SZQCL on behalf of SZQCM v Minister for Immigration
[2011] FMCA 477
•30 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQCL on behalf of SZQCM v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 477 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider the risk of the applicant being persecuted, failed to consider his claim to be a “black child”, failed to consider his parents’ allegations, failed to allow the applicant a “detailed explanation” and breached s.425 by providing inadequate interpreter services at its hearing. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZQCL on behalf of SZQCM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 607 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 June 2011 |
| Date of Last Submission: | 14 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2011 |
REPRESENTATION
| The Applicant was represented by his Litigation Guardian, SZQCL |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 607 of 2011
| SZQCL on behalf of SZQCM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who was born in Australia on 30 June 2009 to parents who are Chinese nationals. He claims to fear persecution in China because his birth was in breach of China’s one child policy. He also claims that his parents will be persecuted in China as a result of their religious beliefs and that this will adversely affect him.
The applicant lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 3 September 2010. The applicant then applied to the second respondent (“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 4–30 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant’s parents have both separately applied for and been denied protection visas.
In a statement accompanying his application, the applicant made the following claims:
a)his parents already have another child in China and therefore his birth is in breach of China’s family planning laws and one child policy;
b)if his parents do not pay a “social compensation fee” he will not be entitled to household registration. Without it, he will not be entitled to social benefits, will not be able to enrol at a state school, will not be able to receive health care at a state-funded hospital, will not easily be able to apply for a passport or readily apply for a driver’s licence, and he will suffer discrimination in employment;
c)the “social compensation fee” is significant and if his parents cannot pay this amount then they will be sanctioned, put in detention, punished further and his mother will be forcibly sterilised. In the past his mother had experienced violence from the officers of the family planning authority (“FPA”) and was psychologically harmed by it. She had to go into hiding and some of their relatives had undergone sterilisation and now have chronic illnesses;
d)he fears that he will become a “black child” and will not be legally recognised and accepted by society, causing him to lose self esteem and dignity and to suffer psychological pressure;
e)his parents were persecuted by the Chinese government for their beliefs and they will be in danger if they return to China. The applicant may be adversely affected and become an orphan if his parents are further persecuted;
f)his father is a Falun Gong practitioner who was persecuted in China and escaped in October 2004. His application for a protection visa was unsuccessful because he was misled by irresponsible agents who advised him not to attend his Tribunal hearing; and
g)his mother was involved in an underground Catholic church in China. Her application for a protection visa was unsuccessful because she had only a primary level of education and relied on an irresponsible person for help with her written application.
In addition, she spoke the “Fujian” dialect but was provided with a Mandarin interpreter at her Tribunal hearing. She was also nervous at her Tribunal hearing and “lost her mind” when giving answers.
Applicant’s father application for protection
The applicant’s father arrived in Australia in October 2004 on a subclass 456 visa and applied for a protection visa on 29 November 2004.
This was refused by a delegate of the Minister and the applicant’s father appealed to the Tribunal. The applicant’s father did not attend his Tribunal hearing which was scheduled for 15 April 2005 and on the basis of his non-appearance the Tribunal refused the review application, finding that it could not be satisfied that he had a well-founded fear of persecution for a Convention reason. The father sought judicial review of the Tribunal’s decision in June 2005 but those proceedings were ultimately dismissed. On 6 June 2006, the father wrote to the Minister requesting his intervention and he made further submissions to the Minister on 23 October 2007.The applicant’s father arrived in Australia with a Chinese passport issued under a false name and birth date and he continued to use these in his protection visa application, his review application to the Tribunal and his request for ministerial intervention. It was not until 2009, when the father was found working at a construction site and detained, that his true identity was revealed.
The father made another request for ministerial intervention in 2009, and used his real name and date of birth. He made various submissions to the Minister. In a letter of 28 May 2009 he claimed that he had not attended his Tribunal hearing because he had been unaware of it and that he had signed some blank forms and had hardly communicated with his migration agent.
