SZQDD v Minister for Immigration
[2011] FMCA 570
•11 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQDD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 570 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424AA, 425 |
| Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 |
| Applicant: | SZQDD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 681 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2011 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 681 of 2011
| SZQDD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 17 March 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a citizen of China who lodged a protection visa application in March 2010. The applicant was invited by a delegate of the first respondent to attend an interview. According to the delegate’s reasons for decision, on the day scheduled for the interview the applicant advised, through a migration agent, that he wished to submit a revised application and set of claims in his true identity. This was an identity other than that referred to in the initial protection visa application.
The applicant submitted this revised application on 28 June 2010 with an amended set of claims under the name that he claimed was his true identity. His application was refused and he sought review by the Tribunal.
The applicant attended a Tribunal hearing. As his grounds of review relate to the Tribunal hearing, I will return to what happened in that hearing after outlining the Tribunal findings and reasons.
In its Findings and Reasons the Tribunal summarised the applicant’s claims. It set out that in his initial protection visa application he had claimed that the local government confiscated the family property and left him with nowhere to live, that they put up a “fierce fight” and that he was detained for 15 days. He initially claimed that thereafter his parents set up a temporary tent on the site of his demolished house, that they were threatened and that his father died of a heart attack. He claimed that he then went to the city government and was taken into the care of the police and that his presence was a threat to the local government.
In his further written statement (dated 24 June 2010 and lodged with the revised protection visa application) the applicant claimed that after his father passed away, he and his mother were dependant on each other. In November 2008 the government took a group of hooligans to his village, consequently many people were hurt and taken to hospital, including his wife. The applicant claimed that he was also hurt but not seriously and that when he approached the town government he was arrested. He claimed that he was hit and detained for 10 days.
However the Tribunal recorded that at the Departmental interview and again at the Tribunal hearing, the applicant stated that when his house was taken away, his brother was beaten to death. The applicant also told the Department that he was himself beaten up and went to hospital.
The Tribunal found that the applicant’s evidence in relation to what happened in China had “continued to change in significant ways”. It stated (at [39] of the Tribunal’s decision record):
… The account that the applicant gave in his original statement differed to that of his second statement as well as his statements to the Department and the Tribunal, that is in his original [written] statement he stated his father died as a result of the local government confiscating their property, however in his subsequent statement he did not state this and when he was interviewed by the Department and again by the Tribunal he stated it was his brother who had died as a result of the government confiscating their property. In addition, in his second statement he stated that his wife had been hurt and sent to hospital as a result of the alleged confiscation and although the applicant was hurt, it was not serious, however when interviewed by the department he stated that he was injured and beaten up and went to hospital. When this was put to the applicant at the hearing, he stated that the only difference between the two written statements was that his first statement used a fake name, he did not have a formal education, it was hard for him to express himself, he did mention his brother’s death to the agent and that sometimes when the agent interpreted the statement back to him he could not understand the full meaning of what she had said.
The Tribunal did not accept this explanation. It referred to the fact when initially asked at the Tribunal hearing, the applicant had said that his migration agent had read his original statement back to him, that it was correct and that he did not wish to add anything and that the only difference between his two written statements was that the first one used his fake name. The Tribunal found the second statement did contain additional material in that it claimed that his wife had been hurt and hospitalised, and that although he was hurt it was not serious. The Tribunal also found that when he was interviewed by the Department the applicant had stated he was injured and beaten up and that he went to hospital.
The Tribunal was of the view that these discrepancies in the applicant’s evidence about “who died and who was injured” were “not minor” and that they would not have occurred if he was in fact telling the truth, regardless of his education. This led the Tribunal to find that the applicant was not a reliable witness. It therefore did not believe his claims about what he said had occurred in November 2008 in China.
The Tribunal stated that in reaching this conclusion it had considered the photographs of demolished houses that the applicant had submitted in support of his protection visa application. However it found that given these photographs could have been taken anywhere, it did not place any weight on them.
