SZQMQ v Minister for Immigration - [2011] FMCA 1002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQMQ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 1002

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 425

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
R v Tran [1994] 2 SCR 951
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171

Applicant:

SZQMQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1656 of 2011

Judgment of:

Barnes FM

Hearing date:

28 November 2011

Delivered at:

Sydney

Delivered on:

28 November 2011

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1656 of 2011

SZQMQ

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 2 July 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant sought review by application filed in this court on 2 August 2011 which contains three general and unparticularised grounds. He did not file written submissions. However, he was given and took the opportunity to make oral submissions today. I have considered the matters raised both in his application and in his oral submissions.
The applicant arrived in Australia as the holder of a Subclass 572 Student Dependent visa, which was valid until April 2010. His wife held a student visa. She departed Australia in or about November 2009. The applicant lodged his application for a protection visa after he was detained in March 2011. In a statement accompanying his protection visa application he elaborated on his claims. He further elaborated on those claims at the Tribunal hearing. He provided supporting documentation both to the Department and to the Tribunal, to which I will return.
The applicant attended a Tribunal hearing. The only evidence of what occurred in the Tribunal hearing is the Tribunal’s reasons for decision. After the Tribunal hearing the Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act 1958 (Cth) (the Act). The applicant responded.
In its reasons for decision, the Tribunal summarised the applicant’s claims that “in October 2009, he was told by his father that the local government intended to demolish some houses…including a property” owned by the applicant and that the “government intended to pay compensation”. He claimed that as the owners needed to agree, his “wife returned to China to deal with these matters” and also to consult with Chinese doctors about an illness. The applicant claimed his wife had “intended to return to Australia and finish her studies later”. She did not do so.
He claimed that his wife “discussed compensation with the government” in November and December 2009, “but the amount offered was too low and she refused to sign the compensation agreement”. He claimed that a notice of demolition was issued in January 2010 and that in March 2010 “the electricity, water and heating was stopped and the…tenants moved out”.
He claimed that his “wife appealed and complained in writing and in person”, and that when she “tried to organise a protest” after the demolition began in April 2010 she was arrested and detained, but released after a payment was made. He claimed that she continued to protest and was again detained in January 2011 and that she remained in detention at the time of the Tribunal review. The applicant claimed that the local Public Security Bureau in the relevant part of China had issued a notice of summons in January 2011 asking him “to attend for interrogation”.
The applicant provided a number of supporting documents in relation to these claims, including a registration of property certificate, a notice of the building demolition, a document said to be a detention warrant for the applicant’s wife for a period of three months, a document said to be a summons to the applicant requiring him to attend the PSB on 24 March 2011, a notification of bail bond payment in relation to his wife, a receipt for a guarantee deposit paid by the wife, and a card said to be from a lawyer who gave legal advice to the wife, but declined to act for her. He also provided a number of documents relating to his wife’s studies in Australia.
The Tribunal recorded that the applicant also claimed that he “took part in family groups”, was an underground Christian in China, and had been attending Christian churches in Australia. However his evidence to the Tribunal was that he was “not claiming protection on the basis of his Christianity”.
In its findings and reasons the Tribunal found that it was not satisfied that the applicant was a person to whom Australia had protection obligations. It did “not accept that the applicant’s wife ha[d] protested about the inadequate compensation offered in respect of a property that [had been] demolished”. Nor did it “accept that the applicant’s wife was detained”, that she remained in detention, or that on 24 January 2011 the PSB had “issued a notice of summons addressed to the applicant”.
The Tribunal gave a number of reasons for these findings. It referred first to the applicant’s claims that he had a close relationship with his wife, that he had been concerned about what had happened to her since she returned to China, and that he feared “returning to China because a summons ha[d] been issued in his name”. It observed, however, that the applicant had stayed in Australia unlawfully since his visa ceased in April 2010. It did not find his reasons for having done so to be credible. It had regard to the fact that the applicant came to Australia in March 2009 as his wife’s dependent spouse, that she left Australia in November 2009 and had never returned, and that while the applicant told the Tribunal that he had stayed in Australia “because after his wife was arrested the second time, the PSB issued a summons in his name requiring him to participate in an investigation”, the summons he had provided was dated 24 January 2011, but the applicant had already “remained in Australia for 14 months after his wife departed Australia in November 2009” by January 2011. In other words, the Tribunal had regard to the fact that a summons issued in January 2011 did not provide an explanation for the applicant remaining in Australia prior to that time. The Tribunal was of the view that if the applicant feared returning to China because of the summons issued in January 2011 this did not account for why he had not returned to China earlier after his visa ceased in April 2010.
