SZOFB v Minister for Immigration

[2010] FMCA 487

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFB v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 487

MIGRATION – Review of decision of RRT – where applicant complains about interpretation but does not produce any evidence upon which his claims can be tested.

Migration Act 1958 (Cth), s.91R(3)

SCAA v Minister for Immigration [2002] FCA 668
SZHVL v Ministerfor Immigration [2008] FCA 356
SZJZE v Ministerfor Immigration [2007] FCA 1653

Applicant: SZOFB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 486 of 2010

Judgment of: Raphael FM

Hearing date: 30 June 2010

Date of Last Submission: 30 June 2010

Delivered at: Sydney

Delivered on: 30 June 2010

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $2,300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 486 of 2010

SZOFB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  He arrived in Australia on 7 September 2007, accompanying his son who was a student visa holder.  On 29 July 2009, he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa.  On 13 October 2009, a delegate of the Minister refused to grant a protection visa and, on 4 November 2009, the applicant applied for review of that decision from the Refugee Review Tribunal.

2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was the Convention reason of religion.  The applicant stated that he was a Christian and that before he came to Australia, he took part in underground church activities in secret.  He said that in 2005 his missionary activities were checked out by the government authorities and the police, he was questioned and detained where he was ill-treated, violated and tortured, leaving him with medical problems due to electric shocks.  His wife is also a Christian.  She had also suffered.  She had also made an application for a protection visa in 2007. 

3. The Tribunal questioned the applicant about a number of matters upon which it had concerns; firstly, about the fact that notwithstanding his claims that he was a person of interest to the Chinese authorities, he had obtained a new passport in Australia in 2008. The applicant told that when he had gone to renew his passport he was questioned by the authorities at the consulate as to whether he had made a claim for a protection visa.  At that time he had not done so and told them that. He said that the consulate followed this up with a phone call. The Tribunal pointed out to him that this complaint had not appeared prior to the hearing.

4. The Tribunal asked the applicant about his accommodation in China during the period prior to him coming to Australia. The applicant gave a response which indicated that he had lived at various places but that response, as reported in the Tribunal’s decision records [31] [CB 89], is confused.

5. The Tribunal questioned the applicant about his return to China in 2007.  The applicant told the Tribunal that he had returned because his father was ill.  It would appear that his father later died, but the applicant said to the Tribunal that he did not go to the funeral.  The Tribunal expressed concern that he should return to China so soon after leaving the country ostensibly because of his fear.

6. The applicant told the Tribunal that he had trouble in April 2005 when he was arrested by four PSB officers, and the Tribunal asked him how he managed to remain in his home and carry on at his work until May 2006, if the complaints he made about continued harassment from the PSB was occurring. Once again, the Tribunal concluded that the applicant gave confused responses [39] [CB 90-91]; also, [60] [CB 95]. 

7. In its Findings and Reasons, the Tribunal concluded that it could not accept the applicant’s claims for reasons which it explains in some considerable detail and which I have alluded to in these reasons.  They included the confused responses, the return to China, the late application for a protection visa on the day prior to the expiry of his accompanying parent visa, and his lack of knowledge of the Christian religion.  At [64] [CB 96], the Tribunal says:

   “The Tribunal also does not accept as true the applicant’s claims that he is accused and branded as an activist for the Tibetan movement, and also branded as a Falun Gong supporter in China.  These claims are mentioned for the first time by the applicant before the Tribunal, and are not mentioned in his application for a protection visa.  He also told the Tribunal at the hearing that he did not tell the delegate about these claims as the delegate was impatient and did not ask him about this.  The Tribunal does not accept that this reasonably explains why such serious claims were not mentioned earlier by the applicant as reasons he fears harm in his country.  Given the seriousness of these claims, if they were genuine, they would have been mentioned earlier by the applicant in the Tribunal’s view.”

8. On 23 June 2010 the applicant filed an application for review of the Tribunal’s decision in this Court.  He raised six grounds.  The first was:

   “I disagree with immigration and RRTs decision since I am a Christian.  They did not consider that I will be in danger if I return.”

   This is not a ground which illuminates a jurisdictional error on the part of the Tribunal.  It seems to me to be nothing more than a request for merits review of the decision.  I cannot grant merits review. 

9. The second ground is:

   “RRT did not consider that I am still a Christian in Australia and it will also bring me a big trouble if I return home.”

   This ground relates to the Tribunal’s finding that the applicant, who it accepted worshipped regularly at a Christian church in Sydney, had undertaken this activity otherwise than for the purpose of strengthening his claim to be a refugee; s.91R(3)(b), Migration Act 1958 (Cth) (the “Act”).  The ground evinces a disagreement by the applicant with the Tribunal’s finding, but this was a finding of fact and to delve into it would be to provide the applicant with merits review.  It is similarly unable to be relied upon.

