SZNUB v Minister for Immigration & Anor [2009] FMCA 1219 (25 November 2009)

Last Updated: 10 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUB v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1219

MIGRATION – Review of decision of RRT – where applicant’s grounds for suggesting Tribunal made a jurisdictional error are confused and not particularised.

Migration Act 1958, ss.424A, 425

Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 M175 of 2002 v Minister for Immigration [2007] FCA 1212 SZJZE v Minister for Immigration [2007] FCA 1653 SZBEL v Minister for Immigration [2006] HCA 63 Minister for Immigration v Eshetu [1999] HCA 21 VWST v Minister for Immigration [2004] FCAFC 286 NARE v Minister for Immigration [2003] FCA 554

Applicant:

SZNUB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1795 of 2009

Judgment of:

Raphael FM

Hearing date:

25 November 2009

Date of Last Submission:

25 November 2009

Delivered at:

Sydney

Delivered on:

25 November 2009

REPRESENTATION

For the Applicant:

In Person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1795 of 2009

SZNUB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. She arrived in Australia on 25 October 2006 accompanying her son and daughter under a (Subclass 580) student guardian visa. On 18 December 2008 the applicant applied for a protection (Class XA) visa. On 19 March 2009, following an interview, a delegate of the Minister refused to grant a protection visa. On 14 April 2009 the applicant applied for review of that decision from the Refugee Review Tribunal. The Tribunal invited the applicant to attend before it, which she did, together with some witnesses. Following the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (the “Act”). The applicant responded to that letter. On 8 July 2009 the Tribunal determined to affirm the decision not to grant the protection visa and handed that decision down on the same day.
2. The convention ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of religion. The applicant claimed that in about 2005 she became interested in the Christian religion and became involved with a small group of people in a house church. In about February 2005 they started having meetings in her house. In July 2005 a prayer meeting was interrupted by the PSB. The applicant and the other members of her group were arrested and placed in detention. The applicant said that she remained in detention longer than the others, and was there approximately a week. Eventually she obtained her release. She remained of interest to the PSB for some time thereafter. When she applied for a passport for the purposes of accompanying her children to Australia for education she was unsuccessful. Later, she managed to obtain a passport and a visa with the assistance of an agent. The applicant said that she fled from China because of her Christian views and her fears that should she return she would be the subject of persecution from the authorities.
3. Whilst in Australia, the applicant became involved in two churches. Firstly, the West Sydney Asian Christian Church where she was taken by a friend and then the Cabramatta Anglican Church Mandarin Bible Study Group. She produced documents from members of these churches including their pastors deposing to the applicant’s sincere Christian beliefs and continued involvement in the church. Some of the statements indicated that the applicant had told the witness about problems that she had had in China but none of them were able to give first hand evidence of what had occurred to the applicant there.
4. The Tribunal questioned the applicant upon her story. It discussed with her some inconsistencies between the evidence which she had given to the delegate and the information that was contained in her protection visa application. The applicant told the Tribunal that she had concerns about the translation of her interview with the delegate. The Tribunal found:
   • “[65] As advised to the applicant during the hearing and in the post s.424A letter, the Tribunal listened to the recording of the Department’s interview and the applicant confirmed that the interpreter was appropriate. Nor is there any indication at any time that the applicant had any difficulties with the interpreting, and she did not at any time raise any objections to the interpreter. In contrast to the findings of the delegate, the Tribunal considers that the applicant’s knowledge of aspects of Christianity was generally good and considers that the questions asked by the delegate anticipated an extremely high level of knowledge which may be difficult to articulate in an interview situation. ...the Tribunal is prepared to have no regard to any possible inconsistencies between the applicant’s oral evidence to the Department and her oral evidence to the Tribunal. Accordingly, the Tribunal has drawn no adverse inferences and made no adverse findings relating to any apparent inconsistencies between the applicant’s oral evidence to the Department and her oral evidence to the Tribunal.”
5. The Tribunal questioned the applicant about her detention. The applicant had said that she had been detained for a week. During the hearing she gave different evidence which seemed to suggest that her detention was for a lesser period. The Tribunal was not impressed with the applicant’s evidence in this regard stating at [63] [CB 140]:
