SZOUG v Minister for Immigration
[2011] FMCA 316
•11 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOUG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 316 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – breach of s.425 of the Migration Act 1958 (“Act”) – quality of interpreter service at Tribunal hearing – whether Tribunal’s questions at hearing confused the applicant – bias. |
| Migration Act 1958, ss.91R, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZMSA v Minister for Immigration & Citizenship [2010] FCA 345 Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 |
| Applicant: | SZOUG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2497 of 2010 |
| Judgment of: | Cameron FM |
| Hearing dates: | 16 February 2011, 28 April 2011 |
| Date of Last Submission: | 28 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2497 of 2010
| SZOUG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, he breached the family planning laws and was a member of a Christian Shouter underground church. He alleges that while in China he attended an underground church and undertook missionary work. He also claimed that in breach of family planning laws he had had four children which had led to his arrest and severe financial penalties.
After his most recent arrival in Australia, on 19 July 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 18 December 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-21 of the Tribunal’s decision. Relevant factual allegations are summarised below.
In the information provided with his protection visa application the applicant claimed:
a)he attended an underground church of Shouters in China and undertook missionary work;
b)he has four children which is a breach of the family planning laws in China. As a result of these laws, his wife was forced to abort a pregnancy in its fifth month and his fourth daughter who was born in 1991 was given to another family;
c)as a result of his breach of the family planning laws, he was subject to large financial penalties, including paying school fees for his children three times more expensive than that of other children, and was discharged from his job in a state-owned company. He started his own business, a grocers shop, but he was the victim of extortion from the local government;
d)he located his daughter who had been adopted and subsequently fought with the family which had adopted her. As a result, that family reported his involvement with the underground church to the police and he was arrested and detained for five days. Whilst in detention he was punished, suffered mentally and physically and now has a mental condition. He paid a bribe for his release and was cautioned to stop his church activities or he would be gaoled; and
e)he takes part in local church activities in Australia.
In his interview with an officer of the Minister’s department on 2 December 2009, the applicant claimed that he had been a Shouter since the 1980s, joining because he needed psychological support in relation to his family planning issues, and had been baptised in May 1990. He also stated that he had not been to a Shouter church in Australia.
The applicant attended three Tribunal hearings. At the first hearing on 22 February 2010, he made the following further claims:
a)he had visited Australia in May 2006 to accompany his older daughter to study and again between June and August 2008 to accompany his second daughter;
b)in 1989, he was fined and his door and windows smashed because he had breached the family planning laws. The authorities also came to his house in August/September 1992 and his wife was sterilised in about 1992. He was dismissed from his work in a state-owned company in October 1992. He then said that he was dismissed in 1998, opened his shop in July 1997 with no licence and then obtained a licence in 1998;
c)he joined the Shouters in 1989 but he rarely went to church between 1992 and 1999 because China was cracking down on the church quite harshly at the time. After 1999 he went about every month or two;
d)his daughter who had been officially adopted out now lives with his family. He told the adoptive parents of his daughter that he was a Shouter and after he refused to lend them 30,000 yuan, they reported him to the authorities;
e)his old passport was close to expiring but he had been arrested between 16 and 21 March 2009 because he was a member of the Shouter church and was warned that he could not leave the country. In May when the police refused to help him to get a replacement passport, he went to see a contact who helped him get one. He spent 130,000 yuan to get a new passport and to pass through customs;
f)while he was in detention for five or six days in May 2009 for being a member of the Shouters church, he was beaten on his lower back, left arm and head. He spent 30,000 yuan on gifts to facilitate his release;
g)his wife told him that since he left China people from the local police station had approached her about five or six times looking for him;
h)his former teacher introduced him to a church in Padstow in August 2006. He began to attend Sunday service and to worship in private homes in the evening. The “worship activity” in the Padstow church was different to that in the church in China;
i)he said that he had tried to find a Shouter church on the internet and by asking “many people” but without success. However, in January 2010 his younger daughter found a Shouter church in Sydney as she happened to be walking past the building. He then said that she had heard about the church from someone else, tried to find it for him and as she was walking past the church she heard people singing and praying and went inside. After his daughter told him about this Shouter church he started attending and received Bible training for a fee of $75; and
j)he will be arrested if he returns to China.
At the second hearing, held on 17 May 2010, the applicant said that he had made attempts to find a local church by conducting searches on the internet as well as by asking fellow church members from the Padstow church. He added that he attended a local church when he returned to China after his visit to Australia in 2006.
The Tribunal telephoned the minister from the Padstow church. He said that when he had been a school teacher in China the applicant had been his student. He said that he knew the applicant was a Christian in China but he did not know what type of home church he had attended. He said that the applicant attended the Padstow church and the Chatswood branch of the church but had not told him he was attending any other church.
