SZNKI v Minister for Immigration - [2009] FMCA 860

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 860

MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified by name pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNKI”.

Migration Act 1958 (Cth), ss.91R(3), 424A, 425, 427

Applicant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAIF v Minister for Immigration [2003] FMCA 458
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 115 FCR 1
Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168
SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171

Applicant:

SZNKI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 796 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

28 July 2009

Delivered at:

Sydney

Delivered on:

4 September 2009

REPRESENTATION

Solicitors for the Applicant:

The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents:

Mr J. Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 6 April 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 796 of 2009

SZNKI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant claims to be a citizen of the People’s Republic of China, was born in Fujian Province and speaks Mandarin and Fuqing. He states his religion is Christian and that he was a section chief in a company. He arrived in Australia on 18 July 2008 on a Visitor visa and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 29 August 2008. The application was refused on 10 November 2008 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision of

10 December 2008. The Tribunal affirmed the delegate’s decision on 10 March 2009 in the decision number 0808528, prepared by Tribunal member Catherine Carney. It is this decision which is the subject of judicial review.
The applicant claims to have a well-founded fear of persecution because of his Christian beliefs. He states he was born into a Christian family and that his parents are religious practitioners. He states that he was distributing promoting brochures of Australian churches and in, November 2007, the police raided his church and seized those brochures. He claims he was taken away and charged with “illegally spreading religious publications from overseas” (Court Book (“CB”) 108). He states he was tortured, derived of sleep and released from the detention centre 15 days later due to health reasons. The applicant claims to fear persecution from the Public Security Bureau if he returns to China because he was wanted for publishing articles on the internet promoting religious freedom.
A Court Book prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and has been read into evidence. A missing page from the Court Book (p.106) was tendered in Court at the commencement of the hearing and marked Exhibit “A1”. A letter from the Tribunal dated 14 January 2009 and headed “Invitation to Comment on or Respond to Information in Writing” which was also omitted from the Court Book was tendered and marked Exhibit “A2”.
An affidavit of Brin Ellen May Anniwell affirmed on 27 July 2009 was tendered and marked Exhibit “B”. The original application contained two grounds of review. At the first Court date, the applicant indicated that he wished to participate in the Court-sponsored panel advice scheme and the Court Registry allocated a panel adviser to assist the applicant. The Court file contains a letter from the panel adviser confirming that advice was given to the applicant. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review to be relied upon. However, the applicant failed to file an amended application or written submissions.

The Tribunal decision

I rely on the written submissions prepared by Mr Potts as a convenient of the Tribunal decision. I have made no further direct attribution as this would make the summary unwieldy. The summary information is provided to assist in understanding the nature of the application and does not establish any evidence. The Tribunal did not find the applicant to be a witness of credit. It found the applicant’s evidence to be inconsistent and confused and that the applicant did not answer the questions put to him by the Tribunal, instead repeating earlier evidence or giving irrelevant information (CB 119 at [81]).
The Tribunal simply rejected the applicant’s claims concerning and connected to his claimed practice of Christianity in China. Based on its findings that the applicant was not a committed Christian (CB 121 at [90], the Tribunal placed little weight on the documents provided by the applicant in support of his claimed attendance at the Bread of Life church in Sydney (CB 123 at [103]). Having made a positive finding that the applicant only attended church in Australia and uploaded religious material on the internet in order to strengthen his refugee claim, the Tribunal disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Act”).
In light of these findings, the Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in China and found that the claimed fear of Convention-related persecution in China was not well-founded.