   • “The Tribunal considers that the reason for the problematic nature of the evidence is that the applicant has not provided truthful evidence in relation to this issue and she was not detained for her involvement in an underground church in China.”
6. Another matter the Tribunal took up with the applicant was her claim that she had been monitored by the authorities following her release from detention. In this regard the applicant had given some evidence about the monitoring and had called her son to corroborate this. Unfortunately the son did not corroborate the evidence. He indicated that the mother had been required to report to the authorities at regular intervals whereas the applicant had indicated that she did not have to do this.
   • “[68] The Tribunal considers that the evidence relating to this issue is highly problematic. The Tribunal does not accept that the applicant’s son would be unfamiliar with the applicant’s circumstances, such that he would not know whether or not she was required to report to the authorities. The Tribunal is not satisfied that either the applicant or her son has provided truthful evidence in relation to this issue and considers that the applicant’s evidence in her statement, her oral evidence to the Tribunal and her post hearing statement is highly inconsistent and cannot be reconciled. The Tribunal considers that the reason for the inconsistent and problematic nature of the evidence relating to whether or not the applicant was ever required to report to the authorities is because it did not occur. Thus, the Tribunal does not accept that the applicant was subject to any monitoring in China as a result of her claimed religious beliefs”
7. The Tribunal was also concerned by the fact that the applicant had remained in this country for two years before applying for a protection visa. The applicant had told the Tribunal that she had been advised by her migration agent that making this application was a risky business and that she might be deported if she was not successful. She already had a visa so there was no point applying for a protection visa until that visa was about to expire. Some people may consider that this advice was not unreasonable or unrealistic but the Tribunal is the person who has to make a decision on this evidence and it concluded that a person in the applicant’s position would have applied earlier if she really had been in fear of persecution as a result of her religious views.
8. The Tribunal considered the applicant’s practice of Christianity or worship whilst in Australia and came to the view that it could not accept the applicant’s evidence that she had been attending church prior to 2008 and concluded that it could not be satisfied that her attendance was for a reason other than to strengthen her claim for refugee status. The Tribunal at [72 - 78] [CB 142 - 144] deals in some detail with the evidence that the applicant gave about her activities within Australia and the evidence given by the witnesses who gave statements on her behalf including the two pastors. The Tribunal concluded that the evidence of the pastors insofar as it was intended to relate to the actions of the applicant within China could be no more than a reporting of the history given to the witness by the applicant and gave those statements no weight. This is not one of those cases where the Tribunal has sought to apply the dicta in Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59. I am quite satisfied that the Tribunal considered the corroborative evidence before it came to a conclusion about the credibility of the applicant and it assessed that corroborative evidence in an appropriate manner and came to a conclusion about it that was available.
9. On 27 July 2009 the applicant filed an application in this court. The application had seven grounds. The first ground was that:
   • “The Tribunal failed to consider the Tribunal’s decision is likely to be affected by jurisdictional error by way of a breach of s. 424A of the Migration Act 1958.”

It is not clear from this ground exactly what the applicant is saying. I have noted that the Tribunal sent the applicant a letter under s.424A of 9 June 2009 and that she responded to it by providing further information and further witness statements. These are all dealt with in the Tribunal’s detailed decision. In the absence of any further particulars I am unable to assist the applicant with regard to this claim.

10. The second ground was that:
    • “The Tribunal failed to consider the first respondents invite the applicant for a hearing using the assistance of a different interpreter.”

I find this ground difficult to understand. If it is a complaint about the interpretation at the hearing before the Tribunal then this cannot be made to the court without some evidence to support it. Whilst inadequate interpretation can amount to a breach of s.425; M175 of 2002 v Minister for Immigration [2007] FCA 1212 per Gray J, a claim such as that must be proved. Middleton J said in SZJZE v Minister for Immigration [2007] FCA 1653 at [21]:

“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.” [There follows a series of authorities]

It is normal in cases of this nature to have a transcript of the evidence and some evidence from a qualified interpreter that shows what the alleged failings are. None of this has been provided in this case and that ground must be rejected.

