SZRGU v Minister for Immigration
[2013] FMCA 99
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRGU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 99 |
| 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 the Tribunal was biased, denied the applicants procedural fairness, wrongly rejected evidence and relied on inadequate interpretation services at its hearing with the applicants. |
| Migration Act 1958, ss.91R, 422B, 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SZRGU |
| Second Applicant: | SZRGV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 613 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 February 2013 |
| Date of Last Submission: | 15 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2013 |
REPRESENTATION
| The Applicants appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 613 of 2012
| SZRGU |
First Applicant
| SZRGV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of China who arrived in Australia on 31 March 2011. On 4 April 2011 the first applicant lodged an application for a protection visa alleging that he feared persecution in China because of his religion. His wife, the second applicant, was included in that application as a member of his family unit. On 20 May 2011 a delegate of the first respondent (“Minister”) refused the applicants’ applications for protection visas. The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s 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 Migration Act1958 (“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 applicants’ claims for protection visas are set out on pages 4-20 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The first applicant made the following claims in a statement attached to his protection visa application:
a)he was born into a Christian family and was baptised in July 1997 by an elder in his hometown. After they were married, he and his wife attended a new family church;
b)on 13 July 2008, his home church was raided by the police. In order to help their fellow worshippers escape, he and another church member were arrested and detained for fifteen days. As a result, he was dismissed from his job in August 2008;
c)in September 2008 he moved to a new town to look for new employment opportunities. He was eventually employed by a construction company;
d)he discovered that his employer operated illegally by using inferior quality products and passing them off as high quality products in order to cut down on expenses. He reported this to higher authorities but was ignored;
e)in 2009 while working on a bridge construction project, he discovered that his employer was using poor quality materials. He reported this to the project manager who offered him an “economic benefit”. When he refused, the project manager excluded him from the project and told him not to tell anyone or his family and his physical safety would be threatened;
f)he reported his employer to the city’s construction bureau but they did not do anything because his employer’s legal adviser was a relative of the deputy mayor. The bureau also told his employer that he had reported it to them. After that, his employer made his life difficult and, because they knew he was Christian, sought to get him into trouble;
g)in October 2010, he sent appeal letters to some government departments;
h)on 14 January 2011 during dinner with some friends at his home, and whilst his wife had gone to the supermarket, the police raided his house. After searching his house and finding some Christian material, the police arrested him and his friends. He was detained for fifteen days and was told that he was not allowed to mention his detention to anyone. He was forced to write a letter promising not to appeal to higher authorities. He was released after his uncle paid a bribe;
i)after his release, the police monitored his home and forced him to stay at home and to report his daily activities to them. As a result, he was dismissed from his work; and
j)he left China with his wife because he had no other choice. He was scared and did not dare return.
The applicants provided the following documents with their applications:
a)a “Notice to detainee’s family members or employer” dated 13 July 2008 indicating that the first applicant had been administratively detained on 13 July 2008 on suspicion of having participated in illegal religious gatherings; and
b)a letter from the first applicant dated 15 October 2010 addressed to “Leaders of Relevant Department” and leaders of the city’s construction bureau complaining about his employer’s dishonest work practices. The letter also claimed that as his superiors knew that he was a Christian, they had collaborated with the police to get him into trouble.
At a departmental hearing on 16 May 2011, the first applicant provided the delegate with a detention warrant dated 4 January 2011 which authorised an investigator to detain him for the organisation of illegal religious gatherings. The warrant stated that the detention commenced on 4 January 2011.
Tribunal
Prior to the applicants’ Tribunal hearing, the first applicant sent the Tribunal a letter dated 7 September 2011 in which he repeated the claims he had made in his statement attached to his protection visa application.