At the third Tribunal hearing, on 15 September 2010, the applicant’s daughter gave evidence that she had found the local church by chance as she walked past it and heard singing. She also said that she did not think that her father had ever asked her to help him locate a local church.
At that hearing, the applicant made further claims, including the following:
a)he had rarely gone to church between 1992 and 1999 because of frequent raids by local authorities. He knew of three church members who had been arrested in 1995 but he had never been arrested during these raids;
b)when he was detained in March 2009, he was made to sign a statement at the police station although he did not know its contents. At first the police told his wife that somebody had reported him but they later told his friends over lunch that it was the family which had adopted his daughter who had reported him to them. He said that his case was still pending; and
c)he was no longer facing any persecution for breaches of the family planning laws.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal found that the applicant had not in the past, and would not in the reasonably foreseeable future, face a real chance of persecution on the basis of breaches of the Chinese Family Planning Regulations (“FPR”) because:
a)the evidence did not suggest that the applicant had, or would in the reasonably foreseeable future, suffer any form of economic harm or discrimination. He had a successful business in China through which he was able to fund two of his daughters to study in Australia, all his children had attended school and it did not appear on the evidence that they had suffered serious harm or discrimination;
b)the family planning laws in China are laws of general application, punishments administered under those laws do not ordinarily constitute persecution and there was nothing to suggest that the FPR were applied to the applicant or his family in a discriminatory manner; and
c)the applicant confirmed at the Tribunal hearing that he had no future concerns on this basis.
The Tribunal did not accept that that the applicant was a follower of the local church, or Shouters, in China for the following reasons:
a)the applicant demonstrated little knowledge of important aspects of the fundamental beliefs and practices of the local church. The Tribunal noted that he could not say what God’s economy is, he lacked knowledge of the twelve crucial items which elaborate on the common faith of Shouters, he lacked knowledge of the New Jerusalem, he was unable to differentiate between pray reading and ordinary praying, he said that God baptised Jesus and he failed to express knowledge of the Bible beyond talking very broadly about the book of Matthew and supplying basic information about the birth of Jesus. Even taking a liberal view of the knowledge displayed by the applicant, the Tribunal was not satisfied that his level of knowledge was consistent with what could be expected of someone who had been a member of the local church since 1989;
b)the applicant initially knew very little about the Shouter religion but his knowledge increased over time once he was on notice of the consequences of his lack of knowledge following the negative decision on his visa application. In the Tribunal’s view, this increase in knowledge was accounted for by the fact that he started attending a local church in January 2010 and attended a specific training class at a cost of $75. The Tribunal was not satisfied that this conduct was engaged in other than for the purpose of strengthening his claims to refugee status and thus disregarded it pursuant to s.91R(3) of the Act;
c)the Tribunal considered the fact that the applicant only started attending a local church in Australia in January 2010 indicated that he was not a follower of the church in China. It did not accept that if he had been a follower of the local church when he first arrived in Australia he would have been unable to locate a local church earlier than January 2010;
d)the Tribunal found that the evidence which the applicant gave about his failure or inability to find a local church in Australia was inconsistent and it considered that this evidence lacked credibility. It considered that he had joined the local church in January 2010 to address deficiencies in his knowledge of it; and
e)the Tribunal did not accept the applicant’s claims about the discovery of his religious beliefs in China, not believing that he would have told virtual strangers about being a Shouter when he had also stated that the congregation did not discuss, even among themselves, the arrests of other members because they were afraid. The Tribunal considered his evidence on this issue to be contradictory and inconsistent and that this indicated that he was not telling the truth about the events in question. The Tribunal also found that the applicant gave conflicting evidence about how he knew that the family which had adopted his daughter had told the authorities about him.
The Tribunal considered that the evidence given by the applicant’s daughter did not add anything to that given by the applicant because what she knew about his arrest was based on what others had told her, including information told to her by the applicant.
Although it was unable to rule out the possibility that the applicant had attended church in China to a limited extent, the Tribunal did not accept that he had attended the local church in China. This was because the beliefs and practices which he had described bore little resemblance to local church beliefs and practices. Accepting that the applicant had attended church in China (albeit not a local church), the Tribunal was satisfied that he had never been persecuted in China for reasons of his religion. Indeed the Tribunal was not satisfied that the applicant suffered any restriction on his ability to attend church which amounted to such serious harm that it could be regarded as persecution. The Tribunal concluded that should the applicant return to China, any chance of restrictions or arrest was not real or substantial or sufficient to give rise to a well founded fear of persecution. In this regard, the Tribunal noted that the country information available to it indicated that millions of Chinese citizens are able to practise their religion freely and it found that the applicant was one such person who was able to practise his religion with relative freedom.