The Tribunal also considered the death certificate for the applicant’s brother that had been given to the Department. However it did not place weight on this document, finding that the applicant had never mentioned that his brother had died in any of his written statements and having regard to country information, suggesting that just about any document could be forged in China.
The Tribunal found that it did not accept that the applicant had taken any action as a result of the alleged events that would have brought him to the attention of the authorities, or that he would so in the future.
The Tribunal also addressed the applicant’s claims that a cousin who was said to have looked after the family and asked the government to help his family members had died because of these events in November 2010. Based on its earlier findings the Tribunal did not accept that the applicant’s cousin had taken any action as a result of the alleged events or that he had subsequently died as a result.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason should he return to China either now or in the reasonably foreseeable future. Therefore, it affirmed the decision of the delegate.
The applicant sought review by way of an application filed in this court on 8 April 2011. There are two grounds in the application that are elaborated on in the affidavit accompanying the application. The applicant also made oral submissions today.
First, it is convenient to consider the grounds in the application as elaborated on in the affidavit. The applicant did not file written submissions.
The first ground in the application is that the application was not “assessed according to [the applicant’s] individual’s particularities” (sic). The applicant claimed that during the whole interview time (and this is clearly a reference to the Tribunal hearings of 22 February 2011 and 17 March 2011) “… I have been asked to talk by myself. I’ve explained to the Member that I wasn’t well educated, and I preferred her to ask me questions and I would give her answers. In the two interviews she always asked me to initiate the talking while I didn’t understand how to talk and what she was expecting from me”.
In the accompanying affidavit the applicant contended that his application had not been “assessed fairly”. He claimed that the Tribunal did not have regard to his “poor education background situation”, although he had pointed this out to her at the beginning of the hearings. He claimed the Tribunal member failed to “put any special notice” on this and “insisted to conduct the [hearings] by her own way”. He claimed that he was so “stressful” in that situation that he could not give “one single sentence during the whole interview”.
In oral submissions today the applicant reiterated that he would have preferred that the Tribunal ask him questions at the hearings that he could answer instead of asking him to tell his story himself. He suggested that he liked to answer questions because he was illiterate and that he did not know how to tell the story and would rather have the story to tell from his statements. He contended that perhaps the Tribunal did not fully understand what he meant to say because he was not able to say a complete sentence because it was hard for him because of his lack of education and that he might not have been able to present himself sufficiently well.
These claims do not establish jurisdictional error. Insofar as it is intended to contend that the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) (the Act) such a claim is not made out.
The only evidence before the court of what occurred in the Tribunal hearing with which is the applicant takes issue is the Tribunal reasons for decision. There is nothing in the evidence before the court to suggest that the manner in which the hearing was conducted was such as to establish that the applicant was denied a proper opportunity to give evidence or present arguments at the hearing or that he did not have the real and meaningful opportunity required under s.425 (see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41).
It is apparent from the Tribunal’s account of what occurred in the Tribunal hearings that the applicant was given the requisite opportunity to put his claims and evidence to the Tribunal and to address dispositive issues.
Insofar as the applicant appears to express a preference for putting his case in writing, notwithstanding his claimed illiteracy, it is important to note that there were written statements from him before the Tribunal that he had made in connection with his initial application and thereafter and also supporting information provided through his migration agent.
It is apparent that the Tribunal asked the applicant to recount what happened to him in China and then asked him a series of questions about the evidence he had given. It was in that context that the Tribunal recorded the applicant’s initial summary of his claims and, in particular, his statement as to why he could not go back to China. He claimed, among other things, that his brother had been beaten and hospitalised and that he had been detained for more than 10 days.
According to the Tribunal’s account of the hearings, the applicant appears to have understood the Tribunal questions about his initial application. He gave an explanation for what he said were the differences between his first application and his modified application.
The Tribunal did record that the applicant asked if the Tribunal could ask questions instead of the applicant telling the story himself, because he was not good at these things. The Tribunal considered this request. Its response, according to its reasons for decision, was that it understood that he was telling the Tribunal what happened from his memory.
