SZTTA v Minister for Immigration
[2015] FCCA 426
•27 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTTA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 426 |
| Catchwords: MIGRATION – Review by Refugee Review Tribunal (Tribunal) – whether Tribunal conducted the review according to the natural justice hearing rule – whether the Tribunal made an error in relying on country information – whether there was anything before the Tribunal to suggest the applicant would be unable to properly express himself or properly give evidence – whether words or expressions used in the first of two hearings before the Tribunal had been misinterpreted and if so whether the Tribunal was aware or ought to have been aware of the misinterpretations – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s. 422B, 422B(1), 424A |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZTTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 17 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2015 |
REPRESENTATION
| Applicant appeared by video link from Perth and assisted by an interpreter. |
| Solicitors for the Respondents: | Ms N Blake of Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 17 of 2014
| SZTTA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a national of the People’s Republic of China. He claims that if he is returned to China he will face persecution because of his Christian faith.
That claim was rejected both by a delegate of the first respondent (Minister) and by the second respondent (Tribunal). The Tribunal rejected the applicant’s claim because, although it accepted the applicant was a Christian and that the applicant intended to practice as a Christian in an underground Christian church if he returned to China, the applicant would not face a real chance of serious harm or a real risk of significant harm because of his Christian faith and intended practice.
Before I consider the grounds on which the applicant relies, it will be necessary briefly to describe the applicant’s claims for protection, and the reasons for which the Tribunal did not accept them.
The applicant’s claims and the Tribunal’s reasons
In his application for a protection visa,[1] the applicant claimed that since his childhood he was a member of an underground Christianity group; that in 1998, the police raided a service and assaulted those who were present, including the applicant; the applicant suffered an eye injury as a result of the assault and acquired Hepatitis C, possibly from blood on a knife police used during the raid; when he was sixteen, the applicant’s parents decided to send the applicant to Australia hoping he would have a better environment to pursue his religious beliefs; after he arrived in Australia he joined a church; in January 2013, after he decided to apply for a protection visa, he received reports from his parents about Police visits to homes, and in particular, to his home, where church gatherings take place. The applicant also claimed that, since he arrived in Australia, he had been regularly attending a Chinese Congregational Church.
[1] CB31-35
The Tribunal found the applicant’s evidence in relation to the police harassment of the gatherings he attended to be confused, inconsistent and unpersuasive;[2] it found the applicant’s evidence in relation to the cut he received which gave him Hepatitis to be unpersuasive;[3] it found the applicant’s evidence in relation to his diagnosis to be inconsistent and unpersuasive;[4] and it found the applicant’s evidence in relation to his being falsely accused of having swine flu and isolated as a result in punishment for his Christian beliefs to be unpersuasive.[5] The Tribunal also found that the applicant’s delayed lodgement of his application for a protection visa undermined his claims.[6]
[2] CB179, [30]
[3] CB179, [32]
[4] CB180, [34]
[5] CB182, [44]
[6] CB183, [48]
In light of these findings, the Tribunal was not satisfied the applicant had been truthful in his account of the claimed events in China, or that the applicant and his family belong to an underground Christian church that is regularly targeted by the Chinese authorities, or that he was injured during a raid by the authorities during a gathering he was attending as a child, or that he contracted Hepatitis in China, or that the applicant and his family were falsely accused of having swine flu as a punishment for their religion, or that he has been discriminated against, threatened, mistreated or harmed in China as a result of his religion.[7]
[7] CB183, [49]
The Tribunal accepted the applicant had been regularly attending church in Australia since January 2008 and that he was raised as a Christian in China.[8] The Tribunal further found that the applicant would want to practice his Christian beliefs if he were to return to China, and that he would do so by attending an underground church. [9] The Tribunal, however, concluded on the basis of the country information it identified that official religious policy has been applied relatively liberally in Fujian, and there was nothing before the Tribunal to indicate the situation is different in the applicant’s specific village.[10]
[8] CB184, [52]
[9] CB184, [53]
[10] CB184, [54]
The Tribunal concluded as follows:[11]
In light of the country information and the Tribunal’s finding that the applicant has not suffered any past harm in China despite being raised as a Christian, the Tribunal finds that there is not a real chance the applicant will face serious harm in the reasonably foreseeable future if he returns to China and continues to practice his faith as a Christian or because of his family, their religion or their participation in an underground church.
[11] CB184, [55]
The Tribunal also concluded it was not satisfied there are substantial grounds for believing that there is a real risk that the applicant would be subject to significant harm if he returned to China.[12]
[12] CB185, [58]
Ground 1 - Failure to assess claim in accordance with s.422B
The applicant’s first ground is that the Tribunal “failed to assess my review application in accordance with s422B of the Migration Act 1958”. At the hearing the applicant, who is not legally represented, made no submission in relation to this ground.
Section 422B(1) of the Migration Act 1958 (Cth) (Act) provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. I will take this ground to be a claim that the Tribunal did not conduct its review in accordance with the provisions of Division 4 of Part 7.
This ground, unparticularised as it is, discloses no arguable claim of jurisdictional error. In any event, there is no suggestion on the material before the Court that the Tribunal did not conduct its review of the delegate’s decision in accordance with Division 4 of Part 7 of the Act. The Tribunal accurately set out the claims for protection the applicant made before the delegate; the Tribunal invited the applicant to appear before it and, when he did the Tribunal asked questions of the applicant; after the hearing, the Tribunal forwarded to the applicant a letter pursuant to s.424A of the Act in which the Tribunal identified six items of information which it informed the applicant might be information on which, subject to comments the applicant might wish to make, the Tribunal consider as reasons for affirming the delegate’s decision. Further, the Tribunal gave reasons for not accepting the applicant’s claims.
Ground 1 of the application, therefore, is not made out.
Ground 2 - Failure to correctly discern country information
The applicant’s second ground is as follows:
The Tribunal . . . failed to discern correctly the independent country information in relating [sic] to the persecution on Underground Church Members in China, especially in FuJian [sic] Province.
When asked whether the applicant wished to make any submissions in relation to this ground, the applicant said that the Tribunal relied on information that was available over the Internet; yet such information is often superficial and incorrect. Further, no country would portray its ugly side, and China, being careful to preserve its international status, would not wish to expose any news or information in relation to persecution or religious persecutions through the Internet for other countries’ knowledge.[13]
[13] T6.10-20
This submission does not disclose any jurisdictional error by the Tribunal; it only manifests disagreement with the Tribunal’s reliance on the country information to which the Tribunal gave credit. As was said by the Full Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[14]
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.
[14] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin, Lander JJ)
Ground 2, therefore, is not made out.
Ground 3 – Incorrect credibility finding
The applicant’s third ground is:
The tribunal [sic] made a wrong judgment on the applicant’s credibility as it failed to take into account the fact that [the applicant] had been interned at detention centre for a quite extended period of time and the length incarceration has significantly affected his ability of answering the critical questions raised by the member during the Tribunal hearing.
At the hearing, the applicant stated that his being in detention affected his ability to express himself. The applicant also said that it was hard for him “to express totally what I want to say to you at this moment”.[15]
[15] T7.5-10
There is nothing in the Tribunal’s reasons, or in the material that is before the Court that suggests the applicant stated to the Tribunal that he was unable to properly express himself or give evidence or otherwise participate in the hearing. There is nothing in the material before the Court that indicates the Tribunal ought to have become aware that there was a possibility the applicant had some difficulty in expressing himself or giving evidence or in otherwise presenting the case he desired to present to the Tribunal.
At the hearing before me, the applicant submitted that the interpreter at the hearing before the Tribunal made “a lot of mistakes in interpreting what I said”.[16] The applicant identified a number of what he said were translation errors. This does not form part of any ground of review. It does not, however, disclose any jurisdictional error by the Tribunal, even if, as the applicant submitted before me, the interpreter made the errors he claims the interpreter made.
[16] T8.5-10
The Tribunal, in its reasons, set out the history of the hearing before it. It notes that when the matter was first heard, the applicant’s representative raised concerns about the quality of the interpreter. The Tribunal said it would attempt to find an alternative interpreter to complete the hearing. While the Tribunal was attempting to find an alternative interpreter, the applicant said he was not feeling well. The Tribunal adjourned the hearing, but said that it intended to rely on the evidence that had already been given. The Tribunal provided a copy of the recording of the hearing to the applicant’s representative, and the representative, who was an accredited interpreter, was invited to make submissions about any errors. The applicant appeared before the Tribunal at a later day. The applicant was represented by his migration agent, and also had the assistance of an interpreter. No issues were raised about the earlier interpreting.
Ground 3, therefore, is not made out.
Ground 4 - Stress at hearing before Tribunal
The applicant’s fourth ground is as follows:
Worse still, due to stress and nervousness as well as fear of being removed back to China, some information the applicant provided to the tribunal [sic] in the final hearing were contradicted to the refugee claims he made. Therefore, as far as natural justice is concerned [the applicant] ought to be given another chance to present his case to the Tribunal.
Considered alone, the ground appears to be that, due to stress and nervousness, the applicant provided information to the Tribunal that contradicted the refugee claims the applicant made. From the submissions the applicant made at the hearing before me, it appears that the applicant contends that words the interpreter at the second hearing interpreted contradicted the same words that the different interpreter interpreted at the first hearing before the Tribunal. The applicant identified a number of these contradictions. One was the first interpreter incorrectly interpreted the applicant’s words “around 20 people” as “more than 20 people”.[17] The second example the applicant gave is his stating in Chinese the word “defamation”, although the only submission the applicant made about the interpretation of that word is “I don’t know how it was interpreted in English”.[18]
[17] T8.40
[18] T9.45
There are a number of reasons why these submissions disclose no jurisdictional error. First, there is no evidence to support the submissions. The applicant has not put before the Court a transcript of the hearings before the Tribunal. The applicant has not put on any affidavit in which he deposes to that which he has asserted in his submissions. Second, as I have noted above, the Tribunal provided the applicant and his representative an opportunity to make submissions about any issue dealing with the interpretation of the first hearing before the Tribunal. No such submissions were made. It cannot, therefore, be concluded that the Tribunal was aware, or ought to have been aware, of any error in interpretation. Finally, there is nothing to suggest that the asserted differences of interpretation played any role, material or otherwise, in the Tribunal’s decision to affirm the delegate’s decision.
Ground 4, therefore, also fails.
Conclusion and disposition
None of the grounds on which the applicant relies are made out. I propose to order, therefore, that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 27 February 2015
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