10. The third ground was:

    “RRT member questioned me at hearing, made me feel very upset.  They never trusted me and I do not think they have the right attitude to my application.  RRT should grant my application.”

    It seems to me that this is a claim that the Tribunal was biased.  Von Doussa J in SCAA v Minister for Immigration [2002] FCA 668 described actual bias at [36] as:

    “…arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. "The question is not whether a decision maker's mind is blank; it is whether it is open to persuasion": Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.”

11. The applicant has provided no evidence of the bias that he alleges.  In SZHVL v Ministerfor Immigration [2008] FCA 356, McKerracher J said [17]:

    “It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.

    These authorities make it clear that I am unable to assist the applicant in his claim of bias without some better evidence.”

12. The fourth claim was that:

    “I am a Chinese citizen and I am a Christian for years.  I have been warned by my local security and company to be put in prison if I continue this activity.”

    This is a statement of fact which does not suggest any jurisdictional error on the part of the Tribunal, being merely an argument that the applicant has already put to the Tribunal as to why he would fall within the Convention definition. 

13. The fifth ground is:

    “I have never given up my faith as a Christian and I have been pursuing the truth.  I cannot go back to China since I am very scared to be sentenced.”

    The remarks made above apply similarly to this ground. 

14. The final ground in the application is:

    “I have been to church every Sunday since I arrived in Australia.  I believe the Chinese Government will still look for me if I return.  My family told me not to go back since they came to my home and asked where I am about.”

    This, again, is a statement reiterating arguments put by the applicant before the Tribunal.  It does not illuminate a jurisdictional error and would not be a ground upon which this Court could remit the matter.

15. The applicant appeared in person before me. He told me that the interpreter at the hearing had made mistakes and didn’t relay what he had said to the Tribunal. He told me that the interpreter was a Cantonese speaker and that he, the applicant, was a Mandarin speaker. He said that he answered the same questions three times, but still the interpreter did not understand what he said. He gave me, as an example, the extract from the Tribunal’s decision [64] [CB 96] that I have already set out in these reasons at [7]. He told me that what he actually said to the Tribunal that the government had clamped down on Falun Gong, Tibetans and Uigar people in recent times; that he never said that he was a member of Falun Gong or an activist for the Tibetan movement.

16. The difficulty which I have with this assertion is this, firstly, Middleton J in SZJZE v Ministerfor Immigration [2007] FCA 1653 said with regard to a ground complaining of inadequate interpretation:

    “With respect for the first ground, in order for the appellants to succeed, they need to establish, by probative 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 [authorities omitted].”

    The applicant has not provided me with any evidence at all. And although his complaint about the paragraph has an initial ring of possible truth to it, on closer examination, it appears to have some difficulties. At [CB 79] there appears the RRT hearing record. It names the interpreter. It gives the language/dialect of the interpreter as Mandarin. It gives his NAATI level as level 3. Thus, the only evidence which I have in relation to the dialect or dialects spoken by the interpreter is contrary to that asserted by the applicant. The other concern which I have is that if one reads [64] carefully, one will see that the Tribunal clearly took the applicant up on the statement that he had made.

17. First of all, the Tribunal notes said this was only mentioned for the first time. The applicant gave a response which would indicate that it was an actual claim being made, rather than a comment upon current Chinese reaction to dissidence.  Second, the applicant admitted that he was aware that if he was to make this allegation, he was required to provide a transcript but he has not done so.  He has not suggested to me that I could obtain any benefit from listening to the tape.  He has not asked for an adjournment in order to produce either the tape or a transcript.  This Court should deal with the case that is before it and the applicant has not persuaded me that I could be satisfied of the allegations that he makes concerning interpretation. 

18. The applicant also told me that the Tribunal did not believe him and that it should send someone to China to check that what he had said was the truth. If he went back, he said, he would be in trouble. He had sent emails to other Christians in China, and these have been detected by the police. Whatever might be the current law upon the obligation of the Tribunal to make inquiries, it most certainly does not extend to sending representatives to a foreign country for the purposes of checking the accuracy of an applicant’s statements. It is trite law that the applicant is required to satisfy the Minister of his claim to a protection visa and, whilst there is no burden of proof placed upon him, it is not sufficient to make assertions and request that those assertions be established by the finder of fact.

19. In these circumstances, I am unable to assist the applicant by making a finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The application is dismissed. The applicant should pay the respondent’s costs which I assessed in the sum of $2,300.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  8 July 2010