SZQTC v Minister for Immigration
[2012] FMCA 496
•22 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQTC v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 496 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to deal with all the claims made by the applicant and it breached s.425 by providing inadequate interpreter services at its hearing. |
| Migration Act 1958, ss.91R, 424A, 425, 474, 477 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZQTC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2320 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 June 2012 |
| Date of Last Submission: | 6 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The time for the commencement of these proceedings be extended to 13 October 2011.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2320 of 2011
| SZQTC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who arrived in Australia on a tourist visa on 14 September 2010. On 13 December 2010 the applicant lodged an application for a protection visa alleging that he feared persecution in China because of his Falun Gong practice. On 18 May 2011 his application was refused by a delegate of the first respondent (“Minister”). 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.
The applicant sought an extension of time within which to bring these proceedings. He alleged:
1.I did not know I have to lodge application within 35 days of the date of the migration decision.
2. I thought I can lodge application before my visa expired.
3. My visa expires on 17 October 2011.
Section 477 of the Migration Act 1958 (“Act”) provides the time limits which apply to proceedings for judicial review of decisions of the Tribunal in respect of which this Court has jurisdiction. It relevantly provides that an application to the Court in relation to a migration decision must be made within thirty-five days of the date of the migration decision although the Court may extend that period if an application has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary.
The Tribunal’s decision was dated 7 September 2011 so the applicant had until 12 October 2011 to commence these proceedings. However, the application was not filed until 13 October 2011 and was thus out of time by one day. In this case the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application specified why he said it was in the interests of the administration of justice for time to be extended. The initial criteria for the grant of an extension of time have therefore been satisfied.
The Minister did not oppose an extension of time being given to the applicant.
Given that the Minister did not oppose an extension of time and that the delay was only one day, I conclude that it is in the interests of the administration of justice that time be extended to 13 October 2011 and that the merits of the applicant’s application for judicial review be considered on a substantive basis rather than in the context of an application to extend time.
In proceedings for review of a Tribunal decision to affirm a delegate’s decision, the Court cannot rehear the applicant’s application for a visa. Its 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 of the 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 4-20 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement in support of his application:
a)he was introduced to Falun Gong in 1997 by his cousin. His cousin gave him a book by Master Li and he started practising and reading the book. Later, he practised in a park with other Falun Gong practitioners;
b)in July 1999 whilst practising in a park with four others, he was arrested and beaten by the police. He was taken to an education centre, the operation base of the “610 office” in Qingdao. He refused to plead guilty and as a result he was beaten and detained for three days. The director of the 610 office hit his head against a wall and tried to force him to plead guilty to practising Falun Gong;
c)he was transferred to the Qingdao labour camp where he was made to do heavy physical labour and endured abuse. After fracturing his foot, he was transferred to a hospital where his parents came to visit him. His parents gave more than RMB20,000 to the head of the labour camp and he was released in March 2001;
d)after he was released he lost his job and could not find another one. The police would visit his home asking for money and other valuables. As a result he moved to Jiaozhou, a nearby city;
e)he opened a small restaurant in Jiaozhou but the police found out about his past and began to attend his restaurant regularly to eat and drink for free. He had to pay them a monthly “management fee” of RMB1,000 whereas the neighbouring shop only paid RMB100;
f)in 2009 he returned to Qingdao and found that his wife and child had disappeared and his house had been sold. He bought a market booth but was recognised by the police who had arrested him in 1999. They asked him for money, took food without paying and searched his room. As a result of the police searches his landlord evicted him. He lived on the street, in hotels and in other rented accommodation, from which he was always evicted; and
g)he decided to leave China and paid RMB70,000 to get a new passport.
The applicant made the following claims in a departmental interview on 17 May 2011:
a)he was detained for over a year. After he was released from detention he was unemployed for more than two years. His wife supported him while he was unemployed in 2001;
b)the police in Qingdao asked him to report to the police station weekly or fortnightly and when he did they asked for money. His parents paid the money;
c)about two years after he arrived in Jiaozhou, the police started asking him for the management fee;
d)he practised Falun Gong in Jiaozhou at night by himself and read books;
e)he had some contact with his wife and son when he was in Jiaozhou but when he returned to Qingdao they had left him;
f)he practised Falun Gong in Australia in a small garden in the city with another man. He had practised every Sunday until he injured himself at work; and
g)he would be arrested in China because Falun Gong was not allowed there.