The Tribunal found that if it was the case that the applicant had attended church from 1989, he had not claimed to have been persecuted at any time over that claimed twenty year period of church attendance and thus he had not made general claims to fear persecution on religious grounds. The Tribunal found that the applicant’s claims of future persecution were based on his religious beliefs having been disclosed to the authorities in March 2009 and on the fact that the case against him had not been finalised when he made his unauthorised departure from China. The Tribunal did not accept that the applicant would face future persecution for this reason.
Proceedings in this Court
The applicant’s amended application raised a single ground of review which was pleaded as follows:
1.The Tribunal erred by failing to provide the Applicant with a genuine hearing as required by s 425 of the Migration Act 1958.
Particulars
The hearings before the Tribunal were conducted using interpreters who were not familiar with, or able to correctly translate, terms and expressions relating to the religious group to which the Applicant claimed to belong. This resulted in misunderstandings and confusion which were interpreted by the Tribunal as showing a lack of knowledge of the beliefs and practices of that group. As an example, the Tribunal questioned the Applicant concerning a particular expression, in English “God’s economy”, which was translated literally by the interpreter instead of using the corresponding Chinese term used by the group.
The inadequacy of the interpreting thus prevented the Applicant, to a significant degree, from giving evidence and presenting arguments relating to the issues in the review.
At the hearing in this proceeding the applicant also submitted that the Tribunal had been biased against him, in that it did not believe him, and had also questioned him in such a way that he became confused.
Evidence
The Minister tendered a Court Book of documents relevant to the applicant’s visa application and his subsequent dealings with the Minister’s department and with the Tribunal.
The applicant tendered a seven page document detailing alleged errors and shortcomings in the interpreter services provided to him at the interview with the departmental officer and at the three Tribunal hearings. It became exhibit 1. Only the matters concerning the Tribunal hearings are relevant to the present proceeding. The applicant also adduced evidence from Ms Yaying Chen, a NAATI level three interpreter, who listened to the sound recordings of the departmental interview and Tribunal hearings and prepared the seven page table of translation mistakes which was exhibit 1. She said that she had not included in the table mistakes of a very minor nature which, in her view, would not have caused any confusion or misunderstanding. She said that the instances of mistranslation set out in exhibit 1 were instances which were more than minor and that three of them were particularly significant.
The first of the three passages which Ms Chen described as significant mistranslations was in the third CD of the first Tribunal hearing. MS Chen said that the applicant had said:
Here we call it “Assembly/Calling Out”. Here we call ourselves “True Christianity”
whereas the interpreter at the Tribunal hearing had translated the applicant’s words as:
like beckons … it’s like calling someone. So it’s called “true Jesus”. It’s calling church or true Jesus church.
The second mistranslation which Ms Chen believed to be significant was found on the first CD of the second Tribunal hearing where the interpreter on three occasions described the Labor Council Building in Sussex Street, Sydney as the “Chinese Party Building in China town” or the “Chinese Party Building”.
The third misinterpretation which Ms Chen said was significant was in the second CD of the second Tribunal hearing where she said that the applicant’s words:
Because while I was detened [sic] starting from 16 March, I used RMB 30,000 bribe money so that I was released. I was not released as a result of having been sentensed [sic] for, say, half a year or a year. If so there would be no record against me and I would have been able to leave the country.
were translated as:
After I was arrested on the 16th, I was released because I paid money. But they haven’t sentensed [sic] me, say, half a year or one year. If they did sentense [sic] me then I would not have a record anymore. Because I managed to get out using the connection, so that’s why the case is not finished.
In cross-examination Ms Chen explained that she considered those passages to be more significant than the others identified in exhibit 1 because, she said, the other mistranslations had ultimately been clarified at some point during the Tribunal hearings. She said that the three examples identified above had not been clarified and hence were more significant.
Consideration
Breach of s.425
If the Tribunal invites an applicant to a hearing to give evidence and present arguments, it must ensure that the applicant has a meaningful opportunity to give evidence or present arguments at that hearing: SZMSA v Minister for Immigration & Citizenship [2010] FCA 345; Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575. Where it is alleged that a breach of s.425 arises out of inadequate interpreter services at a Tribunal hearing, it must be demonstrated that the applicant in question was effectively prevented from giving his or her evidence or that errors in interpretation occurred which were so material that they caused the decision-making process to miscarry: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 at [29].
The particulars of the applicant’s allegations concerning the inadequacies in the interpreter services at the Tribunal were in two parts. The first is found in the amended application. There he asserts that the Tribunal’s interpreters were not familiar with or able to correctly translate terms and expressions relating to the religious groups to which he claimed to belong. The applicant alleges that this resulted in the Tribunal concluding that he lacked knowledge of the beliefs and practices of the group in question. The second part is to be inferred from the case put by the applicant at the hearing when he alleged that the breach of s.425 was evidenced by exhibit 1 and the mistranslations relating to the description and name of the local church in China, the correct name for the Labor Council Building in Sussex Street, Sydney and the circumstances surrounding the proceedings brought against him by the Chinese authorities and the interaction of these events with his ability to depart China.
