.”[7]
[7] See Court Book at page 105 at [52].
However, the Tribunal assessed that claim, but found that the Applicant had sufficient assistance and opportunity to provide his claims fully and accurately each time he was required to do so by the Department and the Tribunal and did not accept that there was any failure by an interpreter.
In my view the ground relating to failure by an interpreter at the hearing has not been made out.
Pressure on the Applicant at the hearing
The Applicant claims that he was under pressure at the hearing which put him under mental and psychological strain and meant that he was confused and anxious and was not able to do himself justice. He claimed to have been nervous at the hearing. This was an issue that he raised in his statutory declaration in reply to the Tribunal's s.424A letter:
“It is for the reason mentioned above that I have claimed to the Tribunal at the hearing that I was confused, anxious and extremely nervous. As a result, I inevitably neglected to mention some claims in my written material.”[8]
[8] See Court Book at page 87.
The Tribunal considered that but did not accept it. In my view, that ground must fail.
A complaint of interruptions by the Tribunal Member at the hearing
The Applicant claims, in his application, that he was interrupted when answering questions and was not able to answer properly. He has provided no evidence of this.
As Ms McDonald submitted on behalf o the Minister, he has not provided a transcript and all the Court has is the Tribunal decision record which does not provide any support for the Applicant's claim.
In my view, that claim has not been made out.
A claimed breach of s.424A of the Migration Act
As to the Applicant's claim that he was not provided with an opportunity to explain inconsistencies between his claims to the Department and his claims to the Tribunal, I note that the Tribunal did write to the Applicant, under the provisions of s.424A of the Migration Act. That letter is set out on pages 84 and 85 of the Court book and deals with all of the matters which appeared to concern the Tribunal.
Ms McDonald has submitted, inconsistencies are not of themselves information and referred the Court to the decision of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship[9]. The Applicant was given an opportunity to reply to the Tribunal's concern set out in that letter and took that opportunity, with the aid of the statutory declaration prepared by his migration agent.
[9] [2007] HCA 26 at [18]
In my view, whether or not it was necessary for the Tribunal to comply with s.424A of the Migration Act, the fact is that it did. No jurisdictional error has been made out.
A general allegation of a failure to provide procedural fairness under s.425 of the Migration Act
The Applicant has made generalised complaints about failure by the Tribunal to provide him with natural justice or procedural fairness. As far as natural justice is concerned, it is well established by s.422B of the Migration Act that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Division 4 contains such sections as s.424, 424AA, 424A, 425, 425A and 426A amongst others. There can be a failure by the Tribunal to provide a fair hearing which could lead to a jurisdictional error in that a breach of s.425 had been made out. There can be many reasons for that and failure by an interpreter could, in certain circumstances, lead to such a finding. One area of concern is where an issue that is not dealt with by the delegate is relied on by the Tribunal without the Applicant's attention being drawn to that issue and without the Applicant being given the opportunity to reply to that issue or meet the Tribunal's concerns. That is not the case here.
Whilst the s.424A letter that the Tribunal has sent may represent a bit of a "belt and braces" approach, it did, in my view, effectively set out all the issues about which the Tribunal is concerned and formed the basis of its credibility finding against the Applicant and, the Applicant was given the opportunity to meet that. The Tribunal discussed certain issues with the Applicant at the hearing and gave the Applicant the opportunity to reply in writing to a letter after the hearing.
I am not satisfied that any breach of s.425 of the Migration Act has been made out.
A challenge to the Tribunal's factual findings which would appear to constitute an attempt at merits review
There are parts of the application which contain a reiteration of the Applicant's factual claims. The implication is that the Tribunal did not address those facts correctly. It is well established that merits review is not available on an application for judicial review. Provided that there is evidence upon which it is possible for the Tribunal to make a factual finding, then a Court conducting judicial review will not interfere. In my view the reiteration of the factual claims amounts to no more than an impermissible attempt at merits review.
The Applicant claimed, in his oral submission, that the Tribunal had no evidence to prove its point about inconsistencies. The fact is that it is not the task of the Tribunal to produce evidence contrary to an Applicant's claim. It is well established under s.65 of the Act that the Tribunal must be satisfied that the Applicant meets the requirements for a visa. If the Tribunal is not satisfied then the Applicant is not to be granted the visa. In other words, it is for the Applicant to provide the evidence to satisfy the Tribunal that requirements for a visa have been met.
Conclusions
Essentially, the Tribunal's decision was based on an adverse finding about the Applicant's credibility. It is well established that credibility findings are matters for the Tribunal and I am satisfied that those findings were open to the Tribunal on the evidence before it, thus, such a finding would not be disturbed by judicial review. (See in particular, Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham[10]).
[10] (2000) 168 ALR 407; [2000] HCA 1
The grounds of review that appear in the Applicant's application have not been made out. I am mindful of the fact that the Applicant is not legally represented in these proceedings and my own independent assessment of the Tribunal decision and supporting material does not disclose any arguable case for any other jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision. Sub-section 474(1) of the Migration Act makes it clear that a privative clause decision is not subject to orders in the nature of certiorari or mandamus and it must follow, therefore, that the application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $3,400.00. The Applicant has been unsuccessful in his claim and it is appropriate to make an order for costs in favour of the Minister who has been successful. I am satisfied that the amount of $3,400.00 is an appropriate figure. It is certainly justified by the material that appears in the Court file.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 25 March 2009
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