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SZQOM v Minister for Immigration & Anor [2011] FMCA 909 (25 November 2011)
Last Updated: 2 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZQOM v MINISTER FOR
IMMIGRATION & ANOR
|
[2011] FMCA 909
|
MIGRATION – Review of Refugee Review
Tribunal decision – refusal of a Protection (Class XA) Visa – no
reviewable
error – application dismissed.
The Applicant in these proceedings is not to be identified pursuant to
s.91X of the Migration Act 1958 (Cth) and was given the pseudonym
SZQOM. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Hearing date:
|
4 November 2011
|
|
Delivered on:
|
25 November 2011
|
REPRESENTATION
|
|
The Applicant appeared in person with the assistance of a Mandarin
interpreter
|
Solicitors for the Respondents: |
Mr A. Wood of Clayton Utz
|
ORDERS
(1) The Application filed on 23 August 2011 is
dismissed.
(2) The Applicant is to pay the First Respondent’s costs and
disbursements, of and incidental to the application.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 1863 of
2011
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
- In
accordance with the Court Orders made on 13 September 2011, the solicitor for
the First Respondent was required to file a folder
which was to be indexed,
labelled and paginated, containing all documents which may be relevant to the
hearing. This order was complied
with and the volume of material provided is
identified as the Court Book (“CB”). On the date of the hearing,
the Court
Book was marked Exhibit “A”.
- At
the First Court Date directions hearing, the Applicant was granted leave to file
and serve an Amended Application giving complete
particulars of each ground of
review relied upon, together with any supporting affidavit material. The
Applicant did not avail himself
of this opportunity and relied on his original
Application. The Applicant was also required to file and serve a short written
outline
of submissions and a list of authorities 14 days before the hearing.
This order has not been complied with.
- This
is an application under the Migration Act 1958 (Cth) (“the
Act”) seeking judicial review in respect of a decision of the Refugee
Review Tribunal (“the Tribunal”),
affirming the decision of a
delegate of the First Respondent, the Minister for Immigration (“the
Minister”) to refuse
the Applicant a Protection (Class XA) visa.
Background
- In
setting out the following background material I have quoted directly from the
Court Book and submissions prepared by the parties.
I have not made further
attribution as this would make the summary unwieldy. This information is
extracted from the Court Book
and each item contains a Court Book reference for
that material.
- The
Applicant is a national of the People’s Republic of China (PRC). He
arrived in Australia on 14 December 2010 on a false
Taiwanese passport, although
he also possessed a PRC passport. He applied for a Protection (Class XA) visa
on 28 January 2011 (CB
1 – 42). The delegate, having invited the
Applicant to an interview on 10 February 2011 (CB 43 – 44), refused the
application
and notified the Applicant by letter dated 23 March 2011 (CB 45
– 64). The Applicant applied to the Tribunal for review of
the
delegate’s decision on 11 April 2011 (CB 65 – 68). The Tribunal,
having earlier acknowledged the application by
way of letter dated 11 April 2011
(CB 69), invited the Applicant to a hearing by way of letter dated 13 May 2011
(CB 70 – 71).
The Applicant attended the hearing to give evidence and
present arguments on 10 June 2011 (CB 85 at [79] – [80]).
- The
Tribunal affirmed the decision of the delegate on 12 July 2011 (CB 72 –
107). On 10 August 2011 the Tribunal received a
statutory declaration dated 8
August 2011 from the Applicant (CB 109 – 111). The Tribunal wrote to the
Applicant stating that
it could not consider the statutory declaration as it was
functus officio on 12 August 2011 (CB 112). The Applicant commenced the
current proceedings on
23 August 2011.
The Applicant’s claim for a Protection Visa
- The
Applicant claims persecution in the People’s Republic of China by reason
of his political opinion. The Applicant claims
that in March 2010 he opened a
barbeque business in Longtian Town and managed to gain a good position in the
local market due to
the experience gained through exposure to his parent’s
barbecue shop. He claims that his success brought jealousy from local
competitors. He claims that shortly after he opened his shop he started
receiving blackmail and threats ‘from strangers’
(CB 78 at [38]). He
claims that approximately four months after he opened the shop a group of gang
members smashed his shop and left
a message that if he did not close the
business they will come again until the business is shut down (CB 78 at [38]).
The Applicant
stated that he was terrified and contacted the local police and
gathered all the evidence from the scene. He claims that when the
police
arrived they told him to bring all the evidence and go to the police station
with him. He claims that when he arrived at
the police station they locked him
up and confiscated his evidence (CB 78 at [38]).
