SZQXU v Minister for Immigration
[2012] FMCA 446
•1 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQXU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 446 |
| MIGRATION – Review of decision by Refugee Review Tribunal – allegation of interpretation issues before the Tribunal – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A, 427, 441A, 441C, 441G, 476 Migration Regulations 1994 (Cth), r.4.35D |
| Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 SZKLX v Minister for Immigration & Citizenship [2007] FCA 1414 SZJBD v Minister for Immigration & Citizenship and Anor[2009] FCAFC 106; (2009) 179 FCR 109 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 |
| Applicant: | SZQXU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2787 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 May 2012 |
| Date of Last Submission: | 28 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application made on 6 December 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2787 of 2011
| SZQXU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 6 December 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 1 November 2011, which affirmed the decision of the delegate of the first respondent to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on a student visa in August 2007 (Court Book – “CB” – CB 1 and CB 11). That visa expired in March 2010 (CB 30). On 13 September 2010 the applicant applied for a protection visa (CB 1 to CB 30 with annexures). Included with her application was statement in which the applicant set out her claims to protection (CB 29 to CB 30). Namely:
1)Her parents owned a successful business, an “aqua farm”, in China. In October 2009 her parent’s finance company indicated that it wanted to terminate its contract with them ahead of schedule. It was “… implied that it was the intention of the local government chief”, as his relative had an interest in acquiring their business. Following that conversation, her parents and their business were frequently disturbed.
2)In December 2009 the finance company again tried to terminate the contract. In response her father contacted, by letter, the “Letters and Visits office” in the hope that “… higher authorities would intervene and check the chief’s corruption” (CB 30). No response was received.
3)The applicant’s father was detained by policemen in February 2010. He was “tortured” and, given his refusal to sign the agreement to terminate the contract, remained in custody. The applicant’s mother protested his detention and, in response, in March 2010, her house was broken into and threats were made against the applicant if she returned to China.
The Delegate
The applicant was invited to attend an interview with the delegate on 22 October 2010 (CB 31 to 32), which she did (CB 55).
Prior to the interview the applicant appointed a migration agent, (“Jie Yu”) as her representative and “authorised recipient” (CB 35 to CB 38).
Following the interview, by letter received on 4 or 8 November 2010 [it is unclear as the document contains two “Received” stamps with the various dates], the applicant’s representative provided several documents in support of her claims (CB 39 to CB 49).
On 9 December 2010 the Minister’s delegate decided to refuse the grant of a protection visa to the applicant (CB 50 to CB 63). The delegate found elements of the applicant’s claims to be “implausible” (CB 61) and that, without anything further, her claims were not credible and were merely “uncorroborated assertions” (CB 62). The delegate considered the supporting documents provided by the applicant but, in the circumstances and given that none of the documents were certified, placed no weight on them (CB 62). The delegate found her claims to fear persecution not to be credible given that she had been out of China for three years and her parents continued to live on the “aqua farm” property (CB 92).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 8 January 2011 (CB 64 to CB 67). The applicant nominated the same migration agent as her authorised recipient in that applicant (CB 65).
By letter dated 22 February 2011, by way of the applicant’s authorised recipient, the applicant was invited to attend a hearing before the Tribunal on 22 March 2011 (CB 72 to CB 73). On 18 March 2011 the applicant was notified that her hearing had been rescheduled to 15 April 2011 (CB 76 to CB 77). The applicant attended on that date and was assisted by an interpreter in the Mandarin language (CB 79).
At that hearing the applicant proffered that she was four months pregnant and “… if she goes back with the baby there will be another reason for them [her parents]/her to be threatened” ([43] at CB 106 to CB 107). Further, that her family could not support her and her child and, since being told of the baby and her intention to “keep it”, her parents’ “hang up” whenever she telephones them in China ([45] at CB 107).
Following the hearing, on 4 May 2011 the applicant provided several additional documents in support of her application to the Tribunal, including a medical certificate which stated that the applicant was “… 19 weeks pregnant” (CB 88 to CB 90).
By decision dated 1 November 2011 the Tribunal decided to affirm the delegate’s decision (CB 98 and [69] at CB 112). The Tribunal’s findings and reasons are set out in its decision record ([49] at CB 108 to [69] at CB 112), a copy of which was provided to the applicant (CB 96 to CB 97).
While accepting that the applicant was pregnant ([57] at CB 109), the Tribunal did not accept that she had a well-founded fear of harm because of her pregnancy, nor because her child was conceived out of wedlock ([59] at CB 109). The Tribunal did not accept that the applicant had given truthful evidence regarding her claims and, in the circumstances, found that the applicant’s parents had not been “… threatened, harassed, detained or ill treated in China by those that the applicant claims for the reasons that she claims” ([59] at CB 109).
