SZUQJ v Minister for Immigration

[2016] FCCA 1476

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUQJ & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1476

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether there were errors in interpretation – whether the Tribunal failed to take into account position of child of the first and second applicants even though child not a party to the application for review before the Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212

First Applicant: SZUQJ

Second Applicant: SZUQK

Third Applicant: SZUQL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTATIVE APPEALS TRIBUNAL

File Number: SYG 1850 of 2014

Judgment of: Judge Manousaridis

Hearing date: 3 June 2015

Delivered at: Sydney

Delivered on: 23 June 2016

REPRESENTATION

The first applicant, assisted by an interpreter, appeared in person and on behalf of the second and third applicants

Solicitors for the Respondents: Ms F Taah of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1850 of 2014

SZUQJ

First Applicant

SZUQK

Second Applicant

SZUQL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first and second applicants, citizens of the People’s Republic of China (China), together with their child, the third applicant, seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visa).

Claims for protection

1. The first and second applicants arrived separately in Australia on student visas in 2007. They met in October 2010 and began cohabiting in February 2011. In February 2012 the first applicant gave birth to the third applicant. The second applicant is the father of the third applicant.

2. The applicants applied for Protection visas on 31 May 2012. By the time of the first hearing before the Tribunal, the first applicant had given birth to a second daughter. At the second hearing before the Tribunal, the second applicant said that, although he does believe in Christianity, he was not advancing any independent claims for reasons of religion.[1]  

   [1] CB213, [74]

3. In her application for a Protection visa, the first applicant (applicant) claimed she had a well-founded fear of persecution because of her having a child out of wedlock, and because of her Christian faith.[2] The applicant fears financial penalties will be imposed on her and the second applicant for having a child out of wedlock; her daughter will be discriminated against as a “Black Child”; and the applicant and second applicant will be unable to pay any social compensation fee that may be imposed and, as a result, the third applicant will not have access to education and health services if they returned to China. The applicant also claimed that she and her family were adversely impacted by family planning regulations in China because her parents wanted a boy but instead had three girls.

   [2] CB92-98

4. The applicant also claimed she has a well-founded fear of persecution because of her religious beliefs. The applicant said she was not a real Christian before she made a trip from Australia to Fujian province in January 2011, but it was only after this trip that the applicant became a Christian. The applicant claimed she took part in family church activities, studied the Bible, prayed, and sang hymns. As a result of these activities, the applicant’s religious beliefs became stronger. The applicant claimed she continued attending church in Australia when she returned in February 2011.

5. The applicant also claimed she mailed Christian materials to China. Police in China arrested her mother because of family church activities and the religious materials the applicant mailed to China. In May 2011 the applicant was informed her mother had been set free after her sister paid a 7,000RMB fine. The applicant claimed her mother was not allowed to travel to other places and that her mother was directed to tell the applicant to return from Australia for interrogation. As a result, the applicant fears she will be imprisoned if she returns to China.

6. The applicant, second applicant, third applicant, and the applicant and second applicant’s second child appeared before the Tribunal on 29 October 2013 and 6 May 2014 to give evidence and present arguments.

Tribunal’s reasons

1. The Tribunal was not satisfied the applicant has a subjective fear of persecution.[3] The Tribunal relied on the applicant’s student visa having been cancelled after she became pregnant with the third applicant and stopped going to classes in September 2011,[4] yet her not applying for a review of the cancellation of her visa or otherwise making any inquiry of her migration status,[5] and her remaining unlawfully in Australia from November 2011, when her student visa was cancelled, to May 2012, when the applicant lodged her application for a Protection visa.[6] The Tribunal also relied on the length of the delay in the applicant’s applying for a Protection visa.[7]

   [3] CB218, [85]

   [4] CB217, [82]

   [5] CB217, [82]

   [6] CB218, [84]

   [7] CB218, [84]

2. The Tribunal also did not accept the applicant was a genuine practising Christian.[8] The Tribunal relied on a number of matters. The applicant was initially unaware of her denomination of Christianity, ultimately claiming she was Anglican;[9] and she had a limited knowledge of Christianity. The Tribunal found “her knowledge of Christianity was superficial, lacked spontaneity and was the recitation of memorised information, rather than demonstrative of a genuine belief in Christianity”.[10] The Tribunal also did not accept the applicant sent religious material to China, or that her mother had been detained, or that authorities in China have any interest in the applicant or her family for reasons of religion.[11]

   [8] CB220, [102]

   [9] CB218, [88]

   [10] CB219, [98]

   [11] CB220, [106]

3. The Tribunal did not accept the applicant’s claims based on her having had two children out of wedlock.[12] The Tribunal was satisfied that, as a returning student couple, the applicants would be in a position to pay any social compensation fee if one were to be levied, and that the applicant and second applicant’s children would be registered and have access to education and social assistance.[13]

   [12] Only one child, the third applicant, was party to the application for a Protection visa and subsequent application for judicial review.

   [13] CB221, [110]

Grounds of application

1. The application for review contains two grounds of application. The first is that the Tribunal’s decision was “affected by poor interpretation during the second hearing”. In relation to this ground the applicant, who was not legally represented, submitted that, although she did not have the audio recording of the hearing before the Tribunal, the recording “has interpretation mistakes which could support my claim that there are interpretation errors”.[14] I asked the applicant how she expected to show from the tape that there would be interpretation errors. The applicant said she remembered the interpreter saying words to the effect that he did not know “how to interpret those names, places and some terms from the Bible”.[15] The applicant informed me, however, that, although she was aware of the interpreter having said this during the hearing before the Tribunal, she said nothing to the Tribunal member.

   [14] T3.30

   [15] T3.45

2. The Minister submitted the Tribunal’s reasons for decision record the Tribunal member asked extensive questions about the applicant’s knowledge of Christianity, yet there is nothing in those reasons to indicate there were any difficulties with interpretation.

3. There are a number of difficulties with the first ground, and the applicant’s submission. First, from the Tribunal’s reasons for decision, it appears that most, if not all, questions relating to the applicant’s claims she was Christian occurred during the first Tribunal hearing.[16] Second, there is nothing on the face of the Tribunal’s reasons for decision that the interpreter informed the Tribunal that he did not know, or was unable to interpret names, places, or terms from the Bible. Further, the Tribunal’s reasons record questions the Tribunal asked of the applicant, and the applicant’s answers, which appear to reflect an understanding by the applicant of the Tribunal’s questions, and an understanding by the Tribunal of the answers the applicant gave. I am not satisfied, therefore, there were any errors of interpretation, or that the interpreter was unable to interpret names, places, or terms from the Bible.

   [16] CB208-210, [35]-[48]

4. Even if there were any such errors, that would not necessarily mean the Tribunal would have made a jurisdictional error. Errors in interpretation would have that consequence if, because of the errors, the hearing was not fair. The relevant principles were stated by Allsop CJ in SZRMQ v Minister for Immigration and Border Protection:[17]

   [17] [2013] FCAFC 142; (2013) 219 FCR 212 at [5], [9], [10]

   [5] Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.

   . . . .

   [9] The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   [10] How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair.

5. Even if, as the applicant submits, the interpreter was unable to interpret names, places, and terms of the Bible, the material before me is incapable of raising an arguable case that this rendered the second hearing unfair. The applicant has not identified the names, or places, or terms the interpreter said he could not interpret. There is nothing to say that any of those names, places, or terms are names, places, or terms from the Bible which the Tribunal recorded in its reasons for judgment.

6. Ground 1, therefore, fails.

7. The second ground of application stated is that the Tribunal “failed to take into account relevant considerations”. During the hearing before me the applicant identified the considerations she claims the Tribunal failed to take into account, and that was the fact the applicant had a second child. The applicant submitted:[18]

   I remember in my materials I mentioned my second child. But RRT failed to consider the situation of my second child and instead, the tribunal only considered of our three people.

