SZQEU v Minister for Immigration
[2011] FMCA 522
•6 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 522 |
| 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 the Tribunal was biased, failed to apply a relevant test correctly, provided inadequate interpreter services at its hearing and conducted a hearing which was too brief. |
| Migration Act 1958, ss.91R, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 |
| Applicant: | SZQEU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 871 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 July 2011 |
| Date of Last Submission: | 6 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 871 of 2011
| SZQEU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. She claims that when she returned to China from Australia in 2009, she did so with a Falun Gong publication which her then-husband had requested. She claims that, with the assistance of the local police, her husband later used the publication to pressure her into accepting a divorce. She claims to fear persecution in China by reason of her imputed involvement in Falun Gong. She also claims to fear that she could be killed by her former husband as well as to fear harm by reason that she might, in the future, reveal police corruption.
The applicant first arrived in Australia on 29 June 2007 as the holder of a Student Guardian Visa. She arrived in Australia most recently on 15 August 2010, following which she lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 20 December 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 4-9 of the Tribunal’s decision.
The applicant made the following claims in a statement accompanying her protection visa application:
a)she came to Australia in 2007 as a student guardian for her daughter. Whilst here, she met some Falun Gong practitioners in Darling Harbour and also came across a Falun Gong stall in Chinatown offering promotional materials;
b)when she returned to China in November 2008 she spoke to her husband about her observations of Falun Gong in Australia. He subsequently told her, prior to her next visit to Australia in March 2009, that his best friend’s mother wanted a copy of the “new verse” by Master Li Hongzhi as she was a Falun Gong believer;
c)in May 2009 she visited a Falun Gong stall in Chinatown and obtained a copy of the “new verse”. She returned to China in June 2009 and gave the document to her husband who reassured her that he would keep it a secret;
d)following her return to China she discovered that her husband was having an affair. On 25 June 2010 he told her that he wanted a divorce. When she refused, he warned her to accept the divorce or she would be sent to gaol;
e)on 30 June 2010 she was called to the local police station for a meeting with the police chief. He informed her that a case had been made against her for bringing anti-government Falun Gong material into China and that it would proceed to investigation, leading to her arrest, unless she accepted the divorce. She realised that the police chief had been bribed by her husband and that she had no choice but to accept the divorce;
f)her husband added to his demands by claiming ownership of their home in the divorce settlement. The police chief threatened her once again and told her that if she did not agree to her husband’s requests the case against her would proceed. As a result, she was forced to give up her property and to sell her supermarket; and
g)she feared that if she returned to China she would be arrested and sent to gaol because of her actions in bringing Falun Gong material into China.
At a hearing before the Tribunal on 17 March 2011 the applicant also claimed that she feared harm from her former husband because he “would not let her be free” and that, if she returned to China, either “she or he would die”. She claimed that her former husband and the police chief would also seek to put her in gaol as they were scared that she would disclose their corruption upon her return. She said that she would be put in gaol because of the Falun Gong book or she would die.
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:
a)while the Tribunal expressed some doubts as to the plausibility of the applicant’s claims it was, nevertheless, prepared to give her the benefit of the doubt and accepted that she did include a Falun Gong publication in her luggage when she returned to China in June 2009. It also accepted that she had been pressured into accepting a divorce and the transfer of her home to her former husband through the actions of a corrupt police officer, the police chief, who threatened her with prosecution over the Falun Gong publication if she refused;
b)the Tribunal did not consider credible the applicant’s claims that she would be sent to gaol because of her imputed involvement with Falun Gong or because the police chief was afraid that she would take some form of legal action to expose his corruption. The Tribunal noted in this connection that the applicant had complied with the demands of her former husband and the police chief and, consequently, there was no apparent reason why either of them would wish to pursue her with allegations or accusations of Falun Gong involvement. To the contrary, they had good reason to avoid doing so, in light of the obvious risk that it would give the applicant both an opportunity and a motive to expose their corrupt dealings;
c)the Tribunal noted that the applicant did not take any legal action to expose the corruption of the police chief or her former husband when she was in China previously and was therefore not satisfied that she would do so in the future; and
d)the Tribunal found it difficult to accept that the applicant’s former husband would wish to have any form of future relationship with her given the lengths to which he had gone to obtain a divorce and the fact that he had begun a family with another person. It was also difficult to accept that the applicant’s former husband would wish to harm her given that he had obtained everything that he wanted.
In the circumstances, the Tribunal was not satisfied that there was real chance that the applicant would suffer harm as an imputed Falun Gong practitioner or supporter or would be harmed by her former husband were she to return to China.
Proceedings in this Court
The applicant pleaded the following ground in her application commencing these proceedings:
1.My previous heartless husband bribed the police chief to frame up me in order to abandon me to marry a young girl and usurp my property. The Tribunal had bias against me and failed to consider my facts according to S91R of the Migration Act 1958, making jurisdictional errors.
At the hearing in this proceeding the applicant also alleged that the interpreter services provided at the Tribunal hearing were inadequate and, further, that the Tribunal hearing had been too short, saying that she left “without answering some of the questions”.
Ground 1
The first sentence of the allegation made in the application is not truly an allegation but is more in the nature of background information. As such, it provides no basis to consider setting the Tribunal’s decision aside.
The second sentence of the allegation alleges that the Tribunal was biased and failed to apply correctly certain statutory tests for determining whether the applicant met the criteria for the grant of a protection visa. Dealing first with the allegation of bias, in her evidence at the hearing in these proceedings, when asked to identify the bias in question the applicant said it was the fact that the member did not believe her. However, a finding on the facts which happens to be adverse to a party is not sufficient to prove bias as the applicant submits. More is needed to prove this but the applicant has failed to identify any basis, whether by reference to its decision or its conduct, which would support a conclusion that the Tribunal was biased. The only evidence relevant to this question is what appears in the Court Book, which is exhibit A, and, in particular, the Tribunal’s decision record. It might be noted at this point that the applicant has not suggested that the Tribunal’s decision record is inaccurate or incomplete in any way. Nothing in the Tribunal’s decision record suggests that the Tribunal had formed a view of the matter which was inflexible or immovable in the sense discussed in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 or that it had conducted itself in such a way that a reasonable person might apprehend that it might not have been bringing an impartial and unprejudiced mind to the review: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. I conclude that there is no basis to find that the Tribunal’s decision was tainted by bias, whether actual or apprehended.
Ground 2
The other element of the pleaded allegation is that the Tribunal failed to apply s.91R of the Act correctly. Relevantly, that section provides:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
However, before the Tribunal was required to consider these tests and whether the conduct the applicant alleged to fear would satisfy them, the Tribunal had to determine whether there was real chance that such conduct would occur. It found that there was not. The Tribunal concluded that the applicant’s claim that she would be gaoled because the police chief was afraid of her and because she would take some legal action to expose his corruption was not credible. Impliedly, it also did not accept her claims to fear harm at the hands of her former husband. In such circumstances the Tribunal was not required to consider whether s.91R(1) and (2) were satisfied and thus the second element of the second sentence of the pleaded allegation does not disclose error on the Tribunal’s part.
Ground 3
In her oral evidence at the hearing in this matter, and in her oral submissions, the applicant stated that the interpreter services provided at the Tribunal hearing on 17 March 2011 were inadequate. She said that the answers which she gave in Mandarin were expressed at a much different length when translated into English, that when the member paraphrased her answers back to her they were different to the answers she had given, that the Tribunal asked her questions which she had already answered and that the Tribunal member kept saying that he did not understand what she was saying and asked her to answer again and again. The applicant said that although she cannot speak English, she can understand some English and so she could tell the difference between her answers and what had been translated.
