SZIUC v Minister for Immigration and Citizenship

Federal Court of Australia|2008-05-15|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Lloyd-Jones delivered on 22 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') signed on 20 March 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa ('the protection visa') to the appellant.

BACKGROUND 2 The appellant is a citizen of the People's Republic of China ('the PRC'). The appellant claims to have a well-founded fear of persecution resulting from her religious beliefs. 3 The appellant claims that after her marriage ended in 2003 she was encouraged by a friend to attend an unregistered Christian church ('the unregistered church'). The appellant claims that she began to attend regularly. The appellant claims that in September 2004 the Public Security Bureau ('PSB') detained her for one week with about ten other members of the unregistered church, during which time she was interrogated and told not to participate in further religious activities. 4 The appellant asserts that she was subsequently forced to attend an official church. In December 2004 the appellant decided to leave the official church after three months of attendance. She claims that she resumed her involvement with the unregistered church in February 2005. She also claims that she was involved in the recruitment of new members for the unregistered church and in the organisation of its gatherings. 5 The appellant claims that in September 2005 a gathering of the unregistered church was broken up by the PSB. The appellant claims that many members were arrested but that she managed to escape and go into hiding. The appellant claims that the PSB has subsequently sought to discover her whereabouts and have questioned her parents on many occasions. 6 The appellant decided to flee the PRC using a false passport. The appellant also claims that the unregistered church's leader has since been apprehended and sent to a labour farm. 7 The appellant claims that she has been attending church services since arriving in Australia. The appellant claims that she would be subjected to persecution because of her religious beliefs if she returned to the PRC.

THE TRIBUNAL DECISION 8 Although the Tribunal accepted that the appellant had communication difficulties before the Tribunal, it found that such difficulties stemmed from her lack of knowledge of Christianity rather than from her inability to communicate with the interpreter. The Tribunal found that the appellant had 'limited knowledge' of the Bible and Christianity and did not accept that she had a genuine belief in Christianity. The Tribunal found that the appellant had fabricated her claim in order to enhance her application for the protection visa. 9 The Tribunal found that at the hearing the appellant's recollections of key dates relating to her alleged detention contradicted those in her written application. The Tribunal did not accept the appellant's explanation for the inconsistencies. The Tribunal found that the appellant was not a credible witness. 10 The Tribunal concluded that the appellant did not have a well-founded fear of persecution in the PRC for reasons of religion or any other Convention Relating to the Status of Refugees 1951 reason. The Tribunal accordingly affirmed the decision of the Minister's delegate.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE 11 By amended application filed in the Federal Magistrates Court of Australia on 14 August 2006 the appellant sought judicial review of the Tribunal's decision. Before Federal Magistrate Lloyd-Jones the appellant claimed, inter alia, that: 1. The presiding member failed to assess the appellant's claims fairly and properly due to interpretation problems; 2. The presiding member failed to comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth); 3. The presiding member failed to comply with s 425 of the Migration Act 1958 (Cth); 4. The appellant's claims were incorrectly interpreted by the interpreter at the Tribunal hearing; 5. The appellant's claims were not fairly or carefully assessed by the Tribunal. 12 In considering the first ground of review, the Federal Magistrate noted that the appellant had not provided evidence such as a transcript of the Tribunal hearing to support the assertion that she had experienced difficulties with the interpreter. In the absence of a transcript, the only evidence before his Honour was the Tribunal decision. Such decision records that the Tribunal had raised the issue of interpretation difficulties with the appellant and the interpreter. The appellant acknowledged that she had no difficulties communicating with the Tribunal, and the interpreter informed the Tribunal that she understood what the appellant was saying. In these circumstances the Federal Magistrate was satisfied that the ground of review could not be sustained. 13 In relation to the second ground of review, the Federal Magistrate found that the Tribunal had complied with s 424A of the Migration Act 1958 ('the Act') by clearly setting out its concerns in its letter to the appellant's authorised recipient dated 1 March 2006 ('the s 424A letter'). His Honour found no breach of s 424A as alleged and rejected the ground of review. 14 In relation to the third ground of review, the appellant claimed that as she had provided new information to the Tribunal in her response to the s 424A letter, she should have been invited to a further hearing pursuant to s 425 of the Act. Lloyd-Jones FM considered the decision of the High Court of Australia in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005)228 CLR 294 and the decision of this Court in SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100. His Honour considered that it was not clear from these decisions what kind of response to the s 424A letter would trigger an obligation under s 425 of the Act to invite the appellant to a new hearing. However, his Honour was satisfied that as the appellant's response to the s 424A letter did not raise any new issue, no further hearing was required under s 425 of the Act. His Honour accordingly rejected the ground of review. 15 The Federal Magistrate rejected the fourth ground of review as it in effect repeated the issues raised in the first ground. The fifth ground of review was also rejected.