It also had regard to the fact that the applicant had given different reasons for not returning to China in 2010. It found “that his explanations for [his failure] to return to China when his visa ceased ha[d] changed over time and [we]re not consistent”. The Tribunal set out the applicant’s varying evidence in that regard, including that he had initially “told the Department when he was located that he expected his wife to return to Australia to complete her studies, after she had medical treatment, and [had] made no mention of his wife protesting and having been detained”. However he told the Tribunal that he had feared returning in 2010 because “his wife told him not to return, as they [we]re suspected of having joined an overseas organisation”, that her future was “uncertain”, and that he could not get her out of China. He also “claimed that he had wanted to return when his wife was [first] arrested”, but that “she told him not to do so” as he could not help her, and “it would not be good for him”. However he also said “he did not return to China because he thought his wife would come back to Australia soon and so it was less trouble to wait for her and also, as his wife had been released, he did not need to go back”.
The Tribunal found the applicant’s explanations for why he did not return to China in 2010 were “inconsistent and not credible”. On the one hand he claimed his wife had been released from detention and intended to come to Australia so he waited for her, but on the other hand he said she was unable to come to Australia and that it would be dangerous for him to go to her in China.
The Tribunal also had regard to the fact that notwithstanding that the applicant’s own visa had not ceased at that time he had not provided a credible reason for why he did not return to China to assist his wife when she was detained in April 2010, despite his claim that he was close to her. If found that he was close to his wife, this casts serious doubt on his claim that she was detained in April 2010.
The Tribunal found the applicant’s failure either to return to China or to seek protection at the time his visa ceased led it not to be satisfied that the applicant’s wife was detained in April 2010 or that the applicant feared persecution.
It also had regard to the delay in the application for protection until after the applicant was located and delayed. It considered but did not accept the applicant’s explanations in that respect. In particular, the Tribunal did not accept that he would not have made inquiries about being able to remain in Australia before the expiry of a visa, having regard to his past use of the services of an agent and the possibility that he could have approached an agent or the Department regarding his options to stay in Australia lawfully.
The Tribunal did not accept that the applicant stayed in Australia for the reasons he claimed, but was of the view that, consistent with what he told the Department when he was located, the applicant had stayed in Australia because he had preferred to do so, not because he feared persecution if he returned to China.
The Tribunal did not find the applicant to be a witness of credit. It found that he had fabricated his claims that he would be persecuted if he returned to China because of his wife’s activities. It was supported in its finding by a letter which the applicant claimed his wife had written to the Mayor, having regard to the reference in that letter to the applicant having been laid off from his employment in China and being in Australia in order to care for their child, in circumstances where the child was never in Australia and the applicant came to Australia as a dependent on his wife’s student visa. It was of the view that the applicant had written this letter himself and that the misunderstanding of his status as reflected in his account to the Tribunal that he came on a guardian visa was also reflected in that letter. It acknowledged that it may be that the applicant was assisted to write the letter by people in Australia who did not understand his status when he came to Australia.
The Tribunal also found that it was not credible that the applicant’s wife, who was in China where the applicant said his child was located, would have written a letter stating that her child was in Australia. The Tribunal found that the applicant was not a witness of credit and did not accept that the letter he claimed was written by his wife to the Mayor was in fact written by her.
The Tribunal addressed the applicant’s written submission that the interpreter had “made many mistakes” at the Tribunal hearing, and examples he gave concerning the courses his wife was undertaking in Australia. However the Tribunal was of the view that these asserted errors were “minor and…not relevant to [its] findings regarding the applicant’s failure to return to China after his visa ceased”.
The Tribunal reiterated that it did not find the applicant to be a witness of credit, being of the view that in response to being located and detained after being here unlawfully for about 11 months, he had “fabricated his claims that his wife protested and was detained twice, and that he ha[d] been summoned”.
The Tribunal had regard to documentation provided by the applicant. It reiterated that it did not accept the letter the applicant claimed his wife wrote to the Mayor was written by her. It referred to country information indicating there was “widespread document fraud in China and that documents from China [we]re of little probative value”. Because of the evidence and the fact that the Tribunal found the applicant to be lacking in credibility, it did not accept that the documents the applicant had provided were authentic documents. It gave them no weight.