In this regard, while accepting that country information generally supported that such claims as made by the applicant could lead to persecution ([53] at CB 108), the Tribunal was not satisfied that this was so in the applicant’s case, given its findings that she had not given truthful evidence ([59] at CB 109). This was based on inconsistent and implausible evidence given by her, including, that she had “modified” her evidence to answer the Tribunal’s concerns ([63] at CB 110).
The Tribunal considered the documents provided by the applicant, to both itself and the Department, in support of her application ([65] at CB 111). In the circumstances, and given country information “… indicating the prevalence of document fraud in China”, the Tribunal found that the documents were not reliable
The Tribunal found her claim to fear persecutory harm for reason of her parents’ difficulties with the “aqua farm” to be inconsistent with the delay in her applying for a protection visa. The Tribunal did not accept her explanations for this delay ([60] at CB 109 to [61] at CB 110).
Further, the Tribunal’s decision was informed by its findings that the applicant had “changed her evidence … to answer the Tribunal’s concerns” ([62] at CB 110) and otherwise, and variously, “modified” her evidence ([63] at CB 110).
The Application to the Court
The application contains the following unparticularised grounds:
“1. in the court interpreter translation error
2. The situation is worse than before. relly scare of persecute.”
[Errors in the original]
Before the Court
At the hearing the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Ms D Watson appeared for the first respondent. The Court had before it the application, the Court Book and the Minister’s written submissions. Despite the opportunity afforded to her by orders made by consent at the first Court date of the matter, no amended application or written submissions were filed by the applicant. However the applicant filed, on 15 February 2012, an affidavit made by her on 14 February 2012, annexed to which is a document in which the applicant purportedly transcribed portions of her interview before the Tribunal.
Before the Court the applicant complained that the Tribunal found contradictions in her evidence. These appear to relate to those parts of the hearing that she attempted to put before the Court as annexures to her affidavit.
Further, that the Tribunal was “unfair” to her because it was “suspicious” of her. This was said to be because fraudulent documents were readily available in China. The Tribunal should not have found that her documents were fraudulent because of this.
In this light also, while it may be the case that other women who apply for protection visas fall pregnant to enhance their claims to persecution (for example, the “one child policy”) that did not mean she did so for that reason.
Finally, the applicant took issue with the Tribunal’s finding in relation to the delay in applying for a protection visa after arrival in Australia.
Ground One
Ground one of the application asserts errors of interpretation at the Tribunal hearing. The applicant has attempted to put the alleged errors before the Court in an evidentiary context.
There are obvious deficiencies in what the applicant has attempted to do. These include:
1)The partial transcript of the proceeding before the Tribunal has not been prepared by a qualified and independent interpreter, translator or transcriber. It has been prepared by the applicant.
2)The “transcript” lacks clarity. The affidavit lacks particularly as to the errors asserted and how these affect the presentation of her case, let alone that the errors were in relation to a matter of substance. Nor did the applicant assist in this regard in her “submissions” before the Court.
It is the case that where an applicant is not proficient in English, pursuant to s.425 and 427(7) of the Act, the Tribunal is obliged to provide a competent interpreter who is required to provide a competent interpretation (Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [17] and [20], SZKLX v Minister for Immigration & Citizenship [2007] FCA 1414 and SZJBD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 106; (2009) 179 FCR 109). A breach of the Tribunal’s procedural fairness obligation under s.425 of the Act will occur where the interpretation is such that the applicant is unable to adequately give evidence and present their case (Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31]).
But it is the case that not every error of interpretation will lead to a breach of procedural fairness obligations, and therefore jurisdictional error. Such a failure will occur where the errors in interpretation relate to matters of substance and the interpretation is so inadequate such that it could be said that the applicant was effectively prevented from giving her evidence (Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).
The difficulty for the applicant in the current case is that the purported transcript, when taken at face value, and to the extent that meaning can be discerned, does not reveal any difference in substance between what the applicant says she told the Tribunal (“I”), and what the interpreter said (“interpreter”). [In the applicant’s presentation she sought to differentiate between the two by the use of these symbols.]
The minor variations, even if they can be described as such, do not reveal a level of interpretation that was of the level of inadequacy such that the applicant can be said to have provided evidence to establish, on balance, her complaint.
Further, what the applicant now says, in her affidavit, that she told the Tribunal is consistent with what the Tribunal recorded the applicant as having said at the hearing (see in particular [39] at CB 105).