As the first respondent submitted, the applicant provided what, on the Tribunal reasons for decision, can only be described as rational and coherent answers to its questions.
Moreover the Tribunal specifically put to the applicant issues of concern about aspects of his evidence, in particular, inconsistencies. It also put to him issues that arose out of the explanations that he provided to the Tribunal for such inconsistencies.
In addition, the Tribunal recorded that it put certain information to the applicant pursuant to s.424AA of the Act, in particular, what he told the Department at his interview about his brother dying, in contrast to what he had said in written statements. The Tribunal recorded the applicant’s explanations for these discrepancies.
The Tribunal held a further hearing in March 2011 where it put further information to the applicant, in particular country information, about the ability to obtain fraudulent documents in China. He responded.
Moreover, it is apparent that in its reasons for decision the Tribunal specifically considered the applicant’s claims that the discrepancies in his evidence were due to his poor language skills and education.
In relation to his claims that he had not been able to express himself and that he had mentioned his brother’s death to the agent (in response to it being put to him that it was not in his written statements), the Tribunal did not accept this explanation because when initially asked at the hearing the applicant had said his written statement had been read back to him, that it was correct and that he did not want to add anything, except to refer to the changed name.
The Tribunal also considered but did not accept that the applicant’s education was an explanation for significant discrepancies about who died and who was injured.
It has not been established that the Tribunal failed to accord the applicant a meaningful opportunity to give evidence and address issues at the Tribunal hearing. It was open to the Tribunal to invite the applicant to describe his account of why he feared returning to China and events in China. It was not obliged to limit itself to asking a series of specific questions as the applicant appears to suggest.
While the applicant claims that he did not understand how to talk and what was expected of him, it is apparent from the Tribunal’s reasons for decision that he gave a coherent narrative. The difficulty for the applicant is that this did not overcome, but indeed only added to, inconsistencies in his claims about what had occurred, in particular who had been injured and who had died.
It is well-established that it is for an applicant to put his case before a Tribunal and there was nothing in the circumstances of this case to give rise to any obligation on the Tribunal to carry out an inquiry insofar as that may be intended to be suggested.
It has not been established that any jurisdictional error is established on the basis contended for in ground one of the application or paragraph one of the accompanying affidavit.
The second ground in the application is that “[the Tribunal] didn’t assess [the] application carefully. At first interview from the questions she asked me I understood that she wasn’t clear about my application”.
In his affidavit the applicant suggested that the Tribunal had not read his two separate statements clearly and that she was had confused and confused him.
There is nothing in the material before the court to support any contention that the Tribunal misunderstood or failed to consider any aspect of the applicant’s claims, let alone that it did so in some way that constituted jurisdictional error.
It is clear that the Tribunal gave careful consideration to the applicant’s application and statements. It afforded the applicant an opportunity to present his claim at two separate hearings. The applicant confirmed to the Tribunal that while his agent prepared his written statements they were read back to him and they were correct, apart from the identity issue.
In its Findings and Reasons the Tribunal recounted the applicant’s written claims and his oral evidence. The applicant has not sought in these proceedings to suggest any inaccuracy in the Tribunal’s account of the evidence that he gave at the hearing.
The Tribunal also recorded the issues it raised with the applicant, including the fact that it put material to him under s.424AA of the Act and, more generally, put to him the weaknesses it perceived in his evidence. It gave him the opportunity to comment.
In his affidavit the applicant contended that the Tribunal member had confused him by pointing out that he was “lying because she hadn’t read my two separate statements clearly.”
The fact that the Tribunal asked questions about the two written statements is not such as to establish confusion or misapprehension on the part of the Tribunal. Rather, the Tribunal was clearly probing and seeking an explanation for discrepancies in the claims made in those two accounts.
In addition, in his affidavit the applicant claimed, apparently for the first time, that he was confused and frustrated and could not explain himself to the Tribunal clearly as his language skill was not good, that his mother tongue was Fuqing dialect and that although he “could speak fluent Mandarin”, he sometimes struggled to find the right Mandarin which he could “speak easily” in Fuqing.
