SZQQX v Minister for Immigration

Case •

[2011] FMCA 970

•

6 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQX v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 970
MIGRATION – Review of decision of the Refugee Review Tribunal – no  jurisdiction to review primary decision – findings of credibility are for the Tribunal to make – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.36, 65, 476
Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294
Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Perera v Minister for Immigration [1999] FCA 507; (1999) 92 FCR 6
SZGSI v Minister for Immigration and Citizenship [2009] FCA 200
SZJZS v Minister for Immigration & Citizenship [2008] FCA 789
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SJSBv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Re Minister for Immigration & Multicultural Affairs; ex parteDurairajasingham [2000] HCA 1; (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Applicant: SZQQX
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2117 of 2011
Judgment of: Nicholls FM
Hearing date: 6 December 2011
Date of Last Submission: 6 December 2011
Delivered at: Sydney
Delivered on: 6 December 2011

REPRESENTATION

The Applicant: In Person
Appearing for the Respondents: Ms L Weston
Solicitors for the Respondents: Minter Ellison

ORDERS

  1. The application made on 20 September 2011 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2117 of 2011

SZQQX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. This is an application made on 20 September 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 August 2011, which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse the grant of a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on a visitor visa on 2 February 2011, and applied for a protection visa on 10 March 2011 (see Court Book – “CB” – CB 1 to CB 33 with annexures). He was assisted in this application by a registered migration agent (CB 23, CB 31 to CB 33).

Claims to Protection

  1. The applicant’s claims to protection are set out in a “Personal Statement” annexed to his protection visa application (at CB 29 to CB 30).

  2. The applicant claims to have been detained and tortured by the Chinese government “for covering up for Falun Gong practitioners”.

  3. In February 2009 a man came to his village to propagate Falun Gong. Within three months he had formed a Falun Gong group. While the applicant was not a Falun Gong believer, he “started to stand on the side” of the Falun Gong practitioners. The existence of the group was reported to police and more than 10 practitioners were arrested on 5 September 2010. While most were released after paying fines or being detained for a short time, the propagator was sentenced to three years in prison. Another man, who was found to have “lots of materials”, was sentenced to one year in prison.

  4. On 10 September 2010 another practitioner came to the applicant’s home hoping to hide as he was wanted by police. The applicant agreed to this. The police found out and went to his home on 1 October 2010 to arrest this man. The applicant tried to prevent his being taken by police, but was unsuccessful. The applicant also claimed that he was taken with this man to the Nanmeng Town Police Station, where he was detained for one month and fined. The practitioner was sentenced to one year in prison. The applicant claims that, while detained, he was “brainwashed”. After his release he was required to report every fortnight to the police, was followed, and was “heavily harassed”. He therefore decided to “run away to Australia”.

The Delegate

  1. The delegate found the applicant to be an unsatisfactory witness whose testimony was said to be “vague, generally lacking in circumstantial detail, and significant parts of his testimony at interview seemed implausible”. He found the testimony to be “exaggerated, omitted or fabricated” in order to enhance the application (CB 60).

  2. In the circumstances of the applicant’s previous travel to South Africa, the delegate was not satisfied that the applicant was a farmer, or that he was truthful about his previous international travel (CB 61).

  3. The delegate found the applicant’s account of Falun Gong in his village to be implausible (CB 61, CB 63). As a result, the delegate was not satisfied that the applicant had hidden a Falun Gong practitioner, leading to his arrest (CB 63). The delegate also noted dissatisfaction with other aspects of the applicant’s claims.

  4. The delegate noted that the applicant was able to apply for a visa and depart China using his own passport, indicating that he was not of interest to the Chinese authorities (CB 63). The delegate was not satisfied that there was any evidence indicating that the applicant would be of such interest to the authorities if he were to return (CB 65).

  5. The delegate found that the applicant was not someone to whom Australia owed protection obligations, and refused the grant of a protection visa (CB 65).

