SZNMW v Minister for Immigration

[2009] FMCA 734

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMW & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 734

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicants – applicants are citizens of the People's Republic of China claiming fear of persecution for reasons of religion – allegation of bias – no evidence of bias – no reviewable error.

Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425

First Applicant: SZNMW

Second Applicant: SZNMX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG954 of 2009

Judgment of: Scarlett FM

Hearing date: 15 July 2009

Date of Last Submission: 15 July 2009

Delivered at: Sydney

Delivered on: 15 July 2009

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Wong

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4000.00 and I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG954 of 2009

SZNMW

First Applicant

SZNMX

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMEN

(Revised from Transcript)

1. There are two applicants in this matter; they are a mother and son.  They are both adults.  The applicants ask the Court to review a decision of the Refugee Review Tribunal.  The Tribunal made its decision on 25 March 2009 affirming the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicants Protection (Class XA) visas. 

2. The applicants ask the Court to make orders:

   i)setting aside the Tribunal decision; and

   ii)making an order requiring the Refugee Review Tribunal to review their case again. 

   Their application contains two grounds which claim the Tribunal fell into jurisdictional error. 

3. The first respondent, the Minister for Immigration & Citizenship, filed a response on 8 May 2009. 

4. The applicants rely on their application and affidavit in support that were both filed on 23 April 2009.  They have not filed any other documents.

5. The Minister for Immigration & Citizenship filed a written outline of submissions on 7 July 2009.  A copy of that document was served on the applicants, and I am assured by counsel for the Minister that at the hearing today a copy of the Minister's outline of submissions was translated to the first applicant. 

6. The first applicant has attended Court today.  The second applicant has not.  The first applicant tells the Court that the second applicant is sick and she has authority to speak on his behalf.

Background

1. The background to this matter is that the applicants arrived in Australia from China on 20 November 2007.  On 29 July 2008 they applied for Protection (Class XA) visas.

2. The first applicant, who is the mother, claims a well-founded fear of persecution due to her religious belief.  She claims to be a Christian who was born into a Christian family.  Her husband's family are Christians.  She claimed to have held gatherings at her home where villagers would discuss Christianity and pray.  The first applicant claims that on 4 April 1996 when she was holding a gathering at her home, the police came and arrested her.  She was beaten and detained for 15 days.  She was released after her husband paid an amount of money.

3. In June 2007, when six people were gathered at the applicants' home, police came and took them to the local police station.  The first applicant was detained and was released after three days. Again her husband had paid an amount of money to police.  The first applicant and her son left China for Australia as there was no religious freedom in China. 

4. The applicant's son relies on being a member of his mother's family unit.  He does not have his own individual claims to be a refugee.  He is a Part D applicant.  His mother told the Court that he was 20 years of age, although I note from his application that his date of birth was given as 8 May 1990.  That would appear to make him 19 years of age, however, nothing turns on that.

5. A delegate of the Minister for Immigration & Citizenship refused the applications for protection visas on 16 October 2008.  The delegate, after considering independent country information about churches in China, could not find that the first applicant would be considered by the authorities as someone who could oppose the government in an effective and/or organised way.  The applicant did not appear to have a high profile or a profile which would make her a target of the authorities.  The delegate found that the chance of the applicants being persecuted was remote and there was not a real chance of persecution[1].

   [1] See Court Book at page 73

Application to the Refugee Review Tribunal

1. After the applications for protection visas were refused the applicants applied to the Refugee Review Tribunal on 7 November 2008 for review of the delegate’s decision.  The Tribunal invited the applicants to appear before a hearing which was originally scheduled for

   
   9 February 2009

   , however, that hearing was postponed.

2. On 4 February 2009 the Tribunal wrote to the applicants' migration agent inviting the applicants to attend a rescheduled hearing on 16 March 2009.  I note from the Court Book that the Tribunal had difficulty in obtaining an interpreter in the Fuqing dialect.  A Tribunal memorandum showed that an interpreter was not available in Sydney until 13 April 2009. However, a Fuqing interpreter from Melbourne was booked who would go into the Migration Review Tribunal Registry in Melbourne and be available by video link.  The Tribunal Member agreed that that procedure should be adopted[2].   