The applicant’s father claimed that he was from a Catholic family but had become a Falun Gong practitioner in August 2003. He claimed that he had been working at a construction site and had started participating in Falun Gong exercises when he noticed some of his colleagues doing them. He read a Falun Gong book which he obtained from one of his colleagues and found that some of the teachings were similar to Christianity. He began morning practice with a group of his colleagues. One morning in March 2004 more than ten police officers came to the construction site; he managed to get away but later found out that four of his colleagues had been arrested. When he called his family, they told him that the police were looking for him as he had left the construction site suddenly. He obtained a passport under a false name and date of birth and travelled to Australia. After he left China the police had visited his home “numerous times” enquiring after him. On one occasion in February 2009, they had brought a summons demanding that he report to the police for questioning. He also claimed that his wife attended an underground Catholic church in China, that their church had been raided once by the police and as a result she had to leave their home town.
The father produced two summonses: the one issued on 16 February 2009 requiring him to report to the police because he was suspected of participating in “illegal Falun Gong meeting” and another issued on 22 July 2006 requiring him to attend the police station “to get investigation” for being involved in “Falun Gong illegal gathering”.
The father made further representations to the Minister in a letter dated 21 May 2010. He claimed that his Falun Gong activities in Australia had been reported to the Chinese authorities as a result of which he had been blacklisted and his family in China had been questioned and cautioned by local police. He said that when the applicant was born he and his wife had applied at the Chinese Consulate for travel documentation for him and in the course of doing so were asked whether they had ever made any applications for protection. They told the Consulate that they had and, since then, they had been threatened through their family in China.
He also claimed that he had continued to be involved in Falun Gong activities in Australia.
Applicant’s mother application for protection
The applicant’s mother arrived in Australia on 6 August 2008 on a subclass 676 Tourist visa and applied for a protection visa on 14 August 2008 after absconding from the tourist group with which she was travelling within Australia.
The applicant’s mother claimed that from June 2003 she had attended an underground Catholic church, that in March 2006 she was arrested and beaten and that in July 2008 she delivered 300 bibles and 500 “materials” but was told to go into hiding because the authorities had found out and wished to arrest her.
A delegate of the Minister refused the mother’s protection visa application and she appealed to the Tribunal. She appeared at a Tribunal hearing on 19 December 2008 and made additional claims that she had started attending the underground church in 2003 because her husband, the applicant’s father, had had a drug problem.
She claimed that she was warned by the authorities in August 2003 not to participate in gatherings. She also said that she had attended church in Australia. The Tribunal found the mother to be an untruthful witness, finding her vague and with a poor knowledge of Christianity. As a result her review application was refused.
Tribunal
The applicant appeared before the Tribunal on 18 November 2010 and
1 December 2010 to give evidence and present arguments. The Tribunal received evidence from the applicant’s parents on the applicant’s behalf.The father made the following additional claims on behalf of the applicant:
a)
he would have to pay a fine for having a second child that would be five times the normal amount, between RMB50-100,000.
He knew of people who had in the past not paid the fine. Those people had gone into hiding, had had their property demolished and had eventually been sent to gaol. His sister’s husband had been imprisoned for five years for not paying the fine after having a second child. He said that he feared that he and his wife would be sent to gaol for having a second child who was born overseas;
b)neither he nor anyone in his family were Christians but he had started practising Falun Gong to ease some pain he had had in his back. He first learned of Falun Gong when he was working at a construction site. Some years later, when he was unemployed, he would go to the site to practise Falun Gong with seven or eight other people. He also practised in a cabin near his house but he did not tell his wife because he did not want her to worry;
c)one afternoon the police attended the construction site where he practised and arrested some people but he had not been present. He then said that he had gone about once or twice to the construction site to learn Falun Gong and had accidentally or coincidentally witnessed the authorities’ attendance;
d)he had not read any Falun Gong material in China and had never practised Falun Gong in Australia. If he returned to China he would not practise Falun Gong because it might bring him trouble. He had practised Falun Gong simply by sitting still with no movement of the arms or the legs and was not a very devoted Falun Gong practitioner;
e)approximately two to three months after his arrival in Australia, he contacted his wife in China who told him that the police had been looking for him and they had issued a summons against him for his Falun Gong practice. This was when that his wife became aware that he had been practising Falun Gong;
f)he did not know much about the applicant’s mother’s persecution. He said that she was “called to question” but he did not know if she was detained and did not know how long she was questioned and she never told him what she was questioned about. She was afraid and it had something to do with the church but he did not know any more details than that. He also did not know how she practised her religion as they did not practise the same religion and he did not think that it was appropriate for him to ask her questions about her religion;
g)after he came to Australia, family planning officials in China had tried to sterilise his wife because she had already had one child. It was due to this threat of sterilisation that she hid;
h)he had approached the Chinese consulate to obtain travel documentation for the applicant but had not told them about his previous protection visa application;
i)he had told lies in his own protection visa process because his migration agent and others had told him to. He said that the migration agent had told him that it would be beneficial to him. He had applied for a protection visa under a false name and continued to use that false name throughout the appeal process because his migration agent had told him to. He had not attended his own departmental interview and Tribunal hearing because his migration agent had advised him that he did not have to; and
j)his lawyer or migration agent had given him a blank piece of paper and asked him to sign it and he was not aware of some of the contents of his submissions to the Minister.