The Tribunal

  1. The applicant applied to the Tribunal, on 26 May 2011, for a review of the delegate’s decision (CB 69 to CB 72). His application indicated that at that time he was no longer assisted by a migration agent (CB 70), however he did appoint an agent prior to the Tribunal hearing (CB 90).

  2. The applicant was invited to attend, and attended, a hearing before the Tribunal on 18 July 2011 (CB 82 and CB 91). By letter dated 20 July 2011, the applicant was invited to comment on, or respond to, information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision of the delegate (CB 104). No response was received to this letter ([53] at CB 121).

  3. The Tribunal did not accept any of the applicant’s claims. It found him not to be a credible witness, found him to have difficulty explaining his actions and motivations, and to be evasive of the Tribunal’s questions ([59] at CB 123). It found his evidence about his travel to South Africa inconsistent, and did not accept the applicant’s explanation for this inconsistency ([61] at CB 124). The Tribunal considered that the applicant’s fabrication of evidence in relation to this travel “raises serious doubts” that the applicant had been otherwise truthful about his personal circumstances and his claims to fear harm in China ([61] at CB 124).

  4. The Tribunal also found the applicant’s claims relating to Falun Gong in his village to be “highly lacking in credibility” and found the applicant to be evasive in discussing this issue at the hearing ([62] to [64] at CB 124 to CB 125). Similarly, claims to have harboured a Falun Gong practitioner were dismissed as highly lacking in credibility ([65] at CB 125 to CB 126).

  5. Ultimately, the Tribunal concluded that the applicant had manufactured his claims to fear harm in China to “provide a basis for refugee status in Australia” ([66] at CB 126). It did not accept that there was a real chance the applicant would suffer harm if he were to return to China ([66] at CB 126, [68] at CB 127). It was not satisfied that the applicant was a person to whom Australia owed any protection obligations ([69] at CB 127) and therefore affirmed the decision of the delegate not to grant the protection visa ([70] at CB 127).

Application to the Court

  1. The grounds of the application are in the following, unparticularised, terms:

    “1. The interpreter did not translate properly on the interview day at DIAC, such as the size of the farm land and income

    2. RRT distracted me to ask questions which is not relevant to my application.eg: the numer of Falungong practitioners

    3. RRT doubted my criditability because I cannot remember details of travel to America.It doesn’t related my application”

    [Errors in the original.]

Before the Court

  1. Before the Court the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms L Weston appeared for the first respondent. The Court was also assisted by written submissions filed on behalf of the first respondent.

  2. In addition, read into evidence was the affidavit of Laura Frances Weston, solicitor, made on 6 December 2011, which explained the omission from the Court Book of the second and third pages of the Tribunal’s letter sent to the applicant, dated 20 July 2011. I took those two pages into evidence and marked them as “Supplementary Court Book pages 1 and 2”.

  3. It is quite clear that the applicant failed to understand the extent of the task that he was faced with before the Court today. As I sought to explain to the applicant, the only way that the Court could assist him in his stated desire to have his matter sent back to the Tribunal for reconsideration is if the Court were able to find some legal mistake in what the Tribunal had done.

  4. Unfortunately for the applicant, his submissions really amounted to the following:

    1)He complained that the Tribunal and the delegate rejected his application because of his travel to the United States of America (“USA”), which he said had nothing to do with his matter.

    2)That the Tribunal should not have taken into account the matter of his travel and should have focused on his particular claims to fear harm relating to events in China.

    In effect, the applicant said nothing more than what is set out in ground three of his application to the Court, that the Tribunal doubted his credibility because he could not remember travel details to the United States.

  5. The applicant told the Court that he had been assisted in the preparation of his application to the Court, and in his oral submissions, by his migration agent. It is quite clear, based on what the applicant told the Court today, that the agent has either misunderstood or has misrepresented to the applicant the extent and nature of the Tribunal’s adverse findings against him. While it is the case that the applicant’s travel, and intended travel, overseas was a part of the Tribunal’s analysis, it was only a part, and not the only reason that the application was refused.

