SZOQJ & Anor v Minister for Immigration & Anor [2011] FMCA 64 (31 January 2011)

Last Updated: 10 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQJ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 64

MIGRATION – Review of RRT decision – application to extend time for filing – where applicant claimed that delay was caused by fraud of migration agent in not informing her of adverse decision – whether extension of time in the interests of the administration of justice – jurisdictional error – where migration agent had translated applicant’s claims into English on her PVA – whether Tribunal obliged to consider whether English translation properly reflected applicant’s claims for protection – where application to the Tribunal was completed in English without interpreter’s declaration – whether Tribunal was correct to proceed on the basis of that application – whether discussion of possible sur place claim demonstrated that the Tribunal misunderstood applicant’s case.

Migration Act 1958 (Cth), ss.430, 476, 477

SZFDE v Minister for Immigration & Anor [2007] HCA 35; (2007) 232 CLR 189 SZLHP v Minister for Immigration & Anor [2008] FCAFC 152; (2008) 172 FCR 170

First Applicant:

SZOQJ

Second Applicant:

SZOQK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2088 of 2010

Judgment of:

Raphael FM

Hearing date:

31 January 2011

Date of Last Submission:

31 January 2011

Delivered at:

Sydney

Delivered on:

31 January 2011

REPRESENTATION

Counsel for the Applicants:

Mr J Patel

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) Application for extension of time dismissed.
(2) Applicants to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2088 of 2010

SZOQJ

First Applicant

SZOQK

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court by way of an application filed on 23 September 2010. There was annexed to the application an affidavit which itself annexed a copy of the decision record from the Refugee Review Tribunal. The date of the decision of the Refugee Review Tribunal is 14 May 2010. Section 477 of the Migration Act 1958 (Cth) (the “Act”) provides that an application to this Court for a remedy to be granted in exercise of its jurisdiction under s.476 must be made to the Court within 35 days of the date of the decision. Section 477(2) provides that the Court may, by order, extend that 35 day period if:
   • “(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
   • (b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

Subsection 3 defines the date of the migration decision as the date of the written statement given under s.430(1) of the Act. In this particular case, the court book reveals that the date of the decision was at the latest 17 May 2010, being the date upon which a copy of the notice was sent by registered post to the applicant at a post office box address in Auburn of which more will be said later.

2. On 23 September 2010 there was filed in this Court another affidavit by the applicant which was intended to comply with the requirements of s.477(2)(a). The affidavit indicated that the applicant had been introduced to a Mr Wang in October 2009 who promised to obtain a protection visa for her upon payment of $2,000.00. The applicant says that she did not know where this Mr Wang lived, that she met him at the Lidcombe Station and that all correspondence from the Immigration Department was collected by Mr Wang’s friend who is not named. The affidavit goes on to say that before the applicant attended that interview with the delegate she had been told that Mr Wang had returned to China so she went to the interview with the delegate by herself. She says that Mr Wang (who had obviously returned from China) told her about the Tribunal hearing and took her to it, but clearly did not stay according to the hearing record. After the Tribunal hearing had taken place, she rang him seeking the result of the hearing:
   • “He kept telling me to wait and wait. I started to lose trust on [sic] him so I took a friend who speaks English to RRT on 14 September 2010 to inquiry about my hearing result. To my surprise, I was told that my application was declined on 14 May 2010. I rang Mr Wang immediately about that. He just told me he would not keep applying for me unless I pay him extra money. Since I would not like to trust him any more I asked him to return all the materials I supplied to him for my application. To my disappointment I was told he lost my file. Till then I realized I need to talk to someone professional enough and I was told I had missed the best chance of applying to the Federal Court and needed to apply for an extension of time.”

The applicant was not cross-examined upon her affidavit.