11. The third ground is that:
    • “The Tribunal failed to comply with s.424AA of the Act, regarding an inconsistency in my evidence.”

Section 424AA is an alternative method by which the requirements of section 424A can be met. In this particular case a letter under section 424A was sent. That letter does ask the applicant questions concerning inconsistencies in her evidence and asks her to comment upon them. The High Court has made it clear that the Tribunal is not required to provide the applicant with a running commentary upon its thought processes, nor to give the applicant an opportunity to comment upon every adverse finding that the Tribunal has it in mind to make, SZBEL v Minister for Immigration [2006] HCA 63. This ground appears to me to be requesting either or both of these things to have been done. I note in any event the inconsistency complained of is not particularised.

The fourth ground raised by the applicant is:

“With regard to section 91R(3) of the Act the Tribunal disregards my claims with the underground church in China and church involvement since I arrived in Australia.”

This is a correct statement but it is not a ground of complaint that the Tribunal fell into jurisdictional error.

12. Ground 5 is:
    • “The Tribunal failed to take into account that the applicant have provide evidence relating to church of Syd West Asian Christian by Victor Yeung (Senior Pastor) and evidence from church, sister and brother.”

The Tribunal did take these matters into account and gave its views about that evidence. Those views were available to it upon consideration of all the facts and circumstances. There is no jurisdictional error here.

13. The sixth ground is:
    • “The Tribunal failed to give enough weight to the fact that it was applicant has involved herself in the Sunday worship service and activities of the Mandarin group.”

The amount of weight which the Tribunal gives to a particular piece of evidence is a matter for the Tribunal and it is not for this court to interfere merely on the basis that the applicant would like to Tribunal to have given greater weight to that evidence than it appeared to do.

14. The seventh ground of application is:
    • “The RRT failed to retain or failed to exercise jurisdiction by reason that the RRT erred in law in failing to take into account a relevant consideration for the reason that the Tribunal made findings that were illogical and/or irrational.”
15. In Minister for Immigration v Eshetu [1999] HCA 21 [40] Gleeson CJ and McHugh J said:
    • “... Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”
16. In VWST v Minister for Immigration [2004] FCAFC 286 the Full Bench said at [18]:
    • “We agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review.”
17. As I have not been advised of the relevant consideration that the applicant says the Tribunal did not take into account, it is difficult for me to express any view on this matter. I would say that it does appear, from the ground itself, that the applicant’s claim of want of illogicality is more a disagreement with the Tribunal’s findings than anything else.

The applicant appeared before me today with the assistance of an interpreter. She told me that the Tribunal didn’t conduct a serious investigation into her evidence. She said that the material she gave to the Tribunal had reflected her truthful experience and that if the Tribunal had conducted serious investigations it would have come to a different conclusion. I do not take from this that the applicant was suggesting that the Tribunal should involve itself in some further investigations of the situation in China so far as it concerned the applicant. I think what she meant was that “if the Tribunal had asked more questions”. In reality what the applicant is saying is that she does not understand why the Tribunal did not believe her. That does not add to any of the grounds of review previously posited. The applicant also told me that she was surprised that the Tribunal had concluded that she had gone to church only to strengthen her case. She told me that she had been worshipping God for many years. Perhaps I could best explain my position to the applicant by quoting from NARE v Minister for Immigration [2003] FCA 554 where at [10] Allsop J described the role of the courts in the following way:

“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”

18. I hope that the applicant will understand from this quotation that whatever I may think about her religious observance is irrelevant. The Tribunal has decided that issue and in the absence of jurisdictional error in the manner in which it came to that decision I am unable to assist her. I dismiss the application. I order that the Applicant shall pay the First Respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: