SZSMO v Minister for Immigration
[2013] FCCA 1536
•4 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSMO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1536 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424A |
| SZOYD v Minister for Immigration [2012] FMCA 316 |
| First Applicant: | SZSMO |
| Second Applicant: | SZSMP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 44 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2013 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Ms A Crittenden |
ORDERS
The application is dismissed.
The first applicant pay the first respondent’s costs.
The name of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 44 of 2013
| SZSMO |
First Applicant
| SZSMP |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant (applicant), on behalf of herself and her child, the second applicant, claimed before a delegate of the first respondent (Minister) and before the second respondent (Tribunal) that she and her child had a well-founded fear of being persecuted if they returned to China, their country of nationality.
The applicant claimed to fear persecution for two principal reasons. First, when in China, she participated in meetings of a family church as a result of which, in 2005, she was arrested twice and consequently suffered discrimination and humiliation. Second, the applicant’s child was born out of wedlock after the applicant arrived in Australia, and cannot be registered and obtain social services in China unless the applicant pays a social compensation fee which she cannot afford.
The delegate and the Tribunal dismissed the applicant’s claim for a protection visa. The Tribunal was not convinced the applicant participated in the church activities in China as she claimed, or that the Chinese authorities had detained the applicant for that reason.[1] Nor did the Tribunal accept that the applicant is a genuine local church follower in Australia.[2] The Tribunal was also unable to accept that the applicant would be unable to pay the social compensation fee for her child.[3]
[1] CB164 [87]
[2] CB164 [87]
[3] CB168 [105]
The applicant seeks judicial review of the Tribunal’s decision. The grounds on which she relies are set out in document attached to the application and titled “Attachment to Grounds of Application”. That document has two headings, namely “Orders sought by Applicant”, and “Grounds of the Application”. At the hearing, I requested the translator to translate to the applicant each paragraph appearing under each of these headings, and then invited the applicant to make submissions in relation to that paragraph.
“Grounds of the Application”, paragraph 1 – fear of persecution because of Christian faith
In paragraph 1 of the “Grounds of the Application”, the applicant states:
I am a Chinese student and have committed Christian faith. I have been persecuted by Chinese government and have a fear of return to origin due to my hard experience.
This paragraph does not disclose any reasonably arguable ground of review. At the hearing, however, the applicant stated she had been arrested in China twice, that it would be very dangerous for her to return to China, and that religious persecution is happening in China. The applicant made no further submissions along these lines after I informed the applicant that this Court cannot determine whether the applicant will or will not be persecuted in China, but that its only role was to determine whether the Tribunal made any legal error in the way it dealt with her claim.
The applicant then claimed, however, that the interpreter who translated her evidence before the Tribunal mistranslated two expressions. The first was the mistranslation of “recovery bible” as “revised bible”.
It appears that the applicant’s submission relates to a mistranslation the applicant had claimed to the Tribunal occurred when she was interviewed by the delegate, not when she gave evidence to the Tribunal. The applicant’s submission was the subject of correspondence that passed between the Tribunal and the applicant after the second hearing day before the Tribunal.
The correspondence was initiated by the Tribunal sending to the applicant a letter dated 6 July 2012 in which the Tribunal stated:[4]
At the Department interview you demonstrated only a limited knowledge of the local church. For example, you were unable when asked by the delegate, to name the version of the Bible used by your church and referred to the ‘revised’ version. When told by the delegate that the local church use the Recovery version of the Bible, you stated that you had read the Recovery version of the Bible but were unable to recall any details from it.
[4] CB125 at 126
The applicant responded by letter dated 25 July 2012 in which the applicant stated:[5]
In the first interview, I was asked the question about what type of Bible we used. I answered that we used the New Testament Bible, but I didn’t know why the interpreter would interpreted [sic] as Revised Bible. Also about “Chengxing God’s words”, the interpreter didn’t even mention the word [sic] Chengxing God’s words. The interpreter told me it was about “Morning..” [sic], I took it as you meant that our church recommended its members to pray to God about the transport early in the morning after got up [sic]. This was truly the interpreter’s mistake and I was suspected for not knowing what I believed in or being untruthful, I just felt so wrongly blamed.
[5] CB130-131
The Tribunal referred to the applicant’s response in its reasons:[6]
The Tribunal has considered the applicant’s response to this issue put to her in the 424A letter but does not accept that the interpretation issues explain the discrepancy in her responses at the delegate’s interview and the Tribunal hearing. The Tribunal finds that the evidence given to the Tribunal was significantly more detailed and indicates that the applicant acquired the knowledge following the interview in order to strengthen her refugee claims.