The applicant’s mother made the following claims:
a)her husband was introduced to Falun Gong at the construction worksite. He practised it at the worksite as well as at home with some friends. She had seen him practising Falun Gong at home;
b)her husband was nearly arrested for his Falun Gong practice and had to flee but she had not known the details until he telephoned her and told her;
c)after her husband had left China the authorities had come to their family home and harassed their elder child and as a result he had had to relocate;
d)she was only aware of the summons addressed to her husband after she had left China;
e)
she believed she would be sterilised if she returned to China.
She knew a friend in her local area who had been sterilised after having a second child. In 2002 or 2003 she fled from the family planning officials who wanted to sterilise her. She hid in different places but once her husband left China the officials stopped looking for her, believing that she was not likely to have any more children in the absence of her husband;
f)she became a Catholic in 2003 because she had health problems and her friends had told her to pray. She attended church once or twice a week from 2003 until she left China, sometimes during the day and sometimes at night;
g)she had helped deliver Bibles in 2003 for approximately one to two months but had stopped when she began working at an eel roasting factory. On 20 June 2003, she was detained for a couple of days, beaten, whipped, and injured. A person she described as her “brother” had helped her “solve the problem” and she had been released. She did not immediately tell her husband about the incident because she did not want to worry him but she had since told him;
h)in July 2008 the authorities came to the place where she and others were worshipping. A fellow worshiper told her that the authorities were approaching and she ran away. In the past the authorities had done this but she had always been able to run away from them. After this she went into hiding at a relative’s home and did not attend any further gatherings of the underground church. She believed that when she was in hiding the police went to her home to try to find her. During this period she helped other women send Bibles to another “sister” in the church;
i)since her arrival in Australia she had attended a Catholic church in Flemington. Since May 2010 she had regularly attended a Local church on Sundays;
j)she had told her husband that she was attending an underground church but had not given him any details of where it was taking place;
k)she had paid RMB270,000 to arrange for a tourist visa to travel to Australia which she had borrowed from family; and
l)the interpreter at her own Tribunal hearing had not put her answers “in right way”. Some of the answers she had provided in her protection visa application and at her Tribunal hearing were false because her migration agent had told her that if she told the truth she would be sent back to China and therefore she “did not dare” tell the truth.
The applicant’s father made further written submission to the Tribunal on 12 December 2010 stating, among other things, that he seldom practised Falun Gong in Australia because he thought that to do so would negatively affect his family in China.
The Tribunal sent a letter to the applicant on 21 December 2010 setting out particularised information that it considered would be the reason or part of the reason for affirming the decision under review and asking the applicant to comment on that information. The applicant’s father responded to the Tribunal on behalf of the applicant and said that the various submissions that had been made on his behalf to the Minister had been prepared by a migration agent and that neither he nor his wife had been aware of the mistakes in them until they were pointed out at the applicant’s Tribunal hearing. He essentially repeated the evidence that he had given at the Tribunal hearing. He clarified that the inconsistency between his evidence and that of his wife in relation to his practice of Falun Gong was due to their lack of preparation before the Tribunal hearing. He said that they were both truthful; he had kept his Falun Gong practice a secret but his wife had found out through her own observations. He also said that the applicant’s mother was poorly educated and was nervous at the Tribunal hearing, which made it difficult for her to express herself clearly. The applicant’s father claimed that they had provided information to the Tribunal to the best of their recollections and repeated the claim that discrepancies in their past applications and submissions were the product of their representatives making false claims on their behalf or telling them to concoct evidence.
