SZRAS v Minister for Immigration - [2012] FMCA 596

MAGISTRATES COURT OF AUSTRALIA

SZRAS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 596

MIGRATION – Review of decision of Refugee Review Tribunal – where applicant claimed nervous at hearing – where applicant claimed interpreter errors – whether applicant granted proper hearing – whether bias – whether jurisdictional error.

Migration Act 1958 (Cth), ss.91R(3), 424A, 425(1)

M175 of 2002 v Minister for Immigration & Anor [2007] FCA 1212
SZJZE v Minister for Immigration & Anor [2007] FCA 1653
WALN v Minister for Immigration & Anor [2006] FCAFC 131
Perera v Minister for Immigration & Anor [1999] FCA 507
WACO v Minister for Immigration & Anor [2003] FCAFC 171

Applicant:

SZRAS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 23 of 2012

Judgment of:

Raphael FM

Hearing date:

22 June 2012

Date of Last Submission:

22 June 2012

Delivered at:

Sydney

Delivered on:

22 June 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 23 of 2012

SZRAS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 30 April 2011 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 1 June 2011. She attended an interview with a delegate who determined to refuse to grant such a visa on 13 July 2011. On 9 August 2011 the applicant applied for a review of that decision from the Refugee Review Tribunal. She attended a hearing before the Tribunal on 10 November 2011. On 16 November 2011 the Tribunal wrote to her pursuant to the provisions of s.424A of the Migration Act 1958 (Cth)[1] on 28 November 2011. On 8 December 2011 the Tribunal determined to affirm the decision not to grant the visa.
[1] “Act”
The ground upon which the applicant claimed that she was a person to whom Australia owed protection obligations was the convention one of religion. The applicant claimed she was a Christian. She told that in June 2010, as a result of a deteriorating domestic situation, she had attempted suicide. She was not successful and a friend helped her to overcome her problems by introducing her to a church. She told that this was an underground church where members would read the bible and sing hymns and praise God. In July 2010 she claimed that she had been baptised. On Christmas Day 2010 she was with some church brothers and sisters for a celebration that began at 7.30 in the evening. She told that about 10 o’clock the premises were raided and that a number of people were arrested including herself. She was questioned and beaten by the police. She was not given any food and drink. After 48 hours she was released.
When the applicant came to Australia she told that she sought out a church. The denomination of the one that she attended was Seventh Day Adventist. She attended regularly. The applicant claimed that she feared to return to China because of her previous experiences.
The Tribunal questioned the applicant upon her story. During the course of her interview she told the Tribunal that she had attended another large church called St Paul’s before she attended the local church at which she had been arrested. The applicant was unable to tell the Tribunal what type of church that was. Indeed, she was unable to tell the Tribunal the denomination of the religious group that she had been associated with other than that they were Christians. The Tribunal noted that the applicant had not mentioned her attendance at the St Paul’s Church prior to that hearing.
The Tribunal appeared to be particularly concerned with the applicant’s choice of attendance at a Seventh Day Adventist Church in Sydney. A considerable part of the interview and of the decision record is taken up with questioning and responses about that church. For instance, the Tribunal noted that she had not named the church as a Seventh Day Adventist Church before the delegate but had called it the “Fulin Church.” It later transpired that Fulin was the name of the church to the extent that that word was used in the documentation that the church provided in Mandarin.
“[33]The Tribunal stated that the applicant did not mention anything about being a Seventh Day Adventist Church that she had been attending in Sydney and queried why the applicant would not have said that when she was specifically asked the denomination of the church. The Tribunal commented that the applicant had said she did not know when asked the denomination of the church by the delegate. When asked again why she would not have referred to it being a Seventh Day Adventist church and why she had said that the church was in Burwood when the pamphlet indicated that it is in Strathfield, the applicant stated that she could not speak English and a friend told her it was in Burwood.”[CB 110]
The Tribunal questioned the applicant about the beliefs of the Seventh Day Adventist church. The applicant was able to tell the Tribunal in answer to its questions that one of the most important differences between that church and other churches was that it celebrated its Sabbath on Saturday rather than on Sunday.
“[34]The applicant stated that the particular difference is the day of the service and she believes this and it is the intention of the Bible and Jesus was crucified on a Saturday and that is the Sabbath Day. The Tribunal commented that the fact that the applicant had attended that church without considering the specific beliefs does not indicate a genuine interest in Christianity. The Tribunal also advised the applicant that there are other beliefs which are fundamental to Seventh Day Adventists. The Tribunal advised the applicant that the “Advent” or Second Coming is a very important concept of the Seventh Day Adventists. The applicant stated that her church talked about it. When asked why she did not raise it when asked specifically about the beliefs of the Seventh Day Adventists, the applicant stated that it is “just a problem of time.”
In the s.424A letter the Tribunal raised with the applicant a question relating to the obtaining of her passport which was issued on 2 June 2010. The applicant had claimed that the members of her church had told her to obtain the passport but in fact the problems that she had experienced did not occur until December. The applicant responded to that to the effect that there was a misunderstanding with the delegate and she thought he was referring to obtaining a visa to come to Australia. She accepted that the church did not help her obtain a passport. She got one because she wanted to travel to the United States. It was said that the church helped her after the incident to obtain a visa to travel to Australia.
The second matter raised in the 424A letter related to some responses that the applicant had made to the delegate, in particular her response that the world have been created in 2000 days and that she had described a picture in her church in China of Jesus being held by someone who she described to the delegate as “God.” The Tribunal took issue with this considering that the applicant’s knowledge of Jesus’ birth was limited:
“… [Y]ou said that Mary and Joseph were travelling and were in hiding from the people who wanted to check them, while most Christians believe they were in hiding - believe that Mary and Jesus were travelling to Bethlehem to register the birth of Jesus; and you stated that Moses is one of the 12 disciples of Jesus (Christians do not believe that Moses was one of the disciples).”
The applicant responded to this to the effect that she couldn’t really remember the picture all that accurately and she did not recall any questions being put to her by the delegate as to who was holding was Jesus in the picture. She agreed she was asked who Moses was and suggested that he was a disciple but he said that she immediately corrected herself and told him that Moses was the person involved with the stone plate of the ten commandments.
In the Tribunal’s findings and reasons, it concluded that the applicant was not a credible witness and it did not accept that she was a Christian or that she had any involvement in the underground activities in China. It considered that she had manufactured the totality of her claims to fear harm in China. The Tribunal felt that the applicant’s account of her arrest and detention on Christmas Day was lacking credibility because only ten of the 25 people were arrested:
“[48]The applicant has stated that the reason that they only arrested 10 people was because they only brought 2 police cars and subsequently claimed that it was also because they were only interested in the people who were in the front and that in the “chaos” some people managed to escape. The Tribunal does not accept that it is credible that the police would raid an underground religious activity, bringing a large number of officers to do so, yet only manage to arrest less than half the people because they only had 2 cars there or that they would only be interested in people who were at the front. The Tribunal also considers that it is not credible that 7 to 8 police officers would allow some 15 of the 25 people who were present to escape. The Tribunal considers that the applicant’s evidence in relation to this issue is not credible and indicative of the fact that it has been manufactured.” [CB 113-114]
The Tribunal also considered other evidence of the applicant to be problematical. It was concerned that she attended a church in China without finding out its denomination and then turned to her knowledge of Christianity. It considered that she lacked a genuine understanding of aspects of Christianity and:
“[50]Her inability to name the person who was holding Jesus in a picture on the wall of her church in China is indicative of her lack of knowledge of important issues relating to Christianity. The Tribunal has considered the applicant’s response to this issue, but does not accept that she has satisfactorily explained why she did not know who would be holding Jesus in the picture which was allegedly on the wall of her church. The Tribunal also considers that the applicant’s understanding of the story of Jesus’ birth was also limited and did not indicate a genuine understanding. The Tribunal accepts that the applicant initially stated that Moses was one of the disciples that she subsequently corrected herself to state that he had “something to do with the 10 commandments”, but does not accept that this displays anything other than a limited understanding of these concepts.” [CB 114]
Another matter of concern to the Tribunal was the applicant’s apparent choice of the Seventh-day Adventist Church without really having any knowledge of the philosophy of that church. It considered that her evidence indicated she gave no consideration to the type of church she attended in Australia but if she had been genuinely interested in Christianity, she would have given some consideration to that matter.
“[52]As stated above, the Tribunal accepts that it may be difficult for an applicant to articulate a knowledge of specific beliefs during the hearing in context, but considers that the applicant’s inability to articulate fundamental and basic concepts associated with the church which she has been attending does not indicate any genuine interest or understanding in that religion.” [CB 115]
The Tribunal concluded that the applicant had attended the church solely to strengthen her claims to be a refugee and therefore, discarded her evidence pursuant to s.91R(3) of the Act.
On 4 January 2012 the applicant filed an application with this court seeking review of the decision of the Tribunal. She had four grounds for seeking that review. The first was:
“1. I am a genuine, devout Christian, truthful witness.”
This is a statement of fact by the applicant which may or may not be correct. That was something which the Tribunal was charged with deciding. It concluded it was not correct. The reading of the Tribunal’s decision provides grounds for that conclusion. Whatever the court may think of those grounds they could be said to be available on the evidence before it and thus its finding can not be impugned.
The second ground was:
“2.I didn’t express clearly in the interview because I was too nervous.”
There is no indication from the Tribunal’s decision record that the applicant told the Tribunal that her responses were infected by her nervousness. There are indications within the Tribunal’s decision record that it appreciated that persons from her background might have difficulty in comprehending and answering questions. In order to establish, as the applicant would have to, that this was not a proper hearing within the scope of s.425 of the Act she would have to deduce considerable evidence based upon the transcript. That has not been done.
The same conclusion must be drawn in respect of the third ground, which was:
“3. Language problems caused misunderstanding.”
Whilst inadequate interpretation can constitute a denial of procedural fairness and a failure to comply with the Tribunal’s essential statutory obligation in s.425(1); M175 of 2002 v Minister for Immigration & Anor [2007] FCA 1212. Middleton J said in SZJZE v Minister for Immigration & Anor [2007] FCA 1653 at [21]:
“21 With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants.”[citations omitted]
See also WALN v Minister for Immigration & Anor [2006] FCAFC 131 at [29] and Perera v Minister for Immigration & Anor [1999] FCA 507 by Kenny J at [41]. It should also be noted that in WACO v Minister for Immigration & Anor [2003] FCAFC 171 the Full Court said at [66]:
“[66]It follows from the fact that interpretation is not merely a mechanical exercise that there will be some words, of which `house arrest' may be an example for which there is no perfect translation. However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”
The fourth ground was:
“4.New to Australia. I’m not familiar with some suburbs and locations. The Seventh Day Adventist Church is located in between Burwood and Ashfield. I know how to get to the church, but not quite sure which exact suburb.”
If this was the Court hearing an appeal from this Tribunal decision and if the location of the church actually had been a matter upon which the decision rested, this court would have agreed with the applicant that the Tribunal had erred in placing any relevance upon the matter. The applicant is a woman of limited education, no knowledge of English and in an unfamiliar city. How can it be significant that she mistook the name of a suburb? However, this is not an appeal and the Tribunal’s grounds and reasons do not make reference to this error. It could not be said that it fell into jurisdictional error in the way suggested by the applicant.
The applicant appeared before me today. She told me that she thought the member had a biased opinion against her church and she was not happy about the decision. She felt that the member had disapproved of the church and so everything she had said the member had disapproved of. She also told me that she had felt nervous and she didn’t know that she could ask for an adjournment. She felt the member did not know very much about the situation in China and could not understand why she was scared to go back there.
It does seem to me that the member had some real concerns about why the applicant had chosen the Seventh Day Adventist Church to attend in Australia. It was influenced by the fact that the applicant was not able to tell it what denomination of church she attended in China so that the choice of this particular denomination was perhaps unusual. Another Tribunal may have come to the conclusion that a genuine Christian coming from China who wanted to continue to worship in this country would be drawn to any church that advertised itself as catering to the Chinese community in the way that the information contained in the court book between [CB 76 and 81] clearly shows. In the same way another Tribunal may not have laid emphasis on the fact that the applicant was unable to identify a figure in a picture that she had described to the delegate, which neither the delegate nor the Tribunal had seen for themselves.
Another Tribunal may not have been so ready to dismiss the applicant’s immediate correction of her understanding of Moses in the way this Tribunal did. Another Tribunal may have thought that the applicant’s explanation of the difference between Seventh Day Adventists and other churches was sufficient for a person who had only recently turned to Christianity and who had not been attending church for a particularly lengthy period of time. But if this court was to find that the Tribunal fell into jurisdictional error because it came to findings with which the court disagrees, even if it disagrees quite strongly, would mean that the court itself was falling into error. These are all matters upon which the Tribunal is the decider of fact. They are all matters from which the Tribunal is entitled to draw reasonable conclusions, even if they are not the conclusions that the Court might have drawn or another Tribunal might have drawn. For these reasons the court is unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.
The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $3,200.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 5 July 2012