The applicant attended a Tribunal hearing on 8 August 2011 and made the following additional claims:
a)in January 1999 he started distributing pamphlets on Falun Gong two to three times a week. He had not mentioned this earlier because he had not been asked any questions about his persecution. When he was arrested he was charged with “imparting” Falun Gong. The authorities were aware that he had been distributing pamphlets because they searched his house;
b)he was held at the 610 office for two months before being transferred to the labour camp. The 610 office was a single building with five storeys and a sign at the front saying “Qingdao City 610 Office”;
c)the authorities had arrested many Falun Gong practitioners on the day he was arrested but there were too many and some had escaped. He was aware that two of his friends who were arrested with him were released from detention earlier than he. He was kept in detention because he had been their leader, had supervised them, led them in activities and tutored them. He had not mentioned his leadership role earlier because he was not asked and had not put details in the material he prepared. His friends died in a car accident on their way to a video lecture by Master Li. The lecture was held in a stadium and was attended by about two hundred people, including him;
d)he was detained for eighteen or nineteen months. When he was released his wife and son had disappeared. His parents had given him some money which they said was from his wife;
e)his copy of Zhuan Falun was confiscated when he was arrested but he obtained another one after his release and read it every day. He practised secretly by himself;
f)he moved to Jiaozhou city in June 2001 to escape the authorities’ demands that he report to them every two or three days. In 2002 the police in Jiaozhou started asking him for a management fee. He returned to Qingdao city in 2008 and opened a market stall several weeks after his return. The police in Qingdao had still required him to report to them;
g)the police had demanded money from his family while he was in detention. After he was released they came to his home asking for bail money;
h)he travelled to Singapore, Malaysia and Hong Kong in 2010 as a trial to see if he would be arrested at the border when leaving China;
i)he paid more than RMB1,000 for his passport and RMB200,000 to an agent who helped him travel to Australia; and
j)he had not put details in his statement and at his departmental interview because he had not been asked about his persecution or his Falun Gong practice.
The applicant produced some photographs of him participating in Falun Gong exercises in Australia.
On 9 August 2011 the Tribunal sent to the applicant a letter pursuant to s.424A of the Act inviting him to comment on or respond to certain information that would be the reason, or part of the reason, for it affirming the delegate’s decision. In response, the applicant made the following claims in a letter dated 21 August 2011:
a)he returned to Qingdao once or twice at the end of 2008 as a test to see if it was safe and then returned permanently in 2009;
b)he had paid RMB70,000 to his travel agent to apply for a passport, RMB50,000 for the visa and RMB80,000 for travel expenses. The formal application fee for his passport was RMB1,000;
c)he had contact with his wife while he was in detention and for the first few months he was in Jiaozhou but his wife had not wanted him to contact her; and
d)some of his evidence at the departmental hearing was incorrect because he had injured his waist and was in pain, his mind was not clear, he was not asked questions and the interpreter had made some errors.
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)the Tribunal found that the applicant was not a credible witness and had not been truthful about his experiences in China, his reasons for leaving or his fears about returning to China;
b)the Tribunal found the applicant’s evidence inconsistent and unsatisfactory in relation to:
i)the circumstances surrounding his arrest, particularly how many other people were arrested with him. The Tribunal was of the opinion that the applicant changed his evidence in response to its concerns;
ii)how long he was detained. The Tribunal noted that the applicant’s detention was a very important and traumatic event in his life and it expected that he would have recalled its length with some accuracy;
iii)the details of the 610 office where he was held. The Tribunal further found that the applicant’s evidence was inconsistent with independent information showing that the office was part of a complex of four buildings, that the particular building where Falun Gong practitioners were held was a four storey building and that there were signs at the front of the building designed to mislead the public about the nature of its use;
iv)how often he had been required to report to the police after his release from detention and whether he was required to pay money to the police when he reported. The Tribunal rejected the applicant’s explanation that the inconsistencies were due to an interpreter error, finding that the applicant’s changing evidence was caused by him fabricating his claims;
v)when he lost contact with his wife and son;
vi)his movements in China specifically when he moved to Jiaozhou and when he returned to Qingdao. In light of its significant credibility concerns, the Tribunal did not accept the applicant’s explanation for his inconsistent evidence in this regard; and
vii)when he had to start paying the “management fee” to the police in Jiaozhou. The Tribunal did not accept the applicant’s explanation that the inconsistency was due to a mistake resulting from pain he suffered during the departmental interview as there was no medical evidence to support this;
c)the Tribunal found that the applicant raised a number of new claims at its hearing which it considered to be significant as they gave him a significantly higher profile in China and (if true) would have resulted in there being a greater chance of persecution if he returned to China. The Tribunal did not accept the applicant’s explanations for his failure to raise the claims earlier and found that he had fabricated them in an attempt to bolster his protection visa application;
d)the Tribunal found that the applicant’s responses to questions about Falun Gong were generally lacking in detail or unsatisfactory. Further, his knowledge of Falun Gong significantly increased after the departmental interview suggesting that he had gained it for the purpose of the Tribunal hearing. Having found that there was no evidence to support the applicant’s explanations about the deficiencies in his evidence in the departmental interview, and in light of its concerns about the applicant’s credibility, the Tribunal did not accept those explanations;
e)the Tribunal found that the applicant’s evidence about how he had obtained Zhuan Falun was evasive and only provided after repeated questioning;
f)in light of country information about the treatment of Falun Gong practitioners in China after 1999, the Tribunal did not accept as plausible that the Chinese authorities would have permitted, or been unaware of, a gathering of two hundred people watching a video of Master Li in a stadium in April 2001. The Tribunal also did not accept the applicant’s claim to have attended such a gathering, given his evidence that following his detention in 1999 he had only practised in secret. The Tribunal did not find the applicant’s responses to its concerns to be satisfactory;
g)in light of its findings, the Tribunal found that the applicant had been untruthful in his evidence and consequently it rejected all of his claims. Having rejected the applicant’s claims and given its adverse view of his credibility, the Tribunal was not satisfied that the applicant had engaged in Falun Gong activity in Australia otherwise than for the purpose of strengthening his refugee claims. The Tribunal thus disregarded this conduct pursuant to s.91R of the Act; and
h)the Tribunal found that the applicant would not engage in Falun Gong practice, or in any Falun Gong related activities, if he returned to China as he had no commitment to Falun Gong. The Tribunal found that there was no real chance that the applicant would face persecution because of his association with Falun Gong or for any other Convention related reason.