The Tribunal also addressed the applicant’s claims to have “attended a family church in China”, to “have witnessed the arrests of brothers and sisters from the church”, and to have attended church in Australia. However it had regard to his evidence that he was not claiming protection on the basis of Christianity. It accepted that the applicant was not persecuted when in China because of his religion and that he did not have a well-founded fear of persecution because of his religion if he returned to China.
The Tribunal concluded that it did not accept that the applicant had a well-founded fear of persecution for a Convention reason if he returned to China now or in the foreseeable future. It found that it was not satisfied that he was a person to whom Australia had protection obligations and affirmed the decision of the delegate.
The applicant sought judicial review by application filed on 2 August 2011. He filed a supporting affidavit which stated that he feared to go back to China. Such a claim seeks impermissible merits review. The first ground in the application is that, “The interpreter at RRT could not translate what i (sic) said properly, which misled the tribunal.” This is clearly a reference to the interpreter at the Tribunal hearing.
Section 425 of the Migration Act requires that an applicant be given an opportunity by the Tribunal to appear before it to give evidence and present arguments relating to the issues arising in relation to the decisions under review. Insofar as the applicant is contending that the standard of interpreting at the Tribunal hearing was so inadequate that he was prevented from giving evidence at the Tribunal, or not afforded a meaningful opportunity to participate in the hearing, such a claim is not made out on the evidence before the court.
I note first that there is no transcript, let alone evidence of the interpretation at the Tribunal hearing before the court. The applicant’s contentions in this respect appear to be based on what was put to him by the Tribunal in its post-hearing s.424A letter. That is consistent with his response to that letter, in which he complained about the interpreter on the basis that when he saw the Tribunal’s s.424A letter, he just knew that the interpreter made a lot of mistakes. This, of course, does not address the possibility that if there were mistakes, they were not the result of interpreter error.
In any event, the applicant took issue with the fact that in the Tribunal’s letter it had referred to a course undertaken by the applicant’s wife called ACEL, which the applicant stated to the Tribunal was correctly called ACL. He also took issue with the Tribunal’s account of his wife’s achievements when studying in a course in Melbourne, on the basis that he had said to the Tribunal at the hearing that when his wife studied in Melbourne she did four subjects, passed two subjects and failed two subjects. In his letter to the Tribunal he said that the Tribunal said that his evidence was that she still had two exams remaining. On this basis, the applicant had submitted to the Tribunal that he believed that the interpreter did not interpret his words correctly. The Tribunal addressed this submission of the applicant in its reasons for decision as set out above, proceeding on the basis that even if there were errors in relation to the course his wife was undertaking such errors were minor and were not relevant to its findings regarding the applicant’s failure to return to China after his visa ceased.
As stated in the often-cited case, Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [45] per Kenny J:
It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal.
The question is whether the material before the court is sufficient to make out a case that the interpretation before the Tribunal was so incompetent that the applicant was prevented from giving his evidence.
In Perera, after referring to overseas authorities in relation to the standard of interpretation, the her Honour went on to state at [45]:
The departure [from the standard of interpretation] must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision…
Similarly in R v Tran [1994] 2 SCR 951 (a decision of the Canadian Supreme Court referred to with approval in Perera) the court had held that in order to succeed the applicant had to show that the lapse of interpretation which occurred involved his vital interests and “was not merely in respect of some collateral or extrinsic matter” (see Perera at [45]).
In Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [22] the Full Court of the Federal Court considered a case in which it was acknowledged that there were some inaccuracies in the interpretation on the evidence before the court. Notwithstanding that it was accepted that there was an error in translation in one respect, Mansfield and Selway JJ had regard to the fact that there was no suggestion that the Tribunal had attached any significance to the issue in relation to which there was a mistranslation and found that the error was not such that the translation was “so inadequate that it could be said that the appellant was effectively prevented from giving evidence at the Tribunal hearing”, and nor could it be said “that the error that was identified was material to the conclusions reached by the Tribunal” (at [22]).
Whether there is inadequate interpretation is a question of fact and degree that involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole. In this case the only evidence before the court is the applicant’s assertion to the Tribunal in response to what he says are errors in the Tribunal’s s.424A letter.
The evidence is not such as to satisfy me that the interpretation at the hearing fell short of the required standard. Even if the purported inconsistencies relied on by the applicant are to be accepted as the result of interpreter error, as the Tribunal found such errors were not of significance or material to the claims made by the applicant or the Tribunal’s findings (see WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 at [66] and compare W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788), it has not been established that the asserted errors, even if made out, and even if attributable to interpreter error, were such as to constitute a jurisdictional error, whether consisting of a failure to comply with s.425 of the Act or otherwise.