  6. As to the relevance of this issue to the Tribunal’s reasoning, I will return to that when I come to deal with each of the applicant’s grounds. I should also note that the applicant confirmed that he had consulted the lawyer on the panel of the “RRT Legal Advice Scheme” who had been assigned to provide advice to the applicant. That the applicant chose to proceed today, and indeed to proceed with pressing his case based on what his migration agent told him, is a matter for the applicant. The Court is satisfied that the applicant at least had the opportunity of obtaining proper legal advice in this matter.

Consideration

Ground One

  1. Ground one complains that the interpreter at the interview with the Minister’s delegate did not translate properly. No explanation has been provided. The short, and complete, answer to the applicant’s ground for the purposes of these proceedings is that the Court has no jurisdiction to review the delegate’s decision.

  2. The delegate’s decision is a “primary” decision, as that term is understood, within s.476(4) of the Act. That is, that not only was that decision reviewable under Pt.7 of the Act, it was in fact reviewed by the Tribunal. With reference therefore to s.476(2)(a) of the Act, this Court has no jurisdiction to review the delegate’s decision.

  3. No complaint was made to the Court about the translation or the interpretation at the Tribunal hearing. That is sufficient to say that ground one is not made out.

  4. But as the Minister’s written submissions state, even if the Court did have jurisdiction, there is no evidence before the Court on the material before it, nor has the applicant provided any such evidence, to support the factual basis of the complaint. There is nothing in the delegate’s record, nor in the Tribunal’s recounting of it, to support this allegation.

  5. Even if there had been, the Minister argues that relevant authority supports the proposition that any such error would have been “cured” by the Tribunal’s decision, a decision which remains untainted by jurisdictional error in this or in any other regard (Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294 at [14] to [21] per Wilcox J (not affected by appeals). See also Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92] to [96] per Gyles J, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261 and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314).

  6. But what is also the case is that ultimately the applicant has not explained how any alleged misinterpretations amounted to jurisdictional error in the delegate’s decision, such that they needed to be “cured” by any Tribunal decision. I note here that the relevant authorities provide that the obligation on any decision-maker is to provide an adequate level of interpretation, not a perfect one (Perera v Minister for Immigration [1999] FCA 507, (1999) 92 FCR 6, SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 at [28], SZJZSv Minister for Immigration & Citizenship [2008] FCA 789 at [33]). Nor has the applicant explained how any failure to translate properly at the delegate’s interview led to any jurisdictional error by the Tribunal.

  7. If this is some attempt by the applicant, or his agent, to explain some of the inconsistencies in his accounts before the delegate and the Tribunal, as found by the Tribunal, then the lack of any relevant evidence would defeat this claim before the Court.

  8. In all, ground one is not made out.

Ground Two

  1. Ground two asserts that the applicant was distracted at the Tribunal hearing because the Tribunal asked questions which were irrelevant to his application. The complaint is explained to the extent of saying that, for example, he was asked questions about the number of Falun Gong practitioners in his group.

  2. Again, as the Minister submits, the only evidence before the Court of what occurred at the Tribunal hearing is the account contained in the Tribunal’s own decision record. In the absence of evidence to the contrary, it is not open to this Court to make inferences or assumptions as to what may be said to have otherwise happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). Based on the evidence before the Court, I cannot see that the complaint can be made out.

  3. In part, the complaint misunderstands the task statutorily set for the Tribunal. It is for the applicant to put forward his claims and evidence, so that the Tribunal may reach a requisite level of satisfaction such that the visa applied for must be granted (s.65 of the Act; SJSBv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1).

  4. Further, proceedings before the Tribunal, as has often been said, are not adversarial but inquisitorial. It is therefore for the Tribunal to ask the questions required such that it may reach the necessary and requisite level of satisfaction.

  5. In the current circumstances the applicant applied for a protection visa. Amongst other matters, but critically, this meant the Tribunal needed to be satisfied that the applicant met the definition of “refugee” as set out in the Convention Relating to the Status of Refugees (s.36(2) of the Act and Art.1A(2) of the Refugees Convention).[1] The applicant’s claims to protection, given in support of the application for recognition as a refugee, were that he had come to the adverse attention of the Chinese authorities because he had assisted and harboured a person who had attained some profile in his village as a Falun Gong organiser.