Application for constitutional writs
In the application commencing these proceedings the applicant alleged:
1.The Second Respondent failed to consider my full claim for a protection visa application.
2.The Second Respondent failed to deal with an indice [sic] of the Applicant’s claim.
3.The Second Respondent failed to fully understand the applicant at the hearing.
Failure to consider entirety of claim
The applicant did not particularise the allegations in the application that the Tribunal had failed to consider his “full claim” or had failed to deal with an indicium of his claim, with the result that those allegations lacked meaningful substance. Nevertheless, as the applicant is unrepresented it is not inappropriate to consider this allegation by reference to the body of his claims.
The applicant’s allegations were that:
a)he commenced the practice of Falun Gong some time after being introduced to it by his cousin in 1997. In July 1999, when practising Falun Gong in a park, he was arrested and taken to the “610 office” in Qingdao. He was also charged with proselytising for Falun Gong because he had distributed pamphlets (at an earlier time);
b)he was subsequently transferred to a labour camp where he was detained;
c)he was kept in detention because he had been a leader of some Falun Gong practitioners in China, supervising and leading them in activities and tutoring them;
d)upon his release from detention he was harassed by the Qingdao police. He was required to report to the police in Qingdao who subjected him to extortion;
e)he moved from Qingdao to Jiaozhou but the local police there also extorted money from him;
f)when he returned to Qingdao and opened a new business he was again the subject of police extortion; and
g)he remained committed to Falun Gong, practising it privately while in China and openly when in Australia.
The summary of the Tribunal’s reasons set out above at [15] makes clear that it considered each of these claims. Indeed, the thoroughness of the Tribunal’s consideration of these matters is highlighted by the contents of its s.424A letter to the applicant of 9 August 2011, which invited him to comment on numerous of the claims and allegations he had made and which he now appears to say were not considered. It should be recorded that the Tribunal’s s.424A letter and the applicant’s response to it were addressed in some detail in paras.63 and 64 of its decision record. A review of the Tribunal’s decision record also discloses that, with the exception of the expenses the applicant incurred in getting to Australia which formed no part of its reasons, the matters raised in the s.424A letter were then further considered by the Tribunal in that part of its decision record under the heading “Findings and Reasons”.
It may be that the applicant’s allegation is, in truth, a complaint that the Tribunal must have overlooked something otherwise it would have found in his favour. Given that I am not of the view that any of the indicia of the applicant’s claim were overlooked by the Tribunal, an allegation of such nature is really no more than an invitation to the Court to state that the Tribunal should have reached a different conclusion on the merits of the application for review and to set its conclusion aside on that basis. The Court has no power to do this, its role in judicial review proceedings such as these being limited to determining whether the Tribunal’s decision is affected by legal error, whether in the procedures adopted for the disposition of the review or in the reasons for the decision on the review.
For these reasons, the first and second grounds of the application do not disclose jurisdictional error on the Tribunal’s part.
Failure to understand the applicant at the hearing
As with the first and second grounds, the third ground of the application was not particularised. However, in his oral submissions at the hearing of this application the applicant made it plain that his concern lay with the quality of the interpreter services provided to him at the Tribunal hearing. However, the only specific matter to which the applicant referred in his submissions was what he said was an incorrect translation of his evidence concerning how long he had been detained in China.
If the interpreter services provided to the applicant at the Tribunal hearing were so inadequate that the Tribunal breached its obligation under s.425 of the Act to provide the applicant with a real and meaningful hearing then jurisdictional error will have been demonstrated.
No evidence was adduced by the applicant to support his allegation of deficient interpreter services. Although he said that one of his friends, who understood English and, presumably, Mandarin, told him after listening to the sound recording of the Tribunal hearing that there had been translation errors, neither that friend nor the sound recording of the Tribunal’s hearing were put before the Court. Nor was a transcript of the Tribunal hearing or expert evidence addressing this allegation placed before the Court.
More generally, I observe that in the Tribunal’s “RRT hearing record” document reproduced at p.74 of the Court Book, which was exhibit A, it is noted that the interpreter who attended the Tribunal’s hearing was accredited to NAATI level 3 and thus was a skilled interpreter.
In all the circumstances, I find that the applicant has not made out his allegation that there were deficiencies in the interpreter services provided to him at the Tribunal hearing.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 22 June 2012
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