The applicants appeared before the Tribunal on 18 October 2011 and 16 November 2011. On the first hearing day, the first applicant made the following claims:
a)he and his wife were married and had their marriage registered on 4 January 2007. They had a banquet to celebrate their marriage a year after their marriage registration. The banquet was held at a hotel and hosted by a female minister associated with his home church. The female minister witnessed the ceremony in Jesus’ name;
b)he was first detained for fifteen days in 2008 after being arrested at a family church gathering. His wife tried to visit him but failed and they had no contact during his detention;
c)when he was detained for a second time, in January 2011, again he had no contact with his wife. She sent money in order to see him but although “they” took the money, “they” would not let her visit him;
d)he was dismissed at the end of February 2011 and told his wife on the day he was dismissed. After he was dismissed he made a written appeal to the city’s department of construction;
e)he was threatened before and after his detention. He was first threatened in June 2010, about four to six weeks after he wrote his first appeal letter in May 2010;
f)he had claimed in his letter to the construction bureau dated 15 October 2010 that the company leaders had collaborated with the police to get him into trouble because a director of his employer, who was related to an officer in the bureau and knew he was a Christian, had tried to report him for holding a gathering;
g)the letter dated 15 October 2010 was based on his recall of what he had written in the original letter. He had not kept a copy of the letter. The first applicant then said that a copy was on his computer which he had left in China;
h)he and his wife first attended a church in Australia in April 2011 and attended once a week; and
i)he was fearful that if he returned to China he would be put in a psychiatric hospital for spreading Christianity. He would be gaoled and would also be in danger because his former employer would seek revenge.
On the first hearing day the second applicant made the following claims:
a)she was not baptised because she believed she was not good enough, but would be baptised when she got closer to God;
b)she and the first applicant did not have a religious ceremony for their wedding, were not married in a church and no-one spoke about religion at their wedding banquet. They did not have a religious element to their marriage celebrations because there was no religious freedom in China and if people held religious ceremonies openly they got in trouble with the government;
c)she was not allowed to see the first applicant when he was detained for fifteen days in 2008. When he was detained in 2011 she saw him on the second day of his detention, after bribing someone;
d)in October or November 2009, after the first applicant had reported his employer, they received some threats. People told her to watch out and to tell her husband to keep his mouth shut. She was threatened on the roadside on three occasions more than a year before they left China;
e)the first applicant had not told her the detail of what had been happening at his work because he had not wanted her to worry. He resigned from his job after his visa to travel to Australia was granted; and
f)as Christians, she and the first applicant would preach if they returned to China and they would be arrested because of their underground activities.
The second applicant made the following additional claims on 16 November 2011:
a)the first applicant’s letter to the construction bureau dated 15 October 2010 was typed after their arrival in Australia. They were unable to bring the original copy because they had been checked by customs when leaving China;
b)at the first hearing day, when discussing how the first applicant left his last employment in China, she had not understood the word which had been used to mean “dismissed”. She believed the words used had the meaning of “laid off”; and
c)she had been sick for a while and had felt uncomfortable during the first hearing day. The hearing had been too long and she had felt dizzy towards the end. She may have remembered things wrongly.
On 16 November 2011 the first applicant claimed that when he was detained in January 2011 he saw his wife during the interview process before he was put in prison but did not see her while he was in prison.
In a letter to the Tribunal dated 1 December 2012, the first applicant claimed that between April and October 2010 (after he reported his employer to the city and district bureaux of construction) his supervisors threatened to have him arrested for his Christian beliefs.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons 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 applicants had fabricated an association with the Christian faith in China, had not experienced harm because of any such faith and did not hold that faith. In this regard, the Tribunal noted that the applicants gave inconsistent evidence about whether there was a Christian element in any event celebrating their marriage. The Tribunal found that the fact that the applicants were not able to offer consistent evidence about the part their claimed faith played in their marriage celebrations, or any plausible reasons for the inconsistency, indicated that they were not being truthful in their claims;
b)the Tribunal found that the letter dated 15 October 2010 submitted by the first applicant had been presented as a copy of the original letter, with no indication that it was a recreation of an original letter. The Tribunal found that the fact that the letter contained claims about collaboration with the police by the first applicant’s employer indicated that it was not a truthful document. Given that the applicant’s claimed detention in 2008 was unrelated to his subsequent employment and could not have been the basis for the reference to police collaboration, the Tribunal found that the letter could only refer to collaboration with the police if it were written after January 2011 but instead it was dated 15 October 2010. The Tribunal rejected the first applicant’s explanation that he was referring to threats of police involvement made by his employers from mid-2010. Based on the first applicant’s later explanation that the letter was a reproduction produced after his arrival in Australia from memory and mistakenly referring to subsequent events, the Tribunal found the letter to be a fraud. The Tribunal found that the applicants had created a fraudulent document to support their claims and that their late admission of this did not support a view that they were truthful;
c)the Tribunal also found unreliable the documents which purported to substantiate the first applicant’s claim to have been twice detained in China. In this regard, the Tribunal noted departmental information indicating that the applicants were from an area with well-organised migration fraud activities. Given that the first applicant acknowledged that he had produced one fraudulent document, the Tribunal found that the other documents from China were of the same nature and could not be relied upon;
d)the Tribunal found that the applicants gave inconsistent accounts of the harm they claimed to have experienced in China, with the first applicant claiming to have received threats in April 2010 while the second applicant claimed to have been threatened in October or November 2009. Whilst accepting that difficulties in recalling events occurred, the Tribunal noted that the direct threats were made in the relatively recent past and were out of the ordinary for the applicants. The Tribunal therefore did not accept that the applicants’ recollection of the events said to have led to their departure from China would have been so affected that there was a six month difference in their evidence concerning the commencement of the threats against them;
e)the Tribunal found that the applicants’ evidence in relation to more recent and significant events was extremely unreliable, noting that they gave inconsistent evidence about the first applicant’s cessation of employment in China. The Tribunal did not accept the second applicant’s explanation that she may not have understood the word used to describe her husband’s cessation of work and took its meaning wrongly. In the Tribunal’s view, the second applicant’s initial evidence clearly indicated that she understood the distinction and was surprised by claims that the first applicant had been dismissed. The Tribunal found that this inconsistency was because the applicants were untruthful about their circumstances in China;
f)the Tribunal noted that the applicants gave inconsistent evidence about whether the second applicant was able to visit the first applicant when he was detained in January 2011. The Tribunal did not accept the applicants’ explanation for this inconsistency;
g)whilst acknowledging that the second applicant had had health issues in the past, the Tribunal found that this was not the reason for the inconsistencies in her evidence. The Tribunal noted that the second applicant was able to give evidence about certain matters without indicating any problems with her memory and that she only indicated that she had difficulties with her memory arising from her health problems when clear inconsistencies emerged. The Tribunal also noted that significant concerns arose from the first applicant’s evidence and the documents presented with the application. The Tribunal thus found that the difficulties with the second applicant’s evidence arose from her evidence being untruthful rather than from any other cause; and
h)the Tribunal found the applicants’ untruthful explanations for the deficiencies in their evidence to be inconsistent with genuine followers of the Christian faith. It found that the applicants would take any action and make any statement to try to support their claims without regard to the truth and that this extended to false associations with churches in Australia. Finding that the applicants had associated themselves with the Christian faith in Australia solely to support their protection visa applications, pursuant to s.91R(3) the Tribunal disregarded their conduct in attending churches in Australia.
Proceedings in this Court
In the application commencing these proceedings the applicants alleged:
1.RRT has bias against me and exploited my disadvantages.
2.RRT failed to comply with procedural fairness.
3.RRT and Immigration Department denied my evidence without conscience.
At the hearing of this application the applicants also alleged that the interpretation of their evidence at the Tribunal hearing had been deficient.
Bias
The applicants did not point to any conduct on the part of the Tribunal which would justify a finding that the Tribunal was biased in fact or that a reasonable observer would have apprehended the possibility that it was biased. Allegations of such seriousness should be clearly and positively alleged and particularised and the applicants failed to discharge that obligation. In any event, a review of the Tribunal’s decision record, which is the only evidence before the Court of relevance to the question, does not support findings of actual or apprehended bias on the part of the Tribunal.
A second aspect of the first allegation was that the Tribunal had “exploited my disadvantages”. No attempt was made to identify what those disadvantages were or how they were exploited. In the absence of such information, I find that this part of the allegation has not been made out.
For these reasons, the first ground of the application, as a whole, is not made out.
Denial of procedural fairness
As the applicants’ separate allegation of bias against the Tribunal has been dealt with in the context of the first ground of the application, it is not necessary to deal with it again in the context of the second ground of the application, which is a general allegation that they were denied procedural fairness.
Again, the applicants’ allegation is not particularised and thus lacks meaningful content. Nevertheless, it is appropriate to consider it and to do so by reference to the relevant statutory provisions.
For the purposes of Tribunal reviews, the natural justice hearing rule, being the relevant element of the Tribunal’s duty to accord procedural fairness, has been codified by s.422B of the Act in those sections found in div.4 of pt.7 of the Act. Of those sections, ss.424A and 425 are the most important. In this case, the Tribunal had no s.424A obligations to the applicants because the information upon which it relied in reaching its decision was information which fell within the s.424A(3) exceptions to the application of the operative portion of the section, s.424A(1). Even so, the Tribunal did put certain matters to the applicants during the course of its hearing. It did this pursuant to s.424AA, a section which provides a procedure by which to comply with s.424A. The Tribunal discharged its s.424A obligations.
Section 425 required the Tribunal to invite the applicants to a hearing and to ensure that they were on notice of all issues likely to be determinative of an adverse decision on their case. The applicants were invited to, and attended, a Tribunal hearing. Further, the credibility of the applicant’s case was clearly put in issue by various questions and propositions which the Tribunal put to them during the course of the hearing. For these reasons, subject to matters discussed in the context of the fourth ground of the application, no breach of s.425 has been demonstrated.
The applicants did not suggest, and it is not apparent, that the remaining provisions of div.4 of pt.7 of the Act applied in their case. It has not been demonstrated that any obligations which those sections might have imposed on the Tribunal were not observed.
Rejection of evidence
The applicants did not explain what they meant by the allegation that the Tribunal had “denied” their evidence “without conscience”, although it could be interpreted as an allegation that the Tribunal rejected their evidence without a proper basis to do so. If so, the allegation is not made out. The Tribunal gave full and adequate reasons for its rejection of the applicants’ evidence on credibility grounds, based principally on inconsistencies in their accounts. The factual conclusions reached by the Tribunal were open to it on the evidence. That being so, it could not be said that the rejection of their evidence evinced error, much less conduct of an unconscionable nature.
For these reasons, the third ground of the application is not made out.
Breach of s.425
At the hearing of this application the applicants submitted that there had been deficiencies in the interpretation services at the Tribunal hearing, such that the material substance of their evidence was affected. Were it the case that the quality of the hearing was compromised by interpretation errors such that the applicants were denied the real and meaningful hearing opportunity which was their right, then jurisdictional error would have been demonstrated. However, because no evidence was adduced to support the allegation I find that it is not proved.
Although the applicants made factual allegations concerning how the allegedly deficient interpretation services affected their evidence, they did not identify how they were able to tell whether the interpretation had been good or bad. For instance, the applicants did not demonstrate that they had the necessary expertise to be able to determine that the Tribunal’s interpreter was inadequate. Moreover, they did not suggest that they had listened to the sound recording of the Tribunal hearing and indeed it is not apparent from the Court Book that they were provided with compact discs holding the sound recording of that hearing. Finally, no copy of the transcript was tendered or evidence adduced from an expert witness identifying exchanges at the Tribunal hearing where the interpretation service was inadequate. There is nothing in the Tribunal’s decision record to suggest that there were any.
In the absence of evidence on the point apart from the Tribunal’s own summary of its hearing, the applicants’ assertions concerning the quality of the interpreter services at the Tribunal hearing are no more than unsupported allegations which, as recorded earlier, I find are not proved.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 20 February 2013
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