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’s decision was based on the following findings and reasons.
The Tribunal found that it did not need to decide whether the applicant belonged to a particular social group of unregistered or “black children” because it found that the applicant’s parents were not credible witnesses. In this regard it said:
a)the applicant’s father’s ignorance of Falun Gong practices was a firm indication that he was not a Falun Gong practitioner and his claim to have been one and to be wanted by Chinese authorities for that reason was not credible. He also gave inconsistent information about his study of Falun Gong, the alleged police discovery of his Falun Gong practice and his Falun Gong practice in Australia;
b)the applicant’s parents gave inconsistent and implausible evidence about whether the mother knew of the father’s practice of Falun Gong in China;
c)the applicant’s parents gave inconsistent evidence about when the police first summonsed the father and the Tribunal was not convinced that a summons would have been issued in 2009, long after the applicant’s father had left China;
d)the applicant’s mother gave inconsistent evidence concerning her motivation for becoming a Christian;
e)the applicant’s mother made no mention in her protection visa application or at her own Tribunal hearing of the alleged harassment she and the father’s parents had received from the PSB in the latter’s efforts to locate the father after he left China. The applicant’s father, by way of explanation and in response to the Tribunal’s s.424A notice, said that at her own Tribunal hearing the applicant’s mother did not think to mention this and was only asked about harassment based on her religion. However, in the Tribunal’s view, if the claimed interest in the father was true, the mother would have mentioned this in her protection visa application and at her own Tribunal hearing, given that it heightened the risk of harm for her and was relevant to her own claim to fear harm in China. The Tribunal therefore found the explanation unsatisfactory;
f)the mother’s evidence about her claimed religious practice and beliefs was unsatisfactory and unconvincing;
g)the credibility of the applicant’s parents’ evidence that they would or could not pay the social compensation fee for their breach of China’s one child policy was undermined by the father’s use of a false identity for a number of years after his arrival in Australia, the parents’ inconsistent evidence concerning their employment histories and their ability to raise a significant amount of money to leave China and travel to Australia;
h)the applicant’s parents’ evidence of past attempts to sterilise the mother was inconsistent. The Tribunal found that there was much conflict in the evidence surrounding the claimed attempts to forcibly sterilise the mother. It found that no valid explanations for this were advanced and it found that the claim was not credible;
i)it rejected the father’s allegation that his former representatives had concocted parts of his submissions to the Minister or had put forward incorrect information by mistake, he claiming to be ignorant of most of the contents of the submissions made to the Minister. The Tribunal did not believe that the father would have been ignorant about the contents of the submissions to the Minister or that false claims had been made to the Minister without his consent. It found that the father had actually adopted some of the submissions. It found that the submissions to the Minister were detailed and the father’s claim that much of the content was concocted by the representative without his knowledge or consent was nothing more than a poor attempt to conceal his deceit;
j)it did not believe the mother’s claims that she had been misled by former representatives to give false evidence at her own Tribunal hearing. The Tribunal found that her willingness to give false evidence undermined her credibility, concluding that she was simply attempting to conceal the fact that she had given two divergent accounts of her religious practice in China; and
k)the mother’s inconsistent evidence and vagueness was not due to an anxious mental state or to any inability to articulate herself. The Tribunal found that the matters she was asked to discuss at the applicant’s Tribunal hearing and at her own Tribunal hearing were not complex, nor was she expected to give her evidence in a highly articulate manner. It found that her vagueness and inconsistent evidence was due to the untruthfulness of her claims.
The Tribunal further found that the applicant’s parents were not witnesses of truth. It found:
a)the applicant’s father’s claim to have been a Falun Gong practitioner and to be wanted by Chinese authorities for that reason was false. In this regard:
i)the Tribunal noted that his description of how he practised Falun Gong was inconsistent with country information about how Falun Gong is practised. It also noted that his evidence about how he practised and about how his practice was uncovered by Chinese authorities was inconsistent;
ii)it found that the summonses produced by the applicant’s father had been brought into existence to support a false refugee claim and it did not give them weight. The Tribunal did not believe the applicant’s father evidence that his representative had concocted evidence that he was actively engaged in Falun Gong in Australia and that he had told the Chinese Consulate that he had applied for a protection visa leading to further interest in him by the Chinese authorities; and
iii)the Tribunal also found that the applicant’s parents gave inconsistent evidence about the mother’s awareness of the applicant’s father practice in China and that this reflected the lack of truthfulness of the applicant’s father’s claim to have practised Falun Gong;
b)the applicant’s parents gave inconsistent evidence about their past employment and had shown a propensity to put forward false information when it suited them. They also gave inconsistent information about the claimed harassment of the applicant’s mother by family planning officials after she had had her first child;
c)the evidence of the applicant’s mother about her religious practice in China was inconsistent and she could not give a convincing account of her religious beliefs. While accepting that the applicant’s mother had attended church in Australia, the Tribunal was satisfied that she had no genuine commitment to Christianity, that the Chinese authorities have no interest in her and that she would not seek to practise Christianity in China; and
d)the applicant’s mother’s credibility had been undermined because:
i)she attempted to support her husband’s false claim to have practised Falun Gong and to have been wanted by the Chinese authorities for that reason;
ii)she gave false information about her past employment in China and attempts to forcibly sterilise her;
iii)she gave false evidence in relation to her religious practice in China, and a most unconvincing account of her religious beliefs; and
iv)she had admitted to knowingly and willingly lying about her religion at her own Tribunal hearing.
The Tribunal concluded that any evidence by a fellow church member in Australia would not be sufficient to overcome the effect of all the instances where the applicant’s mother had been untruthful. The Tribunal was therefore satisfied that the applicant’s mother had no commitment to Christianity and that she was an untruthful witness.
The Tribunal found that there was no credible evidence before it that the applicant’s parents were either unwilling or unable to pay the social compensation fee to have the applicant registered. The Tribunal found that they would take all reasonable steps to have their child registered so that he could access social services.
The Tribunal found that even though the parents had breached the family planning laws, there was no credible evidence that the authorities had ever tried to forcibly sterilise the mother. The Tribunal referred to country information which indicated that forced sterilisation in Fujian province was not a widespread practice and that there had only been one unconfirmed report of this happening since 2005.
The Tribunal found that even if the applicant’s parents were to have a third child, the possibility of either of them being sterilised was remote and that their having the applicant or even a third child did not present a real chance that the applicant would suffer persecution for a Convention reason.
The Tribunal found that if the applicant were to go to China there was no real chance that he would suffer persecution based on his parents’ claimed unwillingness or inability to pay the social compensation fee or because of any attempts to forcibly sterilise them.
Proceedings in this Court
Under the heading “Orders sought by Applicant” in the application commencing these proceedings, the applicant said:
1.I disagree with Immigration and RRT’s decision. They did not consider that I will be in big trouble and even a life challenged due to my parents background if I return.
2.RRT did not consider that I will be discriminated and treated as a “black child” in society due to the sanction by Family Planning enforced in our rural area without humanitarian concern, especially our family’s inability to pay for social compensation fee. Our family is currently suffers with financial difficulty and hard to collect money for the fine.
3.RRT member made me upset and anxious at hearing. The member also fails to give a good consideration to what my parents explained to their previous applications in which they as victims have been taken advantages by others due to their lack of knowledge of law and language barrier.
4.RRT should give me a chance to express and reconsider our detailed explanation and the documents off hearing for making a fair decision.
Under the heading “The Grounds of the Application” the applicant alleged:
1.I am a Chinese citizen and Christian who will face the persecution and social discrimination due to Family Planning policy of China if return.
2.As Australian born child, I can not go back to China since I have strong fear to be harassed and ill-treated if return
3.I will be deplored the equal right of living and not entitled for social welfare in China if my family could not pay for the social compensation fee however this is not fair and out of my control.