Further, on its face, the Tribunal appears to have taken steps to provide a competent interpreter. The interpreter employed was accredited to “level 3” by the National Accreditation Authority for Translators and Interpreters (“NAATI”) (see CB 79.8). There is nothing before the Court to establish error on the part of the Tribunal in this regard.
One of the critical issues for the Tribunal in its determination of this review was the delay in the applicant applying for the protection visa and the Tribunal’s concerns with her explanation for this delay. The change in the applicant’s evidence in relation to the applicant’s explanation for the delay in applying for a protection visa also formed part of the Tribunal’s adverse concerns.
Even on the best reading of the applicant’s partial “transcription” of the hearing, this issue is not an issue in respect of which the applicant’s claimed interpretation difficulties or deficiencies.
Another issue before the Court was the matter of the applicant’s pregnancy and whether, on return to China, the circumstances of having a child out of wedlock would lead to persecutory harm for her. This again is not a subject of the impugned part of the interpretation at the hearing.
Two matters are addressed in the applicant’s “transcript”. One is the matter of her parents being able to remain living at the family home and farm in circumstances where the applicant claimed that they were harassed and subjected to harm. The other was the matter of her brother’s return to the family for a time where he was able to obtain documents for her.
While both these matters were at issue before the Tribunal in rejecting her claims, given its findings about inconsistencies in her relevant evidence, the alleged differences in what the interpreter is said to have interpreted do not reveal that the level of interpretation was inadequate in the way explained by relevant authorities. Nor, in relation to the brother, was the matter of whether he remained at the farm a critical matter of substance.
Ground one is not made out.
Ground Two
Ground two only seeks to challenge the merits of the Tribunal’s decision and thereby seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It also does not reveal jurisdictional error.
The complaint that the Tribunal found contradictions in her evidence, once the interpretation complaint is addressed, is nothing more than a challenge to the Tribunal’s findings. Findings which included findings on credibility which were all made within the exercise of the Tribunal’s jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). These findings were reasonably open to the Tribunal on what was before it and for which it gave reasons.
The applicant’s claim that the Tribunal was “unfair” may, in the circumstances, be construed as a complaint that the Tribunal was unduly prejudiced by factors external to her actual circumstances. That is, it did not bring an open mind to the question of her pregnancy and the consequences of returning to China with a child had out of wedlock and the matter of the authority of the supporting documents.
As is often said, allegations of bias, or the apprehension of bias, must be distinctly made and clearly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
Neither is the case here. There is nothing before the Court to show that the Tribunal had regard to other women, even women from China, who may have had children in Australia and sought a protection visa in Australia alleging persecutory harm on return by reason of an “unregistered” (in China) child born out of wedlock.
The Tribunal did not make any adverse finding as to the motives of the applicant becoming pregnant. It accepted this fact. But did not accept the applicant’s claim that her return to China with her child would lead to persecutory harm ([66] at CB 111).
While the Tribunal did refer and have regard to the availability of fraudulent documents from China, its finding that the documents were not reliable evidence of the facts they asserted was also based on its concerns about the credibility of the applicant’s evidence ([65] at CB111). This was reasonably open to the Tribunal on what was before it.
Other Considerations
Nor can I otherwise see any jurisdictional error. The applicant was invited to a hearing pursuant to s.425 of the Act. That invitation complied with all the relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s. 441C(4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)) (CB 70 to CB 72). While the hearing was rescheduled at the convenience of the Tribunal (CB 75 to CB 77), that invitation also complied with all the relevant requirements.
The issue determinative of the review was raised at the hearing such that the applicant would have known the case against her. This issue was that the Tribunal did not believe the applicant’s account of claimed events in China, and did not accept that her child, born out of wedlock, would result in persecutory harm if the applicant and her child returned to China (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592).
While the Tribunal relied on information which it considered would be the reason, or a part of the reason, for affirming the delegate’s decision, such information was excluded from the operation of s.424A(1) by the exclusions in s.424A(3) (what the applicant said and gave in relation to her protection visa by s.424A(3)(b) and (b), and country information by s.424A(3)(a)). Noting also that the Tribunal’s adverse views of the applicant’s evidence is not “information” for the purposes of s.424A(1) (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609).
Ultimately, the Tribunal’s findings, including its findings on the applicant’s credibility, were all reasonably open to it on what was before it. Further, it gave reasons for these. No error, let alone jurisdictional error, is revealed in these circumstances.
Conclusion
For the applicant to succeed the Court would, at least, need to discern jurisdictional error in the Tribunal’s decision. No such error is evident. Therefore it is appropriate that the application be dismissed. I will make an order accordingly.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 1 June 2012
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