   [2] See Court Book at page 89

3. The two applicants attended the Tribunal hearing on 16 March 2009.  They were both offered the opportunity of giving evidence but the second applicant declined to do so.  The first applicant gave evidence with the assistance of the Fuqing interpreter by video link from Melbourne. 

4. The Tribunal recorded what arrangements were made as far as interpreting was concerned:

   Further, the interpreter who attended the Tribunal hearing did so by video link (the applicants and the Tribunal member were in the hearing room in Sydney). After having listened to the interpretation at hearing, the Tribunal had no reason to doubt the interpreter was professional and competent.  However, the Tribunal wishes to note the interpreter was not able to see the faces of the applicant (or her son) at the hearing.  The Tribunal had focused on ensuring the applicant was sitting facing the recording equipment and telephone in an effort to ensure her words were clearly heard by the interpreter.  The Tribunal understands that seeing persons give evidence can enhance the understanding of what is being said.  However, in this case the Tribunal was more intent on ensuring the video linked interpreter could clearly hear what was said.  After listening to all the evidence the Tribunal is satisfied this has been satisfactorily achieved[3].

   [3] See Court Book at page 122 at par. 28

5. The Tribunal noted that the applicant mother claimed that when she was arrested in June 2007 she had been struck in one ear.  The Tribunal said:

   The applicant had also been struck in one ear when she had been detained and was now partially deaf in that ear (though from the commencement of the hearing the Tribunal had positioned the applicant so she could hear the interpreter with her good ear)[4].

   [4] See Court Book at page 124 at par. 40

The Refugee Review Tribunal Decision

1. The Tribunal made its decision on 25 March 2009. It affirmed the decision not to grant Protection (Class XA) visas to the applicants. In its decision the Tribunal made serious findings about the credibility of the first applicant.  The Tribunal said:

   For the reasons set out herein the Tribunal does not accept the present applicant is a witness of truth.  The Tribunal is satisfied the applicant was prepared to embellish, if not entirely fabricate, her material claims where she believed it would enhance her prospects of being determined to invoke refugee protection obligations in Australia[5]. 

   [5] See Court Book at page 126 at par. 52

2. The Tribunal set out its reasons as to why it found the applicant was not a witness of truth and why it was satisfied that there were reasonable grounds to reject all of her material claims.  The Tribunal found:

   (a)It did not believe that it was plausible that the applicant could continue her religious practice in China without difficulties for a period of 11 years if she had come to the adverse attention of the authorities in 1996;

   (b)the Tribunal was satisfied that the applicant had little, if any, knowledge about her claimed religion or religious practice in China;

   (c)the Tribunal did not accept that the applicant's husband, who allegedly only attended the applicant's house/church in China on an irregular basis, would have led the church after the applicant had left China for Australia; and

   (d)the Tribunal did not believe it was plausible that the applicant would have delayed lodging her application for a protection visa for eight months if she had fled China after being released from detention and had come to Australia to seek religious freedom. 

3. Because of the applicant's lack of knowledge about her religious belief the Tribunal was satisfied that she had only attended church in Australia to enhance her claim to be owed refugee protection. The Tribunal disregarded the applicant's conduct in Australia under the provisions of s.91R(3) of the Migration Act.

4. The Tribunal stated that it was positively satisfied that the first applicant was not a witness of truth and it rejected all of her material claims as false. It was not satisfied that the applicant had a well‑founded fear of persecution for a convention reason and was therefore not satisfied that the two applicants were persons to whom Australia has protection obligations under the Refugees Convention.  Accordingly, they did not satisfy the criterion set out in s.36(2)(a) for a protection visa. 

Application for Judicial Review

1. The applicants commenced proceedings in this Court on 23 April 2009.  The application contains two grounds:

   (1) I am a Christian I did not tell lie.  RRT did not believe me.  They did not consider my evidence fairly.  They had bias on me.  At the hearing the member did not give me a chance to explain more.  They also did not give me a chance by writing to explain the doubts on the basis they refused my application. 

   (2) Procedural fairness has been denied.  RRT did not use favourable cases to my application.  RRT failed to consider the risk for me to go back.  I also find there is a problem with interpreter.  Some questions were not interpreted properly.  I did not understand some questions asked by the member at RRT hearing. 

2. The applicants did not file a written outline of submissions.  The first applicant attended Court and made an oral submission.  She told the Court that the Tribunal member was angry at her and biased against her.  She did not know why.  She said that the interpreter on the video link was behind her and she could not see the interpreter.  She said she could not hear clearly.  She told that to the interpreter.  The applicant complained that the interpreter was not interpreting the questions properly.  She complained that when a Tribunal staff member had arranged for her to sit in a particular place, the Tribunal member did not like that and wanted her to move.

3. She told the Court that she had a hearing problem in one ear. She confirmed to the Court that she could hear the interpreter clearly at this hearing. She said that she told the Tribunal that she had a hearing problem and asked the member to speak slowly. The applicant complained that it was not fair and she was not given a chance to explain. When she asked if she could explain something again, the Tribunal member said:

   No, I have listened to that already.

   The applicant complained that she had been telling the truth to the Tribunal but the Tribunal did not believe her.  She claimed that she was hampered at the hearing because she had a headache.  However, in answer to a question from the Bench she said that she did not tell that to the Tribunal member. 

4. The applicant has set out two grounds of review. Counsel for the Minister, Ms Wong, has submitted that the first ground really contains three grounds of review. That appears to be correct. Those sub‑grounds are:

   (a)The Tribunal did not consider the applicants fairly and it was biased;

   (b)The Tribunal did not give the applicant an opportunity to explain her case; and

   (c)The Tribunal did not give the applicant a chance to respond in writing to the matters upon which the Tribunal relied in refusing the application. 

5. As far as the bias claim is concerned, I am not satisfied that any evidence of bias has been led. Bias is a serious allegation alleging personal fault on the part of the decision-maker. Bias, be it apprehended bias or actual bias, must be clearly alleged and strictly proved.

6. The Tribunal considered the applicant's claims but rejected them because it found that the applicant was not a witness of truth.  That does not establish bias on the part of the Tribunal.  That does not show that the Tribunal did not consider the applicant's evidence fairly.  The applicant claimed that the Tribunal did not give her the opportunity to explain her case by saying that when she sought to explain the Tribunal member would not allow her to do so saying that he had already heard that.  There is no evidence in support of that claim.  It is not mentioned in any affidavit and the applicant has not provided a transcript of the hearing.  There is no reference to it in the Tribunal decision record. 

7. The third sub-ground claims that the Tribunal did not give the applicant a chance to respond in writing to the matters relied on by the Tribunal in refusing the application. In my view, the Tribunal had no obligation to do so. The claim in this sub-ground is a claim of a breach of s.424A of the Migration Act. It is clear, however, that the material before the Tribunal came from the applicant and was either information that the applicant gave for the purpose of the application for review or was information the applicant gave during the process that led to the decision under review. That information in each case is excluded from the operation of s.424A(1) by ss.424A(3)(b) and 424A(3)(ba) respectively. The Tribunal also considered independent country information, however, that is excluded under s.424A(3)(a). Consequently there was no breach of s.424A of the Migration Act. In my view the three sub-grounds of the applicant's first ground of review have not been made out.

8. The applicant's second ground of review has been described by Ms Wong of counsel as appearing to raise four further grounds of review.  That also appears to be correct.  Those sub-grounds appear to be the following:

   a)procedural fairness has been denied to the applicant;

   b)the Tribunal did not use favourable cases to her application;

   c)the Tribunal failed to consider the risk for the applicant to go back to China;

   d)There was a problem with the interpreter, some questions were not interpreted properly and the applicant did not understand some questions asked by the Tribunal member at the hearing. 

9. There is no evidence provided by the applicant of a failure by the Tribunal to provide procedural fairness. It is quite clear from s.422B of the Migration Act that Part 7 Division 4 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing Rule in relation to the matters with which it deals. As I have indicated earlier, s.424A of the Act does not apply. Section 425 of the Act does apply and it appears that the Tribunal complied with it.

10. The applicants were invited to attend the hearing.  They both attended.  There was a difficulty in obtaining an interpreter in the Fuqing dialect to attend the Tribunal hearing in Sydney but an interpreter was available in Melbourne.  This interpreter was able to participate in the hearing by means of a video link.  It is true that such an arrangement is less desirable than having an interpreter in the room.  However, it is clear from paragraph 28 of the decision record that the Tribunal member was conscious of the difficulties and attempted to seat the applicant in such a way that the interpreter had the best chance of hearing her words clearly.

11. The first applicant chose to give evidence, the second applicant did not. The issues at the Tribunal hearing were no different from those in the delegate's decision. I am also satisfied that the invitation to the hearing complied with the requirements of s.424A of the Migration Act.

12. The applicant's claim that the Tribunal did not use favourable cases to her application does not indicate any jurisdictional error.  It is just a complaint about an adverse decision.  The sub-ground that said that the Tribunal failed to consider the risk for the applicant to go back to China would indicate that in some way the Tribunal had not considered some part of the applicant's claim. The applicant has not been able to indicate any part of her evidence that was not considered and it is clear from the Tribunal decision that the Tribunal rejected all of the applicant's material claims to be a refugee on the basis of a lack of credibility. The credibility finding was open to the Tribunal on the evidence that was before it. In view of the fact that the applicant's claims were all rejected, the Tribunal was under no obligation to consider any risk that there was a real chance of her being persecuted if she were to return to China. 

13. The final sub-ground complains of a problem with the interpreter which seems to have been exacerbated by the applicant's hearing difficulty. The applicant has provided no evidence of that other than making those assertions from the Bar table at the hearing. There is nothing in the Tribunal decision record which indicated that the applicants had raised any of these concerns with the Tribunal. It is clear that the Tribunal was aware of the first applicant's claimed hearing difficulty, however, the Tribunal noted that same:

    The applicant had also been struck in one ear when she had been detained and was now partially deaf in that ear[6].

    However, the Tribunal expressly recorded that the applicant was placed in such a position that her good ear, that is the ear without the hearing difficulty, was closest to the interpreter.  The applicant claimed that she had a headache at the hearing but she did not tell that to the Tribunal member. 

    [6] See Court Book at page 124

14. There is no evidence to support the applicant's claim that she was unable to hear or understand or reply to any of the questions either through some deficiency in the interpreter or some difficulty with her own partial hearing loss.  I am satisfied that all of the four sub-grounds in the applicant's second ground of review have not been made out.

15. The applicants are not legally represented in these proceedings, although the applicants were offered the opportunity of obtaining advice from a member of the Refugee Review Tribunal Legal Advice Scheme Panel.  However, the Court file shows that the selected panel member was not able to provide advice to the applicant because she was not contactable on the telephone number that was provided.  The barrister concerned wrote on the form:

    Both interpreter and I tried a number of times.

    I also note that quite appropriately no charge has been made by the barrister concerned. 

1. The Court in these circumstances where there is an unrepresented applicant will consider the Tribunal decision independently to see whether there is an arguable case of jurisdictional error.  I have a concern about the Tribunal's finding in respect of the second applicant.  It will be recalled that the second applicant is a Part D applicant with no independent claim to be a refugee.  He claims as a member of the family unit of the first applicant. 

2. The Tribunal found at paragraph 95 of its decision:

   The Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention, therefore the applicants do not satisfy the criterion set out in s .36(2)(a) for a protection visa[7]. 

   [7] See Court Book at page 133

3. The second applicant did not make a claim to satisfy the criterion under s.36(2)(a).  That criterion provides that the applicant for the visa is a non-citizen in Australia to whom the minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The second applicant's claim should have been considered under the criterion in s.36(2)(b).  To meet that criterion the second applicant would have to show that he was a non citizen in Australia who was the spouse or a dependent of a non citizen who, (1) is mentioned in paragraph (a) and, (2) holds a protection visa.  The Tribunal decision is silent on that point.  However, it is quite clear that because the first applicant does not meet the criterion under s.36(2)(a), the second applicant cannot meet the criterion set out in sub-s.36(2)(b). 

4. While I am of the view that there is a technical error in the Tribunal decision on that point, it would be futile to remit the second applicant's claim to the Tribunal because on a determination according to law, the second applicant would not be able to meet the appropriate criteria.  In my view the appropriate order to make is to dismiss the application.  The application is dismissed.

5. The applicants have been unsuccessful in their claim. I am satisfied that it is appropriate for an order for costs to be made in favour of the first respondent, the Minister. I am satisfied that the sum of $4000 is an appropriate figure. The first applicant says she does not have money and she has told the Court that she is not working. I will take this into account in allowing her time to pay.  I allow four months to pay.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  12 August 2009