4.I have great concern about being affected due to my parent’s background as they are under investigation of Chinese authority for their records.
At the hearing in these proceedings the applicant’s mother also said that at the Tribunal’s hearing she had not been able to understand everything that was said to her because the interpreter at one of the Tribunal’s hearing days spoke only Mandarin, whereas she is a native Fuqing speaker, and the interpreter at the other Tribunal hearing day, although speaking Fuqing in addition to Mandarin, spoke Fuqing with such an accent that she found it difficult to understand her.
Failure to consider risk of persecution
The Tribunal’s recitation of the evidence given by the applicant’s parents at its hearing and its consideration of that evidence, summarised earlier in these reasons, demonstrates that the claims which were made on the applicant’s behalf were considered by the Tribunal in some detail. In particular, the Tribunal considered the applicant’s father’s claim to have been a Falun Gong practitioner, the applicant’s mother’s claim to have been a member of an underground Christian church and the claims of both of them to be at risk of discriminatory treatment as a result of their contravention of China’s one child policy. Ultimately, however, the Tribunal rejected everything of substance which the applicant’s parents had advanced in support of the applicant’s claim to be entitled to a protection visa, saying that they were so unreliable and untruthful that the only evidence which they had given the Tribunal and which it considered to be credible was that they came from Fujian and had two children. Such a conclusion was reasonably open to the Tribunal on the evidence. As a result, the first ground of the application does not disclose a basis upon which the Tribunal’s decision might be set aside.
Failure to consider “black child” claim
As noted in para.173 of its decision record under the heading “Findings and Reasons”, the Tribunal expressly referred to the applicant’s claim to fear persecution on the basis that his parents “cannot and will not pay the necessary fee to have him registered and so he will suffer serious harm”, noting that although it was not articulated by the parents the Tribunal assumed that this claim of serious harm was based on the applicant’s membership of a particular social group of unregistered or “so-called black children”, or on an adverse political opinion imputed to him by reason of his parents’ activities. Again, the Tribunal’s recitation of the evidence before it, coupled with its reasons for decision, demonstrate that the Tribunal gave considerable attention to the breach by the applicant’s parents of China’s one child policy.
It considered their ability and willingness to pay the fine which might be levied as a result of that breach and concluded that they would take all reasonable steps to have the applicant registered so that he could access social services. For these reasons, the second ground of the application does not indicate that the Tribunal’s decision is affected by jurisdictional error.
Failure to consider parents’ allegations
Although the applicant alleges that the Tribunal member made him upset and anxious at the hearing, as he was, at that time, approximately eighteen months old, this cannot support a finding of jurisdictional error on the Tribunal’s part.
As to the remainder of the allegation, the Tribunal considered in some detail the allegations which the applicant’s parents had made in support of their own applications for protection visas, the mother’s evidence at her Tribunal review hearing and the submissions which were subsequently made to the Minister. These allegations and submissions were contrasted with what the applicant’s parents advised the Tribunal as constituted on this occasion and were considered in some detail as part of that comparison. Indeed, the discrepancies between the various versions of events which the applicant’s parents advanced at different points in their own visa applications and in support of the applicant’s formed the basis of the Tribunal’s conclusion that they could not be believed. Far from failing to give “good consideration” to what the applicant’s parents had said, it gave their accounts close consideration and for this reason concluded that the applicant’s claim for protection, as advanced by his parents, could not be accepted.
Failure to allow detailed explanation
The fourth ground of the application implies that the Tribunal failed to afford the applicant a proper opportunity to put his case to the Tribunal. Such an allegation must be rejected. The Tribunal’s hearing was listed on two occasions, the first listing lasting for approximately four hours and the second over two and a half hours. During that time the applicant’s parents gave the evidence which was set out in the Tribunal’s decision record and is summarised above at [18] and [19]. Further, the Tribunal sent the applicant a detailed s.424A notice to which the applicant’s father replied, also in considerable detail.
This notice together with the responses supplied by the applicant’s father were set out in the Tribunal’s decision record. That part of the Tribunal’s decision under the heading “Findings and Reasons” discloses a close analysis of the information available to the Tribunal including the evidence supplied at the Tribunal’s hearing and subsequently. I am not of the view that the Tribunal failed to afford the applicant a full and complete opportunity to present his case or to address the Tribunal’s various concerns which were set out in its s.424A notice or that the fourth ground of the application supports a finding of jurisdictional error.
Fear of discrimination for breach of one child policy
The first ground of the application under the heading “The Grounds of the Application” repeats the essence of the second allegation of the application and, for the reasons given in relation to that ground, does not support a finding of jurisdictional error.
Australian-born child
In the second ground under the heading “The Grounds of the Application” the applicant alleges that he cannot go to China for fear of harassment and ill treatment because he is an Australian-born child. No claim of this sort was made to the Tribunal and thus this ground does not provide a basis to conclude that the Tribunal erred.
Fear of discrimination if family does not pay penalty under one child policy
The third ground under the heading “The Grounds of the Application” also repeats the essence of the allegation made in the second ground of the application and for the reasons given in relation to that ground, does not point to error on the Tribunal’s part.
Fear of the consequences of being the child of his parents
The allegation that the applicant would be concerned about being affected as a result of his parents’ backgrounds must founder on the Tribunal’s comprehensive credit-based rejection of practically everything which the applicant’s parents said to it. Relevantly for this allegation, the Tribunal found that the Chinese authorities have no interest in the applicant’s parents and were not seeking to arrest them as alleged, a finding which was open to the Tribunal and is not reviewable in these proceedings. This implied challenge to the Tribunal’s rejection of the merits of the applicant’s application does not disclose jurisdictional error on the Tribunal’s part.
Breach of s.425
At the hearing in these proceedings the applicant’s mother said that she does not speak Mandarin well and could not quite understand what was said to her by the interpreters at the two listings of the Tribunal hearing. Further, she said that the interpreter who spoke both Fuqing and Mandarin spoke Fuqing with such a strong accent she could not understand her very well. The applicant’s mother’s evidence was that she told the interpreter that she could not quite understand.
The applicant’s mother was taken to her response to the Tribunal’s invitation to the applicant to attend the first hearing day and acknowledged her signature on the form dated 10 November 2010 which, amongst other things, said that she needed a Mandarin interpreter.
She was also shown a form dated 22 November 2010, which appeared to bear her signature and which requested a Mandarin interpreter for the second day of the Tribunal’s hearing. She said that the signature on that second form did not appear to be hers. The signatures on the two documents appear to be the same although the photocopy reproductions available to the Court do not permit one to say that there are not subtle differences in the originals which would support the applicant’s mother’s allegation that the second document was not signed by her.The interpreter provided by the Court for the purposes of its hearing spoke Mandarin and the applicant’s mother acknowledged this.
The evidence of the applicant’s mother appeared to be given in support of an unarticulated allegation that the Tribunal had denied the applicant the sort of hearing to which he was entitled under s.425 of the Act by reason of his mother’s inability to communicate effectively with the Tribunal member. Although the applicant’s mother’s evidence was that she could not understand the interpreter well and had complained to her about this, it is difficult to be convinced of this fact in circumstances where, at least on one occasion, the applicant’s mother requested a Mandarin interpreter not a Fuqing speaker for the Tribunal’s hearing, gave no evidence as to the ability of the applicant’s father to communicate at the Tribunal hearing and made no complaint to the Tribunal, either at its hearing or subsequently, including in response to the s.424A notice, of any difficulties in communication which she had encountered at the Tribunal hearing. Further, and most tellingly, the applicant made no complaint to the Court about the Mandarin interpreter provided to her at the hearing of this application and gave every impression of fully understanding what was interpreted to her while the interpreter gave the impression of understanding the applicant’s mother.
In such circumstances, I find that it has not been proved that the applicant’s mother was unable to understand what was said to her by the interpreters provided by the Tribunal for the purposes of its hearing. Nor has it been demonstrated that the applicant’s father could not communicate effectively at the Tribunal hearing. As a result, the evidence does not support a conclusion that the applicant was denied a proper hearing before the Tribunal.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 June 2011
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