The breach of s.425 alleged in the amended application is not supported by the evidence which the applicant adduced. Based on Ms Chen’s evidence, there are only three aspects of the translations at the Tribunal hearings which were of any significance. All the rest were very minor or had been resolved by other evidence at the hearings. None of those three mistranslations is concerned with the doctrines and beliefs of the local church in China, albeit the first was concerned with its description and nomenclature. Although it appears from the applicant’s written submissions to the Tribunal dated 27 September 2010 that he had concerns about the manner in which he was questioned about his beliefs and the issues which the Tribunal had raised regarding his lack of knowledge of theoretical issues concerning the local church, the evidence adduced by the applicant in this proceeding does not support a conclusion that the Tribunal and the applicant misunderstood each other when these issues were being discussed at the Tribunal hearings. I find that the allegation as particularised in the amended application is not made out.
Nor could it be said that the three passages from exhibit 1 which Ms Chen identified to be significant demonstrated that the Tribunal had breached its obligations under s.425. It is not apparent that the mistranslations in question effectively prevented the applicant from giving his evidence or were so material that they caused the decision-making process to miscarry. As already noted, the first of them was concerned with the name or description of the local church in China. The proper nomenclature of this group was not a matter on which any aspect of the Tribunal’s review turned. Nor could it be said that this small exchange amounted to the applicant being prevented from giving his evidence. Similarly, nothing turns on the interpreter’s misdescription of the Labor Council Building as the “Chinese Party Building”. Neither the description of that building, its location, nor the particular details of the location of the Shouters church in the city of Sydney were matters of any significance to the Tribunal’s considerations.
As to the last of the three passages, even in its correct translation, it lacks clarity. The mistranslation may represent the efforts of the interpreter to make sense of what the applicant was saying. Nevertheless, the issues of whether proceedings were brought against the applicant by the Chinese authorities and how the applicant left his country of nationality were ones which were subsidiary to the principal question which the Tribunal had to decide, namely, whether he had been a member of the Shouters church in China as he alleged. As the Tribunal said:
His claims of having been detained in March 2009, and to have a well founded fear of future persecution because of this, therefore hinge on his claim that the authorities became aware of his religious beliefs in March 2009 in the circumstances claimed. (at para.147)
In this regard, the Tribunal rejected the applicant’s evidence that he had been reported to the police by the adoptive parents of his fourth daughter, saying that it did not consider that he had put forward sensible reasons which explained satisfactorily why he would have told them that he was a Shouter. It concluded that his conflicting evidence on the question indicated that he was not telling the truth about the events in question. In this regard, the Tribunal found:
In all the circumstances, the Tribunal does not accept that the applicant gave this information to the family. It therefore does not accept that they informed the authorities that he was a Shouter and that he was arrested and detained as a consequence. The Tribunal therefore does not accept that the applicant left China with an unfinalised case against him, or that he would be persecuted for this reason if he returned. (at para.149)
Consequently, even though the third of the three passages was mistranslated such that its true meaning was not conveyed to the Tribunal, I am not of the view that it was so material to the Tribunal’s considerations that it made the decision-making process miscarry.
As a result, I conclude that the additional basis upon which the applicant asserts that the Tribunal breached s.425 of the Act, grounded on the three passages quoted above at [23]-[25], does not disclose jurisdictional error.
Bias
The fact that the Tribunal did not believe the applicant’s version of events is not, without more, indicative of bias. In order to demonstrate bias it is generally necessary for a party to demonstrate either that the Tribunal is so committed to a conclusion already formed that its conclusion is incapable of alteration or that a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in question and the conduct said to give rise to an apprehension of bias would reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the matter before it. Neither of those tests is satisfied simply by the Tribunal’s conclusion that the applicant was not telling it the truth. Further, the only evidence before the Court relevant to this issue is what is contained in the Tribunal’s decision record and nothing in that decision suggests bias, whether actual or apprehended, on the part of the Tribunal.
Tribunal confused the applicant
If the Tribunal conducted its hearing in such a way that the applicant was unable to give the evidence which he wished to give then it would have failed to give him a meaningful opportunity to put his case. However, the Tribunal’s summary of the evidence and arguments at its hearings does not support a conclusion of the sort which the applicant would wish the Court to draw and no transcript of the hearing which might provide additional detail has been put before the Court. I also note that at the conclusion of the third Tribunal hearing the applicant said that he had nothing further to add and requested that the Tribunal make its decision quickly. In the circumstances, there is no basis to conclude that the applicant was denied a meaningful hearing by reason that the Tribunal’s questions so confused him that he was unable to put his case properly.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 11 May 2011
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