The applicant said that she complained to the Tribunal member about the interpreter services but the Tribunal’s decision record makes no reference to her making a complaint. However, as it was not put to the applicant that she was mistaken or untruthful in this evidence, I am left with a Tribunal decision which I am satisfied, as expressed earlier in these reasons, is not tainted by bias and the applicant’s oral evidence, which appears to contradict it. It is impossible to resolve the contradiction between the applicant’s evidence and what appears in the Tribunal’s decision record, particularly as the applicant has not challenged the accuracy of the Tribunal’s decision record in so many words.
I cannot resolve this contradiction but I do not need to because, for other reasons, I am not satisfied that the matters which the applicant has raised in support of her allegation that the interpreter services were inadequate make out that allegation. In particular, when asked in cross-examination for examples of poor translation, the applicant was unable to provide any.
The Tribunal’s decision record does not support a conclusion that the Tribunal member and the applicant were unable to communicate effectively. Indeed, every aspect of the Tribunal’s summary of its hearing suggests that communication between the member and the applicant was completely adequate. That summary discloses that the Tribunal member put many questions to the applicant and was plainly concerned to test the applicant’s evidence on matters which were of concern to it. The applicant’s submission that the interpreter services at the Tribunal hearing were poor appears to have been partly based on those questions of the Tribunal. However, to conclude that such questions evidence that the interpreter services at the Tribunal hearing were poor would be a misunderstanding of the role of the Tribunal and what the questions it posed represented.
Further, the fact that the Tribunal may have paraphrased some of the applicant’s answers in a way different to the one in which they were originally expressed by the applicant would appear to be no more than the Tribunal putting facts to the applicant in its own words in order to elucidate certain aspects of her evidence and to obtain evidence on other matters which may not have been addressed in the answers already given. Additionally, the fact that a passage translated from one language to another will be of different lengths in those languages is not a good basis to conclude that a translation is deficient.
Finally, I should observe that the Tribunal’s hearing record, as reproduced at p.92 of the Court Book, discloses that the interpreter employed by the Tribunal on 17 March 2011 was accredited to NAATI Level 3. In the absence of specific examples of bad translation, as were sought in cross-examination, the fact that the applicant may be able to understand English to some degree, and the degree to which she can understand English has not been demonstrated or explained, does not persuade me that a NAATI Level 3 interpreter was providing interpreter services which contained errors which were so material that they caused the decision-making process to miscarry or effectively prevented the applicant from giving her evidence: WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131.
For these reasons, I am not satisfied that the applicant has made out her allegation that the interpreter services provided at the Tribunal hearing were inadequate such that the Tribunal breached the obligations it owed her under s.425 of the Act and that jurisdictional error is disclosed thereby.
Ground 4
The second allegation which the applicant made in her oral submissions and in her evidence was that the hearing was too short and that she had not been able to say everything she wanted to say. In that regard, the applicant said that she had left the Tribunal hearing without answering certain questions. To the extent that the allegation is that the Tribunal hearing was too brief, the Tribunal’s hearing record referred to earlier discloses that the hearing in fact took nearly ninety minutes, commencing at 10.04am and finishing at 11.30am. In circumstances where the applicant’s allegations were quite straightforward, where she was the only witness and where there was little in the way of documentary material for the Tribunal to canvas at its hearing, I am not persuaded that the hearing conducted by the Tribunal was, as implied by the applicant, too brief.
To the extent that the applicant alleges that she was unable to answer questions, she said in her oral submissions that she was so angry, presumably at the end of the Tribunal hearing and apparently because the Tribunal member could not understand her, that she said that she did not want to stay and wanted to go. In her submissions she said that when the member asked her if she wanted to say anything she replied in the negative and left. If the applicant chose to decline the Tribunal’s invitation to put further material to it and instead decided to leave and say nothing further, that was a matter for her and does not reflect on the Tribunal. It does not disclose jurisdictional error.
Conclusion
As jurisdictional has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 25 July 2011
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