BNI17 and Anor v Minister for Immigration and Anor
[2020] FCCA 1330
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNI17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1330 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant applicants a Protection visa – whether the applicants requested that the Tribunal hearing be conducted with the aid of a Fuqing interpreter – whether in the circumstances of the case the Tribunal did not give the applicants a real and meaningful invitation under s.425(1) of the Act to give evidence and present arguments because the hearing before the Tribunal was conducted with the assistance of a Mandarin interpreter rather than with a Fuqing interpreter – whether in assessing the first applicant’s claims based on his being a member of the underground Roman Catholic Church the Tribunal asked the first applicant questions relevant to his knowledge of Roman Catholicism on the basis of an arbitrary standard – whether the Tribunal assessed the genuineness of the first applicant’s beliefs and practices – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), pt.3, sch.1 Migration Regulations 1994 (Cth), reg.1.03, 1.12 |
| Cases cited: BVM15 & Ors v Minister for Immigration & Anor [2017] FCCA 3141 |
| First Applicant: | BNI17 |
| Second Applicant: | BNU17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1095 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 and 18 February 2020 |
| Date of Last Submission: | 19 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Applicants in person, assisted by an interpreter |
| Counsel for the First Respondent: | Ms R Graycar |
| Solicitors for the First Respondent: | Minter Ellison Lawyers |
ORDERS
The application is dismissed.
Subject to order 3, the applicants pay the first respondent’s costs set in the amount of $9,000.
The parties have liberty to apply within 28 days of the pronouncement of these orders for an order discharging or varying order 2.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1095 of 2017
| BNI17 |
First Applicant
| BNU17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants apply for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (class XA) visa (Protection visa).
Before I identify the grounds on which the applicants rely, it will be necessary to set out not only the claims for protection the applicants made, but also the course of the proceeding before the Tribunal, and the course of the hearing before me.
Background and claims for protection
The applicants are husband and wife; and they are citizens of the People’s Republic of China. They arrived in Australia in 2014 as holders of subclass 600 visitor visas that were valid until November 2014.
On 3 November 2014 the first applicant (the husband) lodged an application for a Protection visa. The second applicant applied as a member of the first applicant’s family unit. The claims for protection the first applicant made in his form of application may be summarised as follows:[1]
[1] CB17-20
a)The first applicant’s parents were Roman Catholics, but he was not baptised for quite a long period “because the situation was very bad in China”. The Roman Catholic Church had been completely destroyed by the Communist dictatorship, particularly by the Cultural Revolution of 1966-1976.
b)In 1980 the Roman Catholic underground church was secretly re-established in the first applicant’s hometown. The first applicant then attended a “Catechumen class” organised by the underground church. The first applicant was then baptised and confirmed and, since that time, has been a devout Roman Catholic.
c)The first applicant’s underground church does not have any open church buildings or fixed places of worship. Members of the underground church normally met at the homes of church brothers and sisters. Their meetings were normally held in the evening, and they frequently changed their meeting places.
d)The first applicant was a farmer, but he had to leave his hometown in 1986 with the second applicant because she became pregnant for the third time. The applicants feared that because of China’s birth control policy the second applicant would be forced to undergo an abortion.
e)During the following years the applicants went to different places. Many church brothers and sisters helped them. The first applicant became a skilful bricklayer; and the applicants had a further two children.
f)In about 1989 the applicants returned to their hometown together with their second and third daughters, because the situation got bad due to the “89 Democracy Movement”, and the “June Fourth Incident”. Since that time the government forced all churches to become registered; and the police paid much attention to those who were not local residents. On their return, the applicants were required to pay big fines for their two daughters, and church brothers and sisters financially supported them to pay the fines.
g)In 1992 the first applicant began to organise regular underground church meetings at the homes of different church brothers and sisters. Up to 1997 this secret meeting group gradually developed to over 20 people.
h)In July 1997 the first applicant was arrested when he organised a secret meeting at a church sister’s home in his hometown. The first applicant was alleged to have organised an illegal gathering. The first applicant was taken to the police station, then PSB, and then to a detention centre where he was detained for one month. The first applicant was physically mistreated and tortured by the police. The first applicant refused to make any confessions. The first applicant was released after a church brother “bribed the police through his friends”. After his release the police always harassed, questioned, warned, and threatened him.
i)From 1998