I note that in all the documents lodged prior to the Tribunal hearing, including his Protection Visa Application, the Tribunal application and the response to hearing invitation form, the applicant specified that he sought a Mandarin interpreter. In his protection visa application form he referred generally to speaking, reading and writing in Chinese.
There is nothing in the Tribunal reasons for decision (and no suggestion by the applicant) to indicate that he raised with the Tribunal any concern about his understanding of the interpreter or his ability to express himself based on language difficulties. Nor is there anything to suggest that he did not have the opportunity to do so. The Tribunal held two hearings. Moreover even though the applicant said he might not be able to find the right Mandarin word, his evidence is also that he speaks fluent Mandarin.
The applicant has not pointed to any specific issues or difficulties said to have arisen as a result of these claimed language difficulties in the Tribunal hearings, other than a general suggestion that he could not explain things clearly.
On the material before the court such generally expressed contentions do not establish jurisdictional error. It has not been established that there were any inadequacies of interpretation or that any difficulties on the applicant’s part meant that he was not able to have the meaningful opportunity to give evidence and make submissions required by s.425 of the Act.
Ground two in the application, and the issues raised in the second paragraph of the affidavit, do not establish jurisdictional error.
In oral submissions the applicant reiterated that he would have preferred that the Tribunal ask him questions because he was illiterate and had a poor education.
The link between illiteracy and a preference for the Tribunal to ask questions is not entirely clear. The applicant was not asked to read or write by the Tribunal, but rather to provide an account of events which he claimed had occurred in China. The fact that the Tribunal initially proceeded in that way is not indicative of jurisdictional error. I note the Tribunal did go on to ask some specific questions and to raise issues of concern with the applicant.
The applicant also took issue with the fact that the Tribunal had given no weight to the documents that he submitted. He confirmed that the documents to which he referred were the death certificate for his brother and the photographs of demolished houses provided to the Department in support of his application.
However, the Tribunal findings in relation to the weight to be given to such material were findings that were open to it on the material before it. In relation to the death certificate, the Tribunal’s finding was based on a combination of the ease of obtaining forged documents in China and the fact that the applicant had not mentioned that his brother had died in any of his written statements. In relation to the photographs of demolished houses, the Tribunal took into account the fact that such photographs could have been taken anywhere. The Tribunal findings in this respect have not been shown to be unreasonable in a manner constituting jurisdictional error, or otherwise such as to be indicative of jurisdictional error.
The applicant also claimed that the Tribunal did not understand his claims. To a large extent this concern has been addressed in relation to the grounds he raised in his application. He did not point to any particular aspect of his claims which had been misunderstood by the Tribunal and it is not apparent that the Tribunal failed to consider or address any aspect of his claims. The fact that the Tribunal did not accept the applicant’s claims does not establish that it failed to understand the claims that were made.
No jurisdictional error has been established on any of the bases contended for by the applicant.
I note, finally, that the applicant also told the court that he would prefer to proceed by way of the court asking him questions which he could answer, because he was illiterate. I explained the role of the court and gave him several opportunities to explain his concerns with the Tribunal’s reasons and decision. He did so and, as set out above, raised a number of matters in oral submissions. Nothing that he said is such as to establish jurisdictional error. Nor is this a case in which there is anything in the material before the court to give rise to any suggestion of jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The fact that he claims that he has no money now, a claim that is common to persons in his situation, is not a reason for departing from such principle, although it may be a matter to be taken into account by the Minister in determining when and how to recover costs.
Having regard to the nature of this and other similar matters I am of the view that this is a more straightforward matter and is not such as to warrant an award of costs in the vicinity of the amount provided for in the Federal Magistrates Court Rules2001 (Cth) as was initially contended. An appropriate amount, accepting what I am told from the bar table about the difficulties of sending mail to the applicant because of an incomplete address, is the sum of $4,600.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 22 July 2011
0
2
1