- The
Applicant further details his experience to the Tribunal in which he
claims:
- He
believed that his shop was ransacked at the request of a competitor who was the
nephew of the police chief.
- In
July 2010 his shop was again ransacked and he and his employees were beaten up
(CB 79 at [41]).
- The
Applicant contacted the local media about his situation and it became a
“top headline” in the local newspaper (CB
79 at [41]).
- Following
the newspaper article, the police came and detained the Applicant for no reason
other than that he was making “false
proclamation and damaging the
reputation of the local police commission. He was detained for two weeks and
while in custody he was
questioned and brutally bashed (CB 79 at [42] –
[43]). As a result he was hospitalised.
- The
Applicant claims that his business was forced to close down because of the local
police and he was then treated as anti-government
personnel. He further claims
he was unable to maintain employment as a result of the actions of the police
(CB 79 at [42] –
[43]).
- The
Applicant then decided to escape from the PRC and organised for a false passport
and other documents. He maintained regular contact
with members of his family
and the PRC from whom he understood that he was still of interest to the
authorities.
The Tribunal decision
- The
Tribunal accepted that the Applicant was a citizen of the PRC based on his
passport notwithstanding that the Applicant had admitted
to using a false
Taiwanese passport in order to enter Australia. The Tribunal did not accept any
of the Applicant’s other
claims. It found significant inconsistencies in
the Applicant’s evidence and found some of that evidence not credible.
- The
Tribunal found it not to be credible that the Applicant did not know the names
of key people involved in his harassment in China.
The Tribunal also found it
not believable that the Applicant did not have a copy or had not obtained a copy
of the newspaper containing
publicity exposing his competitor and the Police
Chief. Further inconsistencies identified by the Tribunal in the
Applicant’s
evidence related to the following:
- The
first attack on his shop. The Applicant claimed that gang members smashed up
his shop and threatened him or smashed up his shop,
beat his staff and himself
and also threatened him;
- The
aftermath of the first attack on his shop. The Applicant claimed that he
gathered evidence as to the perpetrators and went to
the police who confiscated
the evidence and detained him. The Applicant also claimed that the police came
to his shop and asked
him to come to the police station with the evidence he
held. Upon his arrival at the police station, the Application was detained.
The Applicant then claimed that the police asked him to wait in an investigation
room at the police station for half an hour, only
after which he was
detained;
- The
length of detention of the Applicant, particularly the detention immediately
after the first attack. The Applicant originally
claimed in his Statutory
Declaration that he was detained, on that occasion, for about one week and then
at the hearing claimed it
had been for a period of two
weeks;
- At
the Tribunal hearing the Applicant claimed that the police when to his home in
the wake of the first attack following his discharge
from hospital. On no other
occasion was this claim made;
- The
Applicant claimed that he had been unemployed during certain stages, but on
another occasion, he indicated that he had always
been employed;
- The
Applicant gave varied reports as to where he lived in China without explanation
for the difference;
- The
Applicant claimed that he had a child who was born after his marriage in
February 2010. However, he also claimed that he was
married in October 2010
which would mean that the child’s birth was before the marriage. He then
claimed that he had a de
facto marriage from 28 July 2009 and did not register
his marriage until October 2010;
- The
Applicant claimed that he was unable to speak to his wife on the telephone or
could only do so infrequently because she had the
attention of the local police.
However, the Applicant later claimed that he called his wife once or twice per
week without difficulty.
- The
Tribunal did not accept that the Applicant’s explanation for these
inconsistencies being related to him misunderstanding
certain things. It was
not satisfied that inconsistencies arose from the departmental interview and the
Tribunal did not accept
that the interpretation at the interview was defective.
Despite a request by the Tribunal of the Applicant, no evidence was provided
by
the Applicant as to defects in interpretation. Accordingly, based on the
evidence before it, the Tribunal found the interpretation
was accurate. Thus,
the Tribunal was not satisfied that the Applicant was a person to whom Australia
owed protection obligations
and affirmed the decision to refuse the Applicant a
Protection (Class XA) visa.
Application for judicial review
- The
Applicant filed an Application for judicial review of the Tribunal’s
decision on 23 August 2011. In his Application the
Applicant seeks the
following relief:
- 1. An
order that the decision of the tribunal or Minister be quashed;
- 2. A writ
of mandamus directed to the tribunal or Minister, requiring them to determine
the applicant’s application according
to law.
- 3. A
declaration that the recommendation of Tribunal’s decision was not based
on the fact.