3. On 14 October 2010 this matter came before Registrar Segal for directions. The applicant appeared and had the benefit of an interpreter. The applicant advised the Registrar that she wished to take advantage of the Minister’s scheme and she was referred to a panel adviser. There is a letter on the file dated 24 November 2010 advising that the panel adviser had provided advice to the applicant on 24 November 2010 after having a meeting with her.
4. On 22 October 2010, there was provided to the Court a transcript of the hearing. This document found its way into a part of the file that the Court does not normally open and, thus, when it was produced during the course of today’s hearing by Mr Patel, who appears on behalf of the applicant, the Court made some criticism of the fact that it had not been previously referred to. That criticism was unjustified in the event.
5. A decision by this Court as to whether or not a matter should be heard, or more accurately, whether or not the Court should extend the 35 day period is a serious one. It is generally accepted that in making such a decision, the Court should consider two elements. The first being the reasons given by the applicant for the delay and the second being whether or not there is an arguable case that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. In this particular case, the Court has looked at both matters and heard Mr Patel.
6. It should be stated that Mr Patel only came into this case today. He tells the Court that he received instructions to act on behalf of the applicant over the weekend and he made every effort to see her and obtain her instructions during that time but was severely limited by the fact that she speaks no English. When Mr Patel advised the Court of this, the Court granted him an adjournment so that he could take instructions from his client with the benefit of the Court appointed interpreter. This was done.
7. The applicant submits that she was the subject of a “fraud” by Mr Wang in that he was not, she says, a migration agent, although he claimed to be in the application for the protection visa [CB 9]. The Court has no evidence that Mr Wang is not or was not at the appropriate time, a migration agent. It is somewhat concerning that, although his name is filled in in the answer to question 15, no telephone number is given. But question 16 is ticked in the affirmative, indicating that he is a person registered with MARA. Question 19 [CB 9] indicates the written communications about the application should be sent to the applicant and the post office box in Auburn is given as her address in the answer to question 18 [CB 13]. Mr Patel submitted, without evidence, that this document, the application, was not translated to his client and she did not know that the address for documents to be sent was not her own address. But I am unable to say whether or not the PO Box referred to is hers or is that of the person purporting to be Mr Wang.
8. Mr Patel submits that Mr Wang’s fraud was in not telling her of the result of the application which he argues he would have received. He does not suggest that this is a fraud on the Tribunal of the type referred to in SZFDE v Minister for Immigration & Anor (2007) 232 CLR 189. He says it is a fraud on his client.
9. Having considered the affidavit of the applicant and the fact that she was not cross-examined upon it, and having looked at the documentation in the court book, which is a copy of the applicant’s PVA and other documents, I would be prepared to give the applicant the benefit of the doubt upon her statement. In other words, I would be reluctantly prepared to accept that she had not been informed by Mr Wang of the result of the Tribunal decision, that she did not get the decision record herself and that after a considerable delay she felt that something must be wrong and therefore enlisted the help of a friend who spoke English to take her to the Tribunal and obtain the copy which is now the subject of this application.
10. I am not, regrettably, so sanguine about the second requirement for consideration, namely, whether it is in the interests of the administration of justice to allow the period of 35 days to be extended because, having heard Mr Patel and having read the decision record myself, I am not convinced that any jurisdictional error has been identified.
11. Mr Patel identified the jurisdictional errors that he believed the Tribunal had fallen into as follows:

The denial of natural justice: translation issue

As I understood Mr Patel’s argument, it was that the applicant had completed her PVA and a supporting statement by providing information to Mr Wang who then translated it into English and completed the form and the statement. The applicant did not have the statement read back to her and, therefore, she was unaware of the basis upon which her application was being made. Mr Patel argues that the Tribunal should have had the English statements interpreted into Mandarin by the Tribunal’s interpreter and the applicant should have been asked whether that was the basis upon which she claimed to be a person to whom Australia owed protection obligations. Mr Patel points to a part of the transcript where the Tribunal discusses with the applicant the manner in which the form was completed. At [T4], she says that she wrote “it” in Chinese first and had it translated and that she paid for the translation. She cannot identify the translator. At [T6] she indicates that while she knew what was written down in the Chinese statement, she is not sure about the English context. The Tribunal appears from the transcript to be somewhat surprised that the applicant didn’t compare the two documents and then proceeded to question her using as a basis the English version.

12. It will be seen from the Tribunal record that the Tribunal’s questioning was careful and thorough and there is no suggestion, either in it or so far as I can see from the copy of the transcript that I have before me, that the applicant ever suggested that there were questions the Tribunal was asking that indicated a discrepancy with her own personal claims or that the Tribunal had misunderstood in some other way her own personal claims, or that there were elements of her personal claims that were not being considered by the Tribunal. It should also be remembered that this was not the first time that the applicant had been questioned about her claims. She received the benefit of an interview with the delegate at which these same claims were put forward and upon which she was questioned. The applicant also received a copy of the delegate’s decision record.
13. So, if there were any problems with the English version of her claims, they could have been identified before the applicant made her application to the Tribunal and pointed out to the Tribunal itself when it came to interview her. None of those things happened. I infer from all of this that the applicant has no complaints about the English translated statements. I note that she was directed to file an amended application by the Registrar but did not do so. If this matter was to have been raised it could have been raised some considerable time ago and the applicant could have produced to this Court another translation of the Chinese documents, which it is clear from the transcript she had at home, that would establish the incorrectness of the documents that were before the delegate and the Tribunal.
14. I have come to the conclusion that I cannot be satisfied that the applicant truly believes that the document in English which was before the delegate and the Tribunal does not represent her claims for asylum, and I am certainly not satisfied that the conduct of the Tribunal in dealing with these documents indicated a jurisdictional error. Insofar as it might be suggested that the actions of Mr Wang in interpreting these documents might have constituted a fraud of the type referred to by the High Court in SZFDE (supra), I would note that in the transcript the applicant indicates that someone independently translated the document. There is no reference at [T6] to Mr Wang. Why that person should have acted in a manner that would bring her actions within the scope of SZFDE, as further interpreted by the Full Court in SZLHP v Minister for Immigration & Anor [2008] FCAFC 152; (2008) 172 FCR 170 I am not told and I cannot accept that this might have occurred without any further evidence.