Applicant’s submissions

When invited to make oral submissions in support of his grounds of review, the applicant indicated via the interpreter that he had a written statement wished to convey to the Court and asked the interpreter to read it on his behalf. As the statement was quite lengthy, I permitted this course of action.
The applicant indicated that he received his rejection letter from the Tribunal on 13 March 2009 which was translated to him by his migration agent. He stated that he felt the Tribunal had made an unfair decision in his case and he was suspicious of incorrect interpretation during the Tribunal hearing. The discrepancies were identified as:
a)The Tribunal believed the applicant to be a genuine Chinese citizen;
b)The Tribunal thought that the primary written material provided by the applicant contradicted some comments made at the hearing and the applicant wished to explain this.
The applicant indicated that he received the Tribunal letter on

13 January 2009 which raised a number of questions and sought an explanation prior to 6 February 2009. That response was supplied on 29 January 2009 which he asserts was completely genuine. However the applicant believes a number of reasons led the Tribunal to its unfair decision:
i)The Tribunal member dealt with the application based on her personal subjective ideas, without into taking account his actual circumstances and perfunctorily rejected the application. As the member lives in Australia, she does not understand the huge differences between Australian and Chinese social environments, making it hard for her to understand the applicant’s explanations. The rejection letter indicates that the member simply did not take into account the specific environment in China which was unfair to the applicant.
ii)There were many discrepancies in the interpretation of questions by the interpreter at the Tribunal hearing. This resulted in the applicant not fully understanding the original questions thereby creating misunderstanding.
iii)In relation to questions about the applicant’s knowledge of Christianity a review of the Tribunal hearing indicates that the interpreter did not raise such questions during the hearing. Similarly with respect to the gospel books, there were considerable differences between the answers given to the delegate and the Tribunal member but the applicant claims that he has no knowledge of these alleged differences. The applicant denies that his answer was incorrect and that the problems arose due to the interpreter.
iv)The applicant’s answers in relation to holding religious ceremonies were misunderstood because of the interpretation and the member therefore had a completely different perception of what was being discussed.
v)The member was concerned that a person such as the applicant, who was raised in a Christian family, was not baptised until he was an adult. However, the applicant explained that due to the political situation in China he and a number of his siblings were not baptised as children.
vi)The Tribunal’s doubts in relation to the applicant only participating in the family church since 2006. Yet the applicant explained that when he went to boarding school as a child and after graduation was busy working and unable to participate until he was older.
vii)The Tribunal doubted the applicant’s explanation of the bond for his bail. The applicant claims this was misunderstood because of faulty interpretation as his parents raised the money, passed it onto an acquaintance who then arranged the bail and release.
viii)The Tribunal doubted his address provided in his visa application. The applicant explained that he lived a considerable distance from his work and sometimes had to stay at his parents’ house to avoid travel. This is the explanation in respect of letters forwarded by the Tribunal which were not received by the applicant until much later.
ix)In response to the s.424A letter, the applicant explained that his delay in leaving China was because he was released on bail and subject to a bond and guarantee that he would not spread anti-government gospel material. He also delayed his departure because his mother was ill and his wife was too busy to look after her.
x)The question of the denomination of his house church which is not the same as the group known as “The Shouters”.
xi)In relation to not participating in the official church, the applicant indicated that a famous leader of the house church was arrested because of his publications and the Chinese government denied genuine religious freedom and basic human rights.

