SZNUF v Minister for Immigration

[2009] FMCA 1183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUF v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1183

MIGRATION – Review of RRT decision – applicant a citizen of China – where applicant’s grounds for review not particularised.

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

Minister for Immigration v SCAR (2003) 128 FCR 553
Minister for Immigration v SGLB [2004] HCA 32
WALN v Minister for Immigration [2006] FCAFC 131
WACO v Ministerfor Immigration [2003] FCAFC 171

Applicant: SZNUF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1818 of 2009

Judgment of: Raphael FM

Hearing date: 20 November 2009

Date of Last Submission: 20 November 2009

Delivered at: Sydney

Delivered on: 20 November 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1818 of 2009

SZNUF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  She arrived in Australia on 20 February 2008 accompanying her daughter who had received a visa allowing her to study in this country.  On 9 April 2009 she applied to the Department of Immigration & Citizenship for a protection (Class XA) visa.  On 6 May 2009 a delegate of the Minister refused to grant a protection visa and on 8 May the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Refugee Review Tribunal and brought her sister with her to give evidence.  On 28 July 2009 the Tribunal affirmed the decision under review and handed that decision down on the same day. 

2. The applicant told the Tribunal that in April 2007 she and her husband had borrowed approximately $A1.6 million from a named person and a bank to invest in coal mines in Yangquan City. She and her fellow investors had been encouraged to do this by the local government of the region. She told the Tribunal that she had paid a considerable amount in bribes to the local government in order to obtain the necessary permits for the coal mine to operate.  It appears that the coal mine started to operate but after a while it was closed down by the local authority who argued that the proper procedures had not been followed. When the coal mine closed down the banks sought to recover their loans.

3. The applicant complained and believes that if she returns to China she will be sent to gaol.  There is some confusion as to whether she is claiming she will be sent to gaol because she owes so much money or because of the complaints which she made against the local government.  The applicant produced in evidence a number of documents which indicated that certain civil proceedings had been brought against her and her husband seeking repayment of the loans.

4. The Tribunal found the applicant’s evidence to be inconsistent in the manner in which I have already described.

   “[58]  The applicant in her statement attached to her application for protection and in the statement she supplied from the village committee referred to following an appeal and petition process.  In her oral evidence she referred to her and her husband being at risk because they sued the local government.  In her evidence she referred at times to the risk of being arrested for laying a complaint.  She then later gave inconsistent evidence that she was to be arrested for suing the local government.  In her oral evidence she changed her evidence and agreed that among the documents she provided were enforcement documents for the money she owed the Bank of China.  …

   [61]  The only evidence the applicant gave which was consistent and corroborated by the translated documents received was that there was a loan contract.  She was not able to repay that amount and proceedings have begun for that amount to be recovered by the Bank of China.  During the hearing the applicant agreed that this was the case.  The Tribunal had put to the applicant for her comment that while such circumstances were difficult for her and her family, they did not fit any Convention reason.  The applicant indicated she cannot comment on that.”

5. The Tribunal concluded that it could not accept that the applicant was at risk of being persecuted because she or her husband had sought to complain or petition in relation to corrupt or negligent practices of the local government. It accepted some independent country information which had been put to the applicant that there were in place procedures to deal with corruption. The Tribunal concluded that the applicant owed a debt and that while she may face difficulties upon her return to China, those difficulties was due to the debt which she owed and that in seeking to enforce recovery, the bank was only applying laws which applied generally. There was no Convention nexus to the applicant’s concerns. She was therefore not a person to whom Australia owed protection obligations.

6. On 30 July 2009 the applicant filed an application with this Court seeking judicial review of the decision of the Tribunal.  She put in her application form three grounds: “(1) jurisdictional error, (2) procedural fairness, (3) mental health of applicant never considered.”  I would note that the applicant was represented by Legal Aid at the Tribunal hearing (or at least prior thereto) and the Legal Aid Commission was the applicant’s representative for the purposes of receiving the decision. However, there is no indication that Legal Aid represented her in these proceedings.

7. For an applicant to state that the Tribunal fell into jurisdictional error and no more has no utility as a ground because it is not appropriate that either the respondent or the Court should have to guess what the jurisdictional error may have been. An allegation of procedural fairness narrows the ambit somewhat but, as this could run the gamut from failure to comply with s.424A Migration Act1958 (Cth) (the “Act”) to failure to comply with s.425, the Court and the respondents are once again placed in a fog of uncertainty. No particulars of the procedural unfairness have been supplied and on this basis the Court is unable to assist.

8. Whilst it is possible that the mental health of an applicant may be such as to have prevented a proper hearing and thus a failure to comply with s.425 of the Act; Minister for Immigration v SCAR (2003) 128 FCR 553, in this particular case there was no evidence before the Tribunal that the applicant’s mental health was in any doubt. In those circumstances, there was no obligation on the Tribunal to consider her mental health; Minister for Immigration v SGLB [2004] HCA 32. There is nothing evident from the Tribunal’s decision which would indicate that the applicant was having any difficulty stemming from her mental condition at the hearing.

9. Before me today the applicant said that her mental health was not the best on the day but did not particularise this matter any further, nor did she bring any evidence by way of medical opinion which might have assisted.  She then told me that a telephone interpreter was used at the hearing and she could not hear very well.  The hearing record does indicate that a telephone interpreter was involved [CB 119] but I note that in the Tribunal record at [CB 129] the following appears:

   “[29] The applicant appeared before the Tribunal on 29 June 2009 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing and English languages. 

   [30] The Tribunal went through the introductions and explanation of the process.  The Tribunal asked the applicant if she had any concerns with the interpreting.  The applicant replied that she did not.  The Tribunal asked the applicant if she had any objections to using this particular interpreter.  The applicant replied that she did not.”

10. In the light of this note from the Tribunal and in the absence of any other evidence from the applicant I am unable to make a finding consistent with the views expressed by the Full Court in WALN v Minister for Immigration [2006] FCAFC 131 where their Honours Ryan, Tamberlin and Middleton JJ said at [29]:

    “To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41].  Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry.” [citations excluded]

    I note also that the Full Bench in WACO v Ministerfor Immigration [2003] FCAFC 171 indicated that the requirement was not that there be a perfect translation, it would suffice if the translation was sufficiently accurate to permit the idea or concept being translated to be communicated.

11. The applicant did not raise any additional matters with me.  She said that there was nothing she could do if the Tribunal did not believe what she said.  It was not so much that the Tribunal did not believe what she said; it was more that what the Tribunal did believe indicated that the applicant’s problems did not bring her within the reach of the Convention.  I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it reached this particular decision.  I dismiss the application.  I order that the applicant pay the respondents’ costs which I assess in the sum of $4,400.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  27 November 2009