Insofar as the applicant today asserted that there were other errors and appeared to take issue in oral submissions with whether his wife had studied in Melbourne or in Sydney, it has not been established that any factual error of Tribunal – if there was a factual error, and none was pointed to specifically – was in fact attributable to mistranslation by an interpreter. More generally, even if the Tribunal had made a factual error as to whether particular study by the wife was in Melbourne or in Sydney of itself that would not establish jurisdictional error. There is nothing in the evidence before the court to suggest that any such mistaken factual finding – if there was a mistake – was such as to constitute a jurisdictional error. More fundamentally there is no evidentiary basis for a finding that there were such errors in translation at the Tribunal hearing. The applicant was given but did not take the opportunity to put such evidence (whether in the form of a transcript of the Tribunal hearing or other affidavit evidence) before the court. Ground one is not made out.
The second ground in the application is that the Tribunal did not accept the applicant’s “explaination (sic) about the late protection visa application with preconception (sic). It is unfair”. Insofar as the applicant takes issue with the Tribunal’s factual findings – or its findings in relation to his credibility – it is well-established that findings of fact and credibility findings are matters for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). Without more it is not the role of this court to review the merits of the Tribunal’s factual findings.
The fact that the Tribunal did not accept the applicant’s explanation for the delay in lodging his protection visa application does not establish jurisdictional error. Its findings in that respect were open to it on the material before it for the reasons that it gave. The Tribunal addressed the explanations given by the applicant in that respect and gave reasons why it did not accept those explanations.
Insofar as this ground and the general contention “It is unfair” is intended to raise an allegation of actual or apprehended bias, neither actual nor apprehended bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 is apparent on the material before the court. Nor is there anything in the material before the court to suggest any failure by the Tribunal to raise dispositive issues with the applicant in the course of the Tribunal hearing. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. Ground two is not made out.
The third ground is that the Tribunal:
doubted [the applicant’s] evidences (sic) without check (sic) them carefully. If i go back i will be put into jail.
Insofar as this is to be taken as a contention that the Tribunal should have made inquiries, this is not a case in which it has been established that the Tribunal was under an obligation to inquire. The Tribunal is under no general duty to make inquiries, in particular, to inquire as to the authenticity of documents such as the documents said to be from China provided in this case. It has not been established that there was a failure by the Tribunal to make an obvious inquiry about a critical fact the existence of which was easily ascertained in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
In oral submissions today the applicant submitted that the Tribunal doubted his documents and refused his application on that basis alone. He made such submission in the course of suggesting that the Tribunal did not assess the application from the point of view of objective facts and made a decision based on subjective judgment.
First, the Tribunal did not simply make its decision on the basis of rejecting the applicant’s documentary evidence. Further, insofar as the applicant suggested that the Tribunal did not have regard to or did not accept documentary evidence about his wife’s study in Australia, the Tribunal did not base its decision on any concern about the documentation in relation to the applicant’s wife’s study in Australia.
Rather, as set out above, for reasons that it gave, the Tribunal did not accept that a letter which the applicant claimed was written by his wife to the Mayor in China was written by her, that the documents he had provided regarding his wife’s detention and bail and a summons were authentic documents having regard to widespread document fraud in China and because the applicant had been found to be lacking credibility. In those circumstances it gave such documents no weight.
The weight to be accorded to evidence is a matter for the Tribunal: See Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51. It has not been established that there was any jurisdictional error arising from the Tribunal’s decision to give those documents no weight in light of its finding that the applicant was not a credible witness and the independent country evidence about the widespread availability of fraudulent documents in China. See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49]. This ground not made out and insofar as the applicant contended that if he went back to China he would be put in gaol, he seeks impermissible merits review.
The applicant also contended that the Tribunal should have accepted that the documents about his wife’s study in Australia were genuine. The Tribunal did not take issue with the genuineness of any of the documents about the applicant’s wife’s study in Australia. Indeed it did not address the genuineness of such documents, although it set out the documents that had been provided. What was of concern to the Tribunal was not what the applicant’s wife had studied in Australia, but rather what occurred in China, the applicant’s reasons for why he stayed in Australia unlawfully after his visa ceased and why he did not return to China in 2010 after his wife allegedly was detained. The concerns that the applicant raises in this respect do not establish a jurisdictional error.
I note also generally, although it was not raised by the applicant, that there is nothing to suggest any failure by the Tribunal to comply with s.424A of the Act. Insofar as it may have put matters to the applicant which were not in fact subject to s.424A(1), a Tribunal does not fall into jurisdictional error by putting matters beyond those which it is obliged by s.424A to raise with the applicant.
Relevantly, the Tribunal did raise with the applicant his oral evidence to the Department and there is nothing to suggest any failure by the Tribunal to comply with s.424A. Furthermore, it is apparent from the Tribunal reasons for decision that it took into account the applicant’s responses to the issues that were raised insofar as they were relevant to the Tribunal findings and reasons.
More generally, the applicant suggested that the Tribunal made a subjective assessment. Insofar as this takes issue with the Tribunal’s factual findings, factual findings are a matter for the Tribunal. It is for the Tribunal to determine the merits of the applicant’s claim and to assess the evidence before it. It has not been established that the Tribunal fell into jurisdictional error insofar as it did not accept the credibility of the applicant’s claims about events that occurred in China.
The applicant also raised in concluding submissions an issue that was a little difficult to understand initially, but ultimately appeared to be a contention that his student dependent visa should not have expired or ceased at the time that it was said to have ceased, apparently because his wife had been able to defer an aspect of her study according to an education provider.
However, as I endeavoured to explain to the applicant, the decision before this court is the decision of the Refugee Review Tribunal in relation to his application for a protection visa. The issues that he raises in relation to his student visa are not matters that are before the court in these proceedings.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 15 December 2011