    [1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).

  6. In support of the claim, the applicant gave to both the delegate and the Tribunal factual accounts of what he relevantly said had occurred in China. It was clear that in his accounts the applicant claimed to be sympathetic to the plight of Falun Gong practitioners in his village and what he said were the abuses of their human rights by the Chinese authorities.

  7. I agree with the Minister that in these circumstances it was appropriate for the Tribunal to question, amongst other matters, the disposition, scope and character of those for whom he said he had such regard that he was willing to put himself at risk with the Chinese authorities.

  8. It would be difficult in any event for the applicant to establish jurisdictional error simply on the basis that the Tribunal asked questions at the hearing which he now says were irrelevant. While the taking into account of an irrelevant consideration may well lead to such error, there is a distinction to be drawn between the Tribunal relying on an irrelevant consideration in the formulation of its analysis and in the reaching of a conclusion, and the asking of questions at the hearing which may ultimately be of no use or relevance to its task.

  9. I agree with the Minister that, in any event, the circumstances of this case, where the credibility of the applicant’s entire factual account was at issue, as indeed was found initially by the delegate, the Tribunal was required to test the evidence presented, “often rigorously”. See Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [30]:

    “… the need to ensure that the person  who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.”

  10. To the extent also that the applicant complains that he was distracted by the Tribunal’s questions, and that the Tribunal’s focus on irrelevant questions reveals some apprehension of bias on its part, that suggestion must be rejected.

  11. The Tribunal, in the circumstances, was entitled to test the applicant’s evidence about the situation of Falun Gong practitioners in his village, the very practitioners for whom he said he had such regard and concern, and in relation to the protection that he sought to offer to one of their organisers. No error is revealed by ground two.

Ground Three

  1. The third ground complains that the Tribunal doubted the applicant’s credibility because he could not remember details of his trip to the USA, but that this matter did not relate to his application. The applicant pressed this point before the Court today.

  1. As a preliminary point, what must be noted is that the Tribunal made no finding about the applicant’s trip to the USA. Amongst many other matters, the matter referred to by the Tribunal at the hearing was that the applicant had confirmed that he had made an application to travel to the USA in September 2010.  He was also questioned, as was his friend, about the trip to South Africa in May to July 2008 and as to how he could afford such travel given his evidence as to his financial circumstances.

  2. Notwithstanding that the Tribunal referred to the application for travel to the USA at the hearing, it did not rely on any relevant finding as to that application in finding adversely to the applicant’s credit.

  3. It is not necessary for the purposes of this judgment to go into great detail as to each and every factor that led to the Tribunal’s conclusion that the applicant was not a witness of truth. It is sufficient to say that the Tribunal, as had the delegate before it, comprehensively rejected the factual basis of the applicant’s claims as to events in China.

  4. As I said earlier, in fact, it did not accept any of his claims to fear persecutory harm in China. As I put to the applicant earlier, findings of fact, including findings of credibility, are for the Tribunal to make in the exercise of its jurisdiction (Re Minister for Immigration & Multicultural Affairs; ex parteDurairajasingham [2000] HCA 1; (2000) 168 ALR 407).

  5. In this regard, the Tribunal’s findings to support its ultimate conclusion were all reasonably open to it on what was before it. The Tribunal gave cogent and comprehensive reasons. No legal error is revealed in these circumstances (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).

  6. Nor, with the High Court’s judgment in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 in mind, should the Tribunal’s conclusion have come as any surprise to the applicant following the delegate’s decision and the Tribunal’s questioning at the hearing. The applicant would have been squarely on notice that his entire factual account was at issue. Ground three is not made out.

Conclusion

  1. It is the case that for the applicant to succeed before the Court, the Court would need to discern jurisdictional error in the Tribunal’s decision. No such error is evident. The application to the Court therefore, should be dismissed. I will make an order accordingly.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  10 February 2012


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