- The
Applicant states his grounds of review as follows:
- 1. The
Tribunal rejected my case due to poor memory, past experience caused my bad
memory.
- 2. Lacking
of detailed information caused the doubt of my application by Tribunal.
- 3.
Misunderstand of the interpreter and the department’s doubt did not base
on the fact.
- The
Applicant also seeks an extension of time within which to bring the Application.
The application was filed several weeks out of
time. In the grounds for an
extension of time are as follows:
- 1. The
application was returned due to incomplete forms.
- 2. Due to
unfamiliar process, I didn’t pay the application fee in the beginning.
Submissions of the Applicant
- When
the Applicant was invited to make oral submissions regarding the comments of the
Tribunal member in respect to inconsistencies
in his evidence, he indicated that
it was a problem of his own because he was unable to express himself clearly.
He submitted that
in respect to inconsistencies relating to the birth of his
child and his marriage, he confirmed that the chid was born before the
marriage
and the registration of the marriage was performed later. He indicated that
when he did initially inform the Tribunal that
his child was born after the
marriage, what he intended to covey was that they had a wedding ceremony but the
certificate of that
marriage was not filed until much later. In respect to the
comment about not knowing the boss’ real name, he submits that
was true as
he did not know the real name and was only aware of what he was referred to as
the person’s nick-name which was
used widely. He admitted that he was not
very clear about where he had lived and it was true that he cannot remember
because he
moved around and lived in many different places. He could not
remember exactly where he had lived at particular times. About his
employment,
he notes the comments of the Tribunal that he was sometimes unemployed and then
he later claimed that he was always employed,
he maintains that is true as most
of the time he was doing things for his father which would not count as a job as
he was not being
paid.
- At
the end of the Applicant’s evidence I asked him to inform the Court
whether he believed that some of these inconsistencies
were due to him not being
able to express himself clearly, or if it was due to a problem with the
interpreter service. In reply,
the Applicant indicated that he thought that the
interpreter misunderstood him, together with the way that he spoke and that he
was
unable to make very clear statements combined with the feeling that he was
being interrogated in a similar way to the situation in
a police station. He
indicated that he was very nervous and because of that he could not articulate
well. I then asked the Applicant
that in respect to the person’s name as
to who was harassing him, he indicated that he did not know his proper name and
he
was known to him only by nickname. I asked the Applicant whether he gave
that nickname to the Tribunal to which the Applicant indicated
that he
didn’t because they only asked him “Do you know his name?”. He
indicated that he did not know his proper
name so he said “No”.
When asked if he responded to the Tribunal by saying that he only knew the
person by their nickname
the Applicant indicated that he did not. When asked
why he did not know what the person’s name was, he responded that he did
not know the person’s proper name and he was very nervous in that
situation and his mind went blank.
Submissions on behalf of the First Respondent
- Mr
Wood, appearing for the Minister, indicated that he relied upon his written
submissions but wished to add that the Applicant is
relying on his submission
that the Tribunal misunderstood him and this was due to the communication not
being clear and that he could
not articulate himself well. His explanation for
the adverse credibility finding which is the function of the Tribunal, par
excellence,
is based upon expression. This does not accord with a fair reading
of the decision record which records an extensive conversation
between the
Tribunal and the Applicant with direct questions that were directly answered by
the Applicant, without apparent difficulty.
Extensive questions were asked,
with corresponding answers, which prima facie contradict the claim that the
Applicant was unable
to express himself clearly. The Tribunal repeatedly asked
him to be more specific about communication difficulties in the departmental
interview but all that he could do was make bold assertions as to poor
articulation and poor expression. In respect to this aspect
of the claim, the
Minister submits that there was no denial of procedural fairness and otherwise
relies on the written submissions
filed in the proceedings, which are addressed
below.
Applicant’s submission in reply
- The
Applicant was referred to the copy of the Minister’s submissions which
were provided to him and read to him by the interpreter
prior to the
commencement of the hearing. The Applicant was asked whether there was anything
arising from that document which the
Applicant wished to comment on. The
Applicant indicated that in respect of the places that he lived, he had already
indicated that
he could not always remember exactly where he lived at any
particular time. It was also possible that when he was answering that
question
he did in fact mix up the time and place. The Applicant indicated that the
Minister’s submissions make references
to the inconsistencies relating to
how the gang went to his shop and smashed it. When the Tribunal was asking him
questions about
that event through the interpreter, he thinks it was a
misunderstanding on his part because they came twice to smash up his shop
and in
responding to that question he had mixed up the time and what had happened and
that is all he could remember. The Applicant
also indicated that in respect to
contacting his family after arriving in Australia, he was experiencing
difficulties in getting
in touch with them. He indicated that he had told the
Department that he was in contact with his family every few days but that
was a
different period as that was what was happening when he first arrived.
He
indicated that he did have difficulty contacting his family later on. The
Applicant indicated that he was asked this question
by the Department and he was
unsure as to what period they were referring to so he simply responded by saying
“Yes, I do have
contact”.
Consideration
- The
Minister has requested that the Applicant Show Cause why a remedy should not be
granted in exercise of the Court’s jurisdiction
under s.476 of the
Migration Act 1958 in respect of the Application being filed outside of
the time limits specified in s.477. In seeking an extension of time, the
Applicant has pleaded the following ground:
- The
Application was returned due to incompleted forms. Due to unfamiliar process, I
didn’t pay the Application fee in the
beginning.
- The
Tribunal decision of Dione Dimitriadis, RRT Case Number 1103314 dated 9 July
2011, was forwarded to the Applicant by letter dated
12 July 2011. It appears
with the Application filed in Court that is date stamped 23 August 2011.
- Relevantly,
s.477 of the Migration Act states:
- Time limits
on applications to the Federal Magistrates Court
-
(1) An application to the Federal Magistrates Court for a remedy to be
granted in exercise of the court's original
jurisdiction under section 476
in relation to a must be made to the court within 35 days of the date
of the migration decision.
-
(2) The Federal Magistrates Court may, by order, extend that 35 day period
as the Federal Magistrates Court considers
appropriate 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.
-
(3) In this section:
- "date
of the migration decision" means:
-
(a) in the case of a migration
decision
made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975
--the date of the written decision under that subsection; or
-
(b) in the case of a written migration
decision
made by the Migration
Review Tribunal or the Refugee
Review
Tribunal--the
date of the written statement under subsection 368(1) or 430(1); or
-
(c) in the case of an oral migration
decision
made by the Migration
Review Tribunal or the Refugee
Review Tribunal--the
date of the oral decision; or
-
(d) in any other case--the date of the written notice of the decision or,
if no such notice exists, the date
that the Court considers appropriate.
-
(4) For the purposes of subsection (1), the 35 day period begins to
run despite a failure to comply with the requirements
of any of the provisions
mentioned in the definition of date
of
the migration decision in subsection (3).
-
(5) To avoid doubt, for the purposes of subsection (1), the 35 day
period begins to run irrespective of the validity
of the migration
decision.
- In
accordance with s.477(2), I will extend the time for compliance as the delay is
not substantial and, having the matter fully argued
before the Court, I believe
it is appropriate to adopt this course.
- In
respect to Grounds One and Teo I am satisfied that the Minister’s
submissions are correct in that the Applicant is wrong
to suggest that his case
failed due to his poor memory being an issue that had not been previously
claimed before either the delegate
of the Minister or the Tribunal. It was not
poor recollection or lack of details or variations or inconsistencies that
resulted
in the Tribunal reaching that conclusion. The Tribunal concluded that
the Applicant was not relevantly credible and such a finding
is a function of
the primary decision maker par excellence: Re Minister for Immigration and
Multicultural Affairs, Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per
McHugh J at [67]:
- ... A
finding on credibility which is a function of the primary decision maker par
excellence. If the decision maker misstated that
he or she does not believe a
particular witness, no detailed reasons need to be given as to why that
particular witness was not believed.
A Tribunal must give reasons for its
decision, not a sub-set of reasons why it accepted or rejected individual pieces
of evidence.
- The
Tribunal state of satisfaction as to whether Australia has protection
obligations for the purposes of a Protection visa will only
be reviewable if it
can be described as illogical or irrational: Minister for Immigration and
Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 620 – 621, 625, 632, 647
– 648. No such criticism can be sustained where ‘it was open to the
Tribunal to engage
in the process of reasoning in which it did engage and to
make the finding it did make on the material before it’: Minister for
Immigration and Citizenship v SZMDS (supra) at 648 applying SZMIA v
Minister for Immigration and Citizenship [2010] FCA 815 at [20]. In light
of the relevant inconsistencies, the Tribunal’s overall conclusion was
clearly open to it.
- In
respect to Ground Three, the Tribunal was entitled to conclude that, in the
absence of any specific evidence to the contrary, the
interpretation at the
departmental interview was accurate. There is no indication of a defect in
interpretation in the Tribunal
hearing. Under s.427 of the Migration
Act, the Tribunal is required to provide an interpreter where an Applicant
is unable to give evidence without one: VWFY v Minister for Immigration and
Multicultural and Indigenous Affairs [2005] FCA 1723 at [8]. The Tribunal
has a statutory obligation under s.425 to ensure the invitation to a hearing is
‘real and meaningful’: Appellant P119/2002 v Minister for
Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at
[16]. This includes providing an interpreter of a sufficient skill such that
the Applicant is not denied his or her right to a fair hearing: VWFY v
Minister for Immigration and Multicultural and Indigenous Affairs (supra) at
[27].
- In
SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 per her
Honour Jagot J at [52] stated:
- It is
apparent from these (and other) decisions in which inadequate interpretation has
been claimed that the question whether the
inadequacy has been such as to
deprive an appellant of the opportunity given by s 425 of the Migration Act
involves a qualitative assessment of the conduct of the hearing before the
Tribunal as a whole.
- An
Applicant brining a claim of inadequate interpretation must show one of the
following:
- The
standard of interpretation at the Tribunal hearing was so inadequate that the
Applicant was prevented from giving evidence at
the Tribunal; or
- Errors
made at the interpretation of the Tribunal hearing were material to the
conclusion of the Tribunal adverse to the Applicant:
Appellant P119/2002 v
Minister for Immigration and Multicultural and Indigenous Affairs (supra) at
[17], see also Singh v Minister for Immigration and Multicultural Affairs
[2001] FCA 1376; (2001) 115 FCR 1; Perera v Minister for Immigration and Multicultural
Affairs [1999] FCA 507; (1999) 92 FCR 6; Soltanyzand v Minister for Immigration and
Multicultural Affairs [2001] FCA 1168. Generally, the Court should
consider:
- (a) Whether
there is a correct translation available against which the interpreter
performance is compared: VWFY v Minister for Immigration and Multicultural
and Indigenous Affairs (supra) at [10]. In making comparisons,
“it is sufficient if the translation is sufficiently accurate as to permit
the idea or concept
being translated being communicated”: NAIF v
Minister for Immigration [2003] FMCA 458 at [63]; WACO v Minister for
Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at
[26];
- (b) The manner
of the Applicant’s responses, including the “reasonableness of
interpreting answers to questions asked,
the coherence of those answers, the
consistency of one answer with another and the rest of the case sought to be
made and, more generally,
any evident confusion in the exchange between the
Tribunal and the interpreter”: Perera v Minister for Immigration and
Multicultural Affairs (supra) per Kenney J at [41], applied in VWFY v
Minister for Immigration and Multicultural and Indigenous Affairs (supra)
at [11] and Appellant P119/2002 v Minister for Immigration, Multicultural and
Indigenous Affairs (supra) [20].
- A
fair reading of the Tribunal decision indicates that during the Tribunal hearing
there were a vast number of exchanges between the
Tribunal member and the
Applicant, which received prompt answers without hesitation, and did not require
the questions to be repeated
or further explained. This, of course, may have
been the result of a selected editing of this material by the Tribunal during
the
writing of the decision. However, there is no reference to any problem
being experienced by either the Applicant or the Tribunal
member in relation to
the asking of questions and responses given. I note that the recording of the
Tribunal hearing has not been
produced in evidence to either party which would
be the normal course if serious problems were experienced during the Tribunal
hearing.
On the material before the Court I am satisfied that this ground
cannot be sustained.
- The
Applicant lodged a statutory declaration with the Tribunal after the decision
had been finalised. The Tribunal notified the Applicant
in the following
terms:
- Application
for review
- The
Tribunal received you submission dated 8 August 2011 on 10 August 2011.
- The
Tribunal made its decision in this case on 9 July 2011. Once the Tribunal has
made a decision under the Migration Act 1958 it becomes functus officio
and it has no power to take any further action on the review.
- The
Tribunal is not in a position to assist you any further on this issue.
- This
action by the Tribunal was correct in the circumstances: Minister for
Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.
Conclusion
- On
a fair reading of the Tribunal decision is it apparent that the decision is not
affected by jurisdictional error. Consequently,
the three pleaded grounds of
review cannot be sustained. On this basis, the Application should be dismissed
and the Applicant should
pay the Minister’s costs.
I
certify that the preceding 31Error! Style not
defined.!Syntax Error, !Error! Style not defined.Error! Style not
defined.!Syntax Error, !thirty-onethirty-one (31) paragraphs are a true copy
of the reasons for judgment of Lloyd-Jones FM
Date: 25 November 2011
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