[6] CB166 [96]
There is nothing in the material that suggests that the words “recovery bible” had been mistranslated to the Tribunal as “revised bible”, or mistranslated at all. That is made clear in the Tribunal’s reasons where the Tribunal noted that the applicant said that the local church in Lidcombe “use the Recovery version of the Bible”.[7]
[7] CB151 [45]
The second mistranslation the applicant claims occurred related to the interpreter failing to convey to the Tribunal that the police who detained and interrogated the applicant did not wear uniforms. In my opinion, there is nothing in the Tribunal’s reasons which suggests that the Tribunal referred to the police whom the applicant claimed arrested her as being dressed in uniform, or that the Tribunal attached any significance to whether the police were or were not in uniform.
Even if, however, there was a mistranslation, that by itself would not have resulted in the Tribunal making a jurisdictional error. First, before me the applicant said that, at the time of the hearing, she was aware of the mistranslations which she identified to the Court, yet she did not try to correct them. Her explanation before me for not doing so was that her English was not very good. I do not find that explanation satisfactory. If the applicant’s English was good enough for her to understand there was potentially at least a mistranslation, her English should have been good enough for her to have raised with the interpreter the concerns she had with the translation. Secondly, the applicant did not put into evidence the transcript of the hearing before the Tribunal, even though the Court directed the filing of a transcript if a party intended to rely on what was said before the Tribunal, and the applicant was aware the Court had so directed. The applicant’s explanation for not complying with the Court’s direction was that she did not have money. That, too, is not a sufficient answer. At the very least, it was open to the applicant to put on an affidavit setting out her recollection of what was said before the Tribunal. Third, to “establish jurisdictional error on the basis of interpreter error or the standard of interpretation it must be shown that the standard of interpretation at the Tribunal hearing was so incompetent that the applicant was prevented from giving his evidence or that errors in interpretation were material to the Tribunal’s conclusions”.[8] The applicant has not demonstrated, and, in my opinion, there are no grounds for contending, that the translation errors asserted by the applicant manifested such incompetence as to have prevented the applicant from giving her evidence, or that the claimed errors were material to the Tribunal’s conclusions.
[8] SZOYD v Minister for Immigration [2012] FMCA 316
Paragraph 1 of the “Grounds of the Application” fails.
“Grounds of the Application”, paragraph 2 – active involvement in local church
In paragraph 2 of the “Grounds of the Application”, the applicant states:
As a member of Local Church, I have been actively involved in church practice, presenting loyal attitude to my religion, and taking action on spreading gospels.
The applicant submitted that, contrary to the Tribunal’s conclusions, she was active in church activities; she went to other churches before she found the local church, and she participated in other events, like spiritual training, and spreading the gospels to China.
This submission only traverses the Tribunal’s conclusions and for that reason discloses no arguable claim of jurisdictional error. Paragraph 2 of the “Grounds of the Application”, therefore, also fails.
“Grounds of the Application”, paragraph 3 – second applicant’s claim
In paragraph 3 of the “Grounds of the Application”, the applicant states:
I am not married and have an Australian born [child] with me now. My marital relationship has been denied by family and I have no access to home in origin. I lack financial support from society and family, having huge difficulty dealing with penalty imposed by family planning authority. The financial difficulty and psychological pressure will no doubt amount great stress to harm my wellbeing and make me difficult to make a normal life and child care in origin.
In support of this ground, the applicant submitted that she dare not go back to China because she will face a lot of economic pressure. She also submitted that the social compensation fee she will have to pay was too much for her. The applicant indicated she wished to tell the court “something that’s a bit long” about her ability to pay back the social compensation fee. I informed the applicant, however, that, although I was prepared to hear what the applicant wished to say, what the applicant wished to say would be of no use to her because it was not the Court’s role to disagree with the Tribunal; the Court’s role was to consider whether the Tribunal carried out its tasks in accordance with the law. The applicant put no further submissions in support of this ground.
Paragraph 3 of the “Grounds of the Application”, and the submission the applicant made before me, therefore, discloses no arguable grounds of review and also fails.
“Orders sought by Applicant,” paragraph 1 – failure to consider claim based on religion
In paragraph 1 of the “Orders sought by Applicant”, the applicant states:
I disagree with Immigration and RRT’s decision because they failed to carefully consider my religious background and involvement of local church which caused me danger in origin.
I interpret this passage as a claim that the Tribunal failed to consider the applicant’s claims based on her religious background and her church activities in Australia. In my opinion, that claim cannot be made out. The Tribunal did consider the applicant’s claims.
The Tribunal set out in detail the matters on which the applicant relied for a protection visa as claimed in the applicant’s written statement which formed part of her application to the Minister for a protection visa;[9] the Tribunal listened to the recording of the applicant’s interview by a delegate of the Minister, and summarised in detail the substance of what the applicant said at that interview;[10] and the Tribunal set out the evidence the applicant gave at the hearings before the Tribunal on 1 June 2012[11] and 19 June 2012, including the questions the Tribunal asked of the applicant, and the answers the applicant gave.[12]
[9] CB142-144 [23]
[10] CB144-147 [24]
[11] CB147-150 [25] –[39]
[12] CB150-156 [40] –[58]
The Tribunal’s detailed summary of the applicant’s claims and the evidence she gave before the delegate and before the Tribunal indicate the Tribunal understood the essential elements and details of the applicant’s claims. These were that the applicant first became interested in a family church in China in 2004 through her cousin;[13] in 2005 the activities of the church in which the applicant participated had become known to the police which led to the participants, including the applicant, being arrested;[14] the police subsequently interrogated the applicant at her school about her participation in the church;[15] the applicant resumed her participation in church gatherings, but this again led to her being arrested, and, this time, being corporally punished;[16] the applicant’s parents disapproved her participating in the church, but agreed with the applicant’s proposal that the applicant study overseas;[17] the applicant arrived in Australia on 25 October 2005 on a student’s visa, attended a number of churches, but she did not find a church that was suitable to her;[18] and in January of 2011 the applicant discovered by chance a local Shouter’s church at Lidcombe that was suitable to her.[19]
[13] CB142 [23b.]
[14] CB142 [23c.]
[15] CB142 [23d.]
[16] CB143 [23e.]
[17] CB143 [23f.]
[18] CB143 [23g.], CB145 [24f.]
[19] CB145 [24h.]
The Tribunal also questioned the applicant. It asked the applicant whether she had any additional information to that which she provided to the delegate.[20] The Tribunal also asked the applicant about the preparation of her visa application;[21] when the applicant became a Christian;[22] when the applicant began to attend the weekly church gatherings;[23] why the police came to the applicant’s school and whether the applicant had been physically hurt at school;[24] the second time the applicant was arrested, and what happened after the arrest;[25] the applicant’s attendance at church in Australia;[26] how the applicant came to find the local church in 2011;[27] what happens when the applicant attends the services of the local church;[28] how the bible used in the local church is different to other bibles;[29] why the applicant believed the local church is similar to the gatherings the applicant attended in China;[30] the applicant’s familiarity with the Little Flock church in China;[31] the applicant’s understanding of the term “pray reading”;[32] when the applicant was baptized;[33] and the applicant’s claim of sending religious materials to her cousin in China.[34]
[20] CB147 [27]
[21] CB147 [28]
[22] CB148 [31]
[23] CB148 [32]
[24] CB149 [35]
[25] CB149-150 [36] [37]
[26] CB150-151 [43]
[27] CB151 [44]
[28] CB151 [45]
[29] CB152 [45]
[30] CB152 [47]
[31] CB152 [49]
[32] CB152 [50]
[33] CB152 [51]
[34] CB153 [54]
The Tribunal’s reasons for not accepting the applicant’s claims that she was detained in China, or that she is a genuine local church follower also indicate that the Tribunal considered the applicant’s claims about her religious background and involvement in the local church. The Tribunal did not accept the applicant’s claims about her religious practices in China because it considered the applicant’s descriptions of the church activities and gatherings in China to be vague and lacking in detail;[35] the Tribunal considered the applicant gave inconsistent evidence, on the one had stating she began to attend weekly meetings of the church in China, yet being away at a boarding school for senior high school students and came home once a week or fortnight;[36] and the Tribunal found the applicant’s account not credible.[37]
[35] CB164 [88]
[36] CB164 [89]
[37] CB164-165 [90], [91]
Additionally, the Tribunal did not accept the applicant was a genuine follower of the local church in Australia because the applicant, having arrived in Australia in 2005, found the church in 2011, and only by coincidence;[38] the Tribunal found the applicant’s evidence of the churches she attended as not being consistent with her claims as to her Christian background in China, noting that on “the applicant’s own evidence, the Tribunal funds she did not actively look for a Christian church in the six years since she came to Australia and only came upon the local church by chance”;[39] and the applicant manifested a greater familiarity with the local church publications and practices before the Tribunal than she showed before the delegate.[40]
[38] CB165 [94]
[39] CB165 [94]
[40] CB165-166 [96]
“Orders sought by Applicant”, paragraph 2 – failure to consider religious commitment in Australia
In paragraph 2 of the “Orders sought by Applicant”, the applicant states:
RRT did not consider my commitment and actual practice of religion in Australia.
In my opinion, as I discuss in paragraph 28 of these reasons, the Tribunal did consider the applicant’s claimed commitment to and practices of religion in Australia.
The applicant submitted she did not know what the Tribunal meant by saying that she did not participate or actively participate in church activities. She submitted she went to church services and went to major events. She does not know what she needed to do to satisfy the Tribunal member.
This submission seeks to traverse the Tribunal’s conclusions and, for this discloses no reasonably arguable claim of jurisdictional error. In my opinion, it was open to the Tribunal to find, for the reasons it gave, that the applicant did not have a genuine commitment to her local church.
“Orders sought by Applicant”, paragraph 3 – failure to consider second applicant’s claim
In paragraph 3 of the “Orders sought by Applicant”, the applicant states:
RRT failed to prudently consider my Australian born child’s interest and family’s denial to our relationship, in particular our poor ability coping with financial hardship and social compensation fee imposed by family planning law if we return to our origin.
In my opinion, the Tribunal did consider the second applicant’s claim based on his not being entitled to be registered unless a social compensation fee was paid. The Tribunal recorded the claims the applicant made on behalf of the second applicant in her statement which she provided to the delegate[41] and during her interview with the delegate.[42] The Tribunal asked the applicant questions about the second applicant’s claims, and in particular put to the applicant country information about the amount of the compensation fee that would be payable to register the second applicant, and that an unregistered child may be eligible to access some medical and educational services.[43] The Tribunal considered country information on family planning laws in Fujian Province,[44] household registration requirements and education, medical care, and welfare,[45] and discrimination against unregistered children;[46] and considered and gave reasons for not accepting the second applicant’s claims.[47] In that regard, the Tribunal found that the amount of the social compensation fee the applicant is likely to be required to pay to register the second applicant is a maximum of 7,427 Yuan, and the Tribunal was not satisfied that the applicant would not be able to pay the social compensation fee, either through her working or through family support.[48]
[41] CB143 [23j.]
[42] CB146 [24n.]
[43] CB154 [55]
[44] CB159-160 [68] - [72]
[45] CB160-161 [73] – [75]
[46] CB161-162 [76] – [79]
[47] CB167-168 [105]
[48] CB167-168 [105]
The applicant submitted that the Tribunal member, not having experience of the family planning in China, could not quite understand the terrible things that may happen if the family planning policy is not observed. This submission discloses no arguable ground of review. The applicant further said that she will be unable to pay the penalty if her child returns to China and he will be unable to enter hukou registration and will be unable to go to school and this will affect all his life.
The applicant’s submissions do not disclose any reviewable error by the Tribunal.
“Orders sought by Applicant”, paragraph 4 – failure to consider applicant’s evidence
In paragraph 4 of the “Orders sought by Applicant”, the applicant states:
RRT failed to consider my statements, explanation, and evidence provided to the questions raised as a whole.
In my opinion, the summary set out above of what the Tribunal did demonstrates the Tribunal affirmed the delegate’s decision only after it considered the applicant’s statements, explanation, and evidence.
“Orders sought by Applicant”, paragraph 5 – unfair and unreasonable
In paragraph 5 of the “Orders sought by Applicant”, the applicant states:
RRT may treat my case unfair and unreasonable and failed to give me enough chance to common [sic: presumably means “comment”]
The applicant made no submission in support of this ground.
In my opinion, it has no merit. The Tribunal informed the applicant that it had to consider whether the applicant’s conduct in Australia had been engaged in solely for the purpose of making a refugee claim, as well as consider her motivations in joining the church and sending materials to her cousin in China. The Tribunal also informed the applicant that it must consider whether it accepted the applicant’s truthfulness about these matters, as well as consider the applicant’s delay in applying for a protection visa.[49]
[49] CB155 [56]
In addition, the Tribunal sent to the applicant a letter in which it identified three matters on which the Tribunal might rely in affirming the delegate’s decision, and invited the applicant to respond. One of the matters was the difference between the knowledge the applicant displayed about the local church before the delegate and the knowledge she displayed before the Tribunal. Another of the matters was the applicant’s ability to work in Australia indicating an ability on her part to also work in China.
Conclusions and disposition
None of the grounds on which the applicants rely for challenging the Tribunal’s decision is made out. In my opinion, the Tribunal conducted its review of the applicants’ claim according to law.
I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.
I will also order that the Minister’s title as it appears in the application be amended to reflect his current title.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 4 October 2013
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