APPEAL TO THIS COURT 16 On 11 February 2008 the appellant filed a notice of appeal in this Court which raised two grounds of appeal as follows: 1. The Federal Magistrate erred in law; 2. The Federal Magistrate was wrong in finding that the Tribunal acted properly in its findings. 17 The particulars in relation to the above grounds allege that the Federal Magistrate failed to consider that the appellant was 'in a particularly vulnerable situation', in an alien environment and was suffering serious 'technical and psychological' difficulties. The appellant states that she was afraid to speak freely and to give a full account of her case at the Tribunal hearing. 18 The appellant, by way of particulars, repeats the assertions that she made before Lloyd-Jones FM relating to her language which she states is Fuquingese and not Mandarin. She claims that although she can explain issues relevant to the Bible and can demonstrate her religious knowledge in Fuquingese, she was questioned at the Tribunal hearing in the Mandarin language which hindered her ability to answer questions effectively. The appellant also alleges that the interpreter was unable to translate the Tribunal's questions clearly and properly. 19 The appellant also submits by way of particulars that as a consequence of the interpretation difficulties at the Tribunal hearing neither the Tribunal nor the Federal Magistrate considered her evidence properly and fairly. The appellant also alleges that the Federal Magistrate was biased against her.

FINDINGS 20 In answer to such submissions, it is apparent that many of the appellant's claims relate to the conduct of the Tribunal rather than identifying any error by Federal Magistrate Lloyd-Jones. As has been previously observed in this Court, the role of the Court is to determine whether there was any error made in the decision by the Federal Magistrate, rather than any error in the Tribunal: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]; SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. 21 As to the appellant's claims that the evidence she presented was not properly or fairly considered, she repeats the assertions made in the appellant's letter which was forwarded to the Tribunal in response to the s 424A letter. 22 In its Decision Record the Tribunal recorded receipt of information supplied by the appellant in answer to the s 424A letter and specifically referred to the difficulty she claimed in articulating her claims during the hearing because she was only fluent in Fuquingese rather than Mandarin. In her application for judicial review before Lloyd-Jones FM, his Honour observed that the Tribunal had referred to the appellant's response to the s 424A letter. 23 In dealing with the appellant's claim that the interpretation by the interpreter was inadequate, the Federal Magistrate referred to the obligation under s 427 of the Act that the Tribunal provide an interpreter when an applicant is unable to give evidence without such assistance: see VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723. 24 Lloyd-Jones FM considered whether the interpreter provided to the appellant for the Tribunal hearing was adequate. In considering the issue of adequacy his Honour noted specifically that the Tribunal member stated in the decision that he had serious concerns in relation to inconsistencies in the appellant's answers. The Tribunal member, having explored this issue with the interpreter, was however satisfied that there were no difficulties in communication between the interpreter and the appellant. Accordingly the Federal Magistrate found that the ground of review could be sustained. 25 This Court observes that in her Response to Hearing Invitation form, the appellant indicated that she required an interpreter in the Mandarin language, not the Fuquingese language. 26 No evidence has been presented to this Court which would suggest that Lloyd-Jones FM erred in reaching such conclusion. As this issue was specifically investigated by the Tribunal by its inquiry of the interpreter, reconsidered on review by Lloyd-Jones FM, and unsupported by any further material placed before this Court, the Court is satisfied that there is no merit in such ground. 27 In relation to the appellant's allegation of apprehended bias, the Court is mindful of the test in Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425. Such test held that for an allegation of apprehended bias to be established it is necessary that a properly informed fair-minded lay person might well infer that the Tribunal's preconceived views would prevail irrespective of any evidence which an appellant might seek to rely upon. 28 There is no evidence relied upon which could support such an assertion. In the absence of any particulars justifying such assertion and taking into consideration the stringent tests to be satisfied before a claim of bias or apprehended bias can be established (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749), the Court is satisfied that such ground cannot succeed. 29 The Court finds that the two grounds of appeal do not establish any error in the Federal Magistrate's decision. 30 It follows that the appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Appellant: The Appellant appeared in person

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