The no-translation certificate issue.

I have already pointed out that, in the Tribunal application, section G [CB 60], being the interpreter’s declaration, is not completed. As I understand Mr Patel’s argument, the form completed by the applicant, commencing at [CB 57], is a form that is statutorily created and if it is not completed in accordance with its tenor, the Tribunal’s decision-making powers are in some way vitiated. It is submitted that when the Tribunal saw that section G had not been completed, it should have questioned the applicant about this. It should have assumed that, because she required an interpreter, she did speak no English and could not have filled in the form herself and, therefore, not permitted the application to go forward.

15. There are a number of problems with this submission. The first is, of course, that if the Tribunal did not permit the application to go forward, then any new application would be out of time and the applicant would not have the benefit of the merits review that she sought. The second is that, at least in this particular case, the application itself has nothing in it upon which the Tribunal was to inquire for the purposes of making its merits review decision. The application contains sections A to D. Section A requires the name of the applicant. Section B, some information about her country of birth and nationality as well as her residential address and indicates her need for an interpreter. Section C refers to a migration agent. Section D refers to the sending of correspondence and section E identifies the decision that is to reviewed. Section F is a declaration about the truth and correctness of the information within the form and section G is the interpreter’s declaration. None of those matters are the subject of the review. No one has suggested that the applicant is other than the person she says she is or that her husband, the secondary applicant, is anyone other than she said he was, nor that she did not live at the address in Auburn given nor is a Chinese citizen. There is no indication from the court book that the application itself contained additional documents that had been translated. I am simply unable to see how a failure to complete the interpreter’s certificate could lead to the vitiation of the Tribunal decision.

The applicant’s activities in Australia issue.

16. At (n) [CB 105], the Tribunal states:
    • “The Tribunal remains unsatisfied about the explanation of the applicant wife as to why the authorities in China would have any interests in her religious activities in Australia, given that Christianity itself is lawful in China and many churches operate freely, including in her province. The Tribunal considers it highly unlikely, if not implausible, that the authorities would be interested in the applicant’s religious activities in Australia given that they allow Christian worship in the applicant’s own province. Neither is the Tribunal satisfied that the authorities would be interested in her because they believe she attends an unregistered church in Australia because the concept of an unregistered church, or church unregistered in China, has no meaning in Australia.”
17. Mr Patel submits that this paragraph indicates the Tribunal’s misunderstanding of the applicant’s case. He says that her argument was that there was a restriction on how one practises religion in China. She was not arguing that her worship in Australia constituted a factor for which she might be persecuted should she return. Mr Markus, who appeared on behalf of the respondent, argued that subparagraph (n) must be seen in the context of the decision as a whole. In the preceding subparagraphs, the Tribunal had set out in great detail why it did not accept the applicant’s credibility on her adherence to the Christian religion. Having come to the conclusion that she was not such an adherent and that she had not carried out the activities in China that she had claimed, the Tribunal moved on to deal with what could be considered to be a sur place claim arising out of her activities whilst in Australia. It was that with which it was dealing. To my mind, Mr Markus was correct in that assumption. The Tribunal did not misunderstand the applicant’s case and it dealt with it in all its aspects thoroughly.
18. This is one of those cases where the Tribunal faced with what might be a plausible series of claims is able to indicate from the evidence given by the applicant herself, inconsistencies within that evidence and with country information that it is unable to accept the truth of the claims. It hardly needs to be said that an assessment of the credibility of an applicant is a Tribunal’s duty par excellence or that, provided the Tribunal can show why it has taken a view against a particular applicant, then it is not for this Court to interfere with those findings. This is not an appeal de novo, it is a judicial review. I have not been able to see in the findings and reasons of this Tribunal any indication of a jurisdictional error that would lead me to the view that the interests of justice will be served by my extending the time for the filing of the application. The application for extension of time is therefore dismissed and the substantive application will not be heard. The applicants are to pay the first respondent’s costs which I assess in the sum of $5,000.00.

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

Date: 10 February 2011