   [18] T5.45

8. It is apparent from the “RRT Hearing Record” completed for both the 29 October 2013 and 6 May 2014 hearings before the Tribunal that a second child, who was not party to the application, accompanied the applicants on both occasions.[19] Further, after the hearing of 6 May 2014, the applicant provided to the Tribunal a two-page letter in which the applicant referred to her two children.[20]

   [19] CB171; CB197

   [20] CB200-201

9. There is no doubt the Tribunal was aware the applicant had a second child. There is also no doubt that the Tribunal assessed the applicant’s claims concerning the payment of the social compensation fee on the basis that the applicant had two children, not one child. That is clear from the opening paragraph of that section of the Tribunal’s reasons that dealt with the family planning laws in China. The Tribunal stated that it “next considered the applicants’ claims regarding their having a child born out of wedlock and the fact that they now have a second child”.[21] Further, the Tribunal concluded this part of the applicant’s clams as follows:[22]

   In relation to the applicant’s children, the Tribunal finds that they with the payment of the social compensation fees would not face discrimination amounting to persecution and that they would be able to access social and public services as would any other children in the PRC.

   [21] CB221, [108]

   [22] CB223, [116]

10. That is not, however, the end of the matter. The applicant’s submission directs attention to the “materials” which the applicant provided to the Tribunal. It is reasonably clear that the relevant materials to which the applicant intended to refer is the two-page letter the applicant sent to the Tribunal on 12 May 2014,[23] which was after the hearing of 6 May 2014, but before the Tribunal made its decision on 29 May 2014. In that letter, the applicant requested that she be permitted to make “2 more point about my case before you make a decision”.[24] The first point was “[s]ex discrimination is a big problem in my hometown”.[25] There, the applicant referred to people “like boy more than girls”.[26] The applicant said:[27]

    After I have 2 girls, my partners mom said to me, “you have to keep having babies until you bring a boy for family”, to carry on my partner’s ancestral line. But she won’t consider about the big fines and my life. Even my own parents they not happy too just because I have 2 girls. How can I have anymore baby under chinese Government control. one side my partner’s mom push me have boy the other side from Chinese Government they not allow me have more. I’m a pathetic woman in this situation. No one will help me look after my kids except I have boy. If only depend on my partner’s income it barely maintain the daily expense. How could we pay any fines in that situations. I make an example for you. In China, 3000RMB wages can earn in my partner situation roughly. You know like blue swiming’s [sic] price around 120RMB ½ kilo very expensive to live in China.

    [23] CB200-201

    [24] CB200

    [25] CB200

    [26] CB200

    [27] CB200

11. The second point the letter relates to the “interview in immigration”.[28] A complaint is made about the “lady who interviewed me”.[29] That appears to be a reference to the delegate’s interview of the applicant.

    [28] CB200

    [29] CB200

12. When I initially read the first of the two points made in the applicant’s letter, I thought the applicant intended to make a claim that her daughters would be discriminated against because persons in the applicant’s hometown preferred boys. On a further reading of this part of the applicant’s letter, however, I am satisfied the applicant intended to make no such claim. The gist of the complaint is that the applicant would not receive assistance unless she also has a boy, which she is not permitted to do under Chinese law. That, in turn, formed part of the claim the applicant made that she and the second applicant would be unable to afford to pay the social compensation fee. I am satisfied the Tribunal considered that claim, and did so by reference to both of the applicant’s children.

13. The second part of the applicant’s letter, which referred to the delegate’s interview of the applicant, did not merit any specific attention by the Tribunal. It is true the Tribunal referred to the delegate’s findings,[30] but it did so as part of its recitation of the history of the applicant’s claims. It is also true the Tribunal asked the applicant to comment on the delegate’s finding that the applicant’s knowledge of Christianity was not commensurate with her being a genuinely practising Christian. The Tribunal, however, did not rely on any findings of the delegate.

    [30] CB206, [21]-[23]

14. Ground 2, therefore, also fails.

Disposition

1. I propose to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

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

Date: 23 June 2016