First respondent’s submissions

Mr Potts, appearing for the first respondent, submits that the Orders made on 21 April 2009 required all evidence to be presented in affidavit form, including any evidence of the Tribunal hearing.
Mr Potts submits that the applicant received advice through the Court-sponsored legal advice scheme. However, there is no evidence before the Court on what was said at the Tribunal hearing other than what is reproduced in the Tribunal decision record. In the absence of an affidavit by an interpreter stating what was said and translated at the hearing, there is no evidence that the standard of interpreting was deficient in any material way.
Paragraph 46 of the Tribunal decision states under the heading “A summary of the oral evidence is as follows”:
The Tribunal went through the introductions and explained the process to the applicant. The Tribunal asked if the applicant had any concerns with the interpretation. The applicant indicated that he had no concerns with the interpreting. (CB 110)
It is submitted that there is no reference in the balance of the hearing of the applicant complaining that he could not understand what was being said.
The applicant’s next complaint was that the Tribunal thought that prior written material was contradictory. Exhibit “A2” is a Tribunal letter dated 14 January 2009 being “An invitation to comment on or respond to information in writing” issued pursuant to s.424A of the Act. The letter states:
In your written statement attached to your application for a Protection visa, you state:
·    You are Christian and belong to a home church
·    You are released from detention due to health reasons
·    You spent most of your time in China spreading Christian material on the internet.
Why this information is relevant to the review.
The above inconsistencies are relevant as they may lead the Tribunal to question the credibility of the evidence given by you which may lead the Tribunal to question the authenticity of your claims and may lead the Tribunal to find that your claims are not genuine.
Mr Potts submits that the applicant plainly understood this material because he responded to it (CB 85). The applicant states in the first paragraph of his response:
The so called “shouter” is a nickname imposed by CCP on our local church and this is a wrong understanding of Christianity by CCP. I am a member of the family church and a piety Christian. As the name of “shouter” we actually do not accept it but we cannot resist Chinese government.
It is submitted that the applicant was put on notice of these concerns of the Tribunal. He was given an opportunity to deal with them which he did. Mr Potts submits that the Tribunal took the response into account but was ultimately unable to accept his explanations. This does not demonstrate an error in the process or procedures of the Tribunal.
The Court Book states:
The Tribunal did not find the applicant to be a witness of truth. At the oral hearing the applicant’s evidence was inconsistent and confused. The applicant did not answer questions put to him and instead repeated earlier evidence or gave irrelevant information. (CB 119)
The third complaint raised was that the Tribunal failed to take into account the cultural differences between Australia and China which led the Tribunal into error. Mr Potts submits that there is no basis to conclude that the matters relied upon by the Tribunal in doubting the applicant’s credibility were the product of cultural insensitivity, or a failure to take into account cultural differences. He submits the applicant did not suggest during the hearing that he was having difficulty with the Tribunal’s questions because of the member’s cultural insensitivity or ignorance of cultural differences.
The fourth complaint is that the Tribunal failed to take into account the applicant’s particular circumstances. The decision record contains a comprehensive statement of all the material which preceded the Tribunal decision which includes:
a)Paragraphs [20]-[28] “application for Protection visa”
b)Paragraphs [29]-[37] – additional documentation
c)Paragraphs [38]-[45] – review application
d)Paragraphs [46]-[77] – evidence at oral hearing
e)Paragraphs [79]-[106] – detailed analysis and explanation of how the Tribunal came to its decision.
The material set out above indicates how the Tribunal dealt with the particulars of this application, including the applicant’s circumstances.
The fifth issue concerns differences in the applicant’s address. The s.424A letter (Exhibit “A2”) stated under the heading “In your Application to visit Australia as a sponsored family visitor filed in April 2008”:
· Your address in China you provided in response to Q 13 is a different address in China to the one you provided on you application for Protection Visa.
The applicant’s response letter states:
In my application for a Protection visa, I provided my address in which I lived from September 2000 to July 2008. I often lived there. But the address I provided in my application for a travelling visa is my parent’s address. I did not live there very often. When I was at work, no-one was at home to receive mail. So I forwarded my parent’s address in order to receive mail more conveniently. (CB 90)
The Tribunal decision states:
The applicant provided a different address for himself in his application for a Protection visa as in his business visa. In his response to a s.424A letter he stated that he provided his parent’s address in his visitor’s visa as he was not home and wanted mail sent to his parent’s address. At the hearing he gave oral evidence that he lived in one house with his parents and wife. When the Tribunal asked him to comment on these further inconsistencies he gave a confused answer which was inconsistent with the earlier answer. He stated his parents lived close by and they moved from address to address. (CB 120)
It is submitted that this issue was raised with the applicant, that he responded and the Tribunal dealt with it.
The sixth issue raised by the applicant concerns his explanation for delay in departing China. The Tribunal reasons state:
…At the hearing he stated he delayed his departure as the authorities did not come after him when he was released, and his mother had shoulder pain and he had to look after her, he also stated both his parents were unwell and his grandmother may not have long to live. (CB 120-121)
This issue was dealt with by the Tribunal.
The seventh issue concerns the use of the term “Shouter”. This was addressed in the applicant’s response to the s.424A letter and which I have addressed at [14] above. The Tribunal dealt with this issue in its decision:
The applicant gave oral evidence at the hearing and claimed he was a Christian, when the Tribunal asked what denomination of Christianity he stated that he belonged to no denomination. The applicant then gave evidence that he belonged to a family church…(CB 121)
At the interview with the Department the applicant stated he belonged to the Shouters Group but later gave confused and contradictory evidence. At the hearing he gave evidence that he was arrested as a Shouter and that there are many members of this group. In response to the s.424A letter, the applicant denied he was a Shouter and said it was just a term given by the authorities. Mr Potts submits that this issue was raised, answered and dealt with by the Tribunal.
The eighth issue concerns a reference to the applicant not attending an officially-sanctioned government church. The Tribunal addressed this issue in the following way:
88 …The Tribunal would expect that if one was being persecuted for belonging to a family church where one’s whole family had attended since the applicant was a small boy then one would be able to elaborate in a full manner their reasons for not being able to attend a registered church. (CB 121)
Contrary to the applicant’s contentions, the issue was raised, addressed and dealt with by the Tribunal. Mr Potts submits that paras.89 and 90 of the Tribunal decision deal with its concern that the applicant was unable to give detailed information about Christianity and, in particular, unable to identify his favourite gospel story:
90 The Tribunal does not accept that the applicant was a Christian in China. The Tribunal finds that the applicant did not practice Christianity and was not a Christian in China. The applicant was unable to give full information about how he uploaded information on the internet; in response to the Tribunal’s questions he was not able to give any detailed information of the actual stories he was publishing. After consideration of the applicant’s response the oral evidence given by him does not satisfy the Tribunal or is implausible. Given the Tribunal’s findings above in relation to the applicant’s credibility the Tribunal is not satisfied that the applicant had uploaded the information on religious freedom or religious stories on the internet in China.

Mr Potts submits that the above explanations deal with the matters the applicant put orally before the Court and relies on his written submissions in respect of the two pleaded grounds contained in the original application.

Ground one

I would be exposed to a real risk of persecution in the future as I am a Christian and RRT failed to consider my risk in China.

It is submitted that a fair reading of the Tribunal’s reasons disclose that the Tribunal considered whether there was a real chance of the applicant being persecuted if he returned to China. On the basis that it rejected the applicant’s claim that he was a Christian in China, the Tribunal found that there was no real risk of persecution.

Ground two

I was not get fair decision by the RRT. They did not weigh my evidence both here and in China. RRT did not give me a letter to explain doubts.

Mr Potts submits that the applicant does not particularise why he says the Tribunal decision was unfair. If he is simply aggrieved by the outcome, this amounts to a request for an impermissible review of the Tribunal decision. Insofar as the applicant contends that the Tribunal did not consider his evidence, the Tribunal’s reasons for decision disclose that it considered all of the applicant’s evidence in support of his claims. It rejected these on the basis that the applicant was not a credible witness.
Mr Potts submits that the third contention in this ground of review is factually incorrect because on 14 January 2009 the Tribunal sent the applicant a letter pursuant to s.424A of the Act giving him information which it considered would be the reason or part of the reason for affirming the delegate’s decision. For the balance of the decision, the Tribunal did not rely on any “information” that would require disclosure to the applicant pursuant to s.424A(1) of the Act.

Consideration

The applicant’s oral submissions raised eight issues in respect of claims that the Tribunal either dealt with his application in the absence of consideration of cultural differences between Australia and China or overlooked or misunderstood him due to inadequate interpretation.
The Court acknowledges that the applicant is a self-represented litigant but that he has had the benefit of a Court-sponsored panel adviser to explain the preparation of his matter before this Court. The main issues now raised by the applicant are in the absence of any verified Tribunal transcript or affidavit by a qualified interpreter indicating that errors did occur during the hearing. Instead, the Court only has the applicant’s assertions that errors were made. Each one of these allegations has been addressed satisfactorily by Counsel for the first respondent relying on the evidence in the Court Book, particularly the Tribunal decision record.
Under s.427 of the Act, the Tribunal is required to provide an interpreter when an applicant is unable to give evidence without one: VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [8]. The Tribunal has a statutory obligation under s.425 to ensure the invitation to the hearing is “real and meaningful”: Applicant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [16]. This includes providing an interpreter of sufficient skill such that the applicant is not denied his or her rights to a fair hearing: VWFY (supra) at [27]. In circumstances where an applicant raises the issue of standard of interpretation, he/she must show one of the following:
a)The standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence; or
b)Errors made by the interpreter at the hearing were material to the conclusion of the Tribunal which is adverse to the applicant: Applicant P119 of 2002 (supra) at [17]. These principles were also considered in Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 115 FCR 1; Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168.
When this issue is raised in the Court should consider:
a)Whether there is a correct translation available, against which the interpreter’s performance can be compared: VWFY at [10]. In making comparisons it is sufficiently accurate to permit the idea or concept to be communicated: NAIF v Minister for Immigration [2003] FMCA 458 at [63]; WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [26];
b)The manner of the applicant’s responses, including “the responsiveness of interpreted answers to questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evidenced confusion in exchanges between the Tribunal and the interpreter”: Perera at [41] per Kenny J, applied in VWFY at [11] and P119/2002 at [20].
I am not satisfied that there has been any error in interpretation during the Tribunal hearing and all the examples of these alleged problems should be dismissed.
Ground one in effect challenges the Tribunal’s adverse credibility finding and the consequent rejection of the applicant’s claims. This is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67] per McHugh J. I am satisfied that the Tribunal’s findings in this respect are open to it on rational grounds and on the material before it. The findings disclose no error in the Tribunal’s treatment of the applicant’s credibility. The Tribunal details at length the vagueness, inconsistencies and unreliability in the applicant’s evidence in a number of respects. Its decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates that the concerns it had with aspects of the applicant’s evidence were raised with him during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts; in particular its finding that he was not credible. In the circumstances this ground should be dismissed.
In relation to ground two, the applicant is inviting me to undertake an impermissible merits review which is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [3] per Brennan CJ, Toohey, McHugh and Gummow JJ. The applicant is seeking an assessment of the appropriateness of the decision which requires a review of the merits. This is distinct from judicial review which focuses on the lawfulness of an earlier decision. Judicial review asks whether the decision-maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances.
The applicant contends that the Tribunal did not consider his evidence and set out a number of examples in support of this. As indicated above, I am satisfied that each of these examples raised by the applicant have been satisfactorily addressed by the Tribunal member and fully considered in the decision record. In the absence of any evidence to the contrary I am satisfied that this contention cannot be sustained.
The applicant claims the Tribunal did not provide him with a letter setting out the basis of matters in contention and adverse to him. The Tribunal did issue a letter under s.424A of the Act which set out the issues it was concerned about and invited the applicant to respond. It would appear that the applicant understood the request as he did respond and address the questions raised. In the circumstances I am not satisfied that the third contention can be sustained and the whole ground should be dismissed.
At the time of the hearing, Mr Potts made additional submissions in respect of the recently decided decision in SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693. Since the hearing, decisions of both the High Court and the Full Federal Court have made it clear that the issues with the Acknowledgment of Application letter, which is the subject of SZNAV, do not constitute jurisdictional error and do not need to be addressed by this Court.
Consequently, the application filed on 6 April 2009 is dismissed with an order that the applicant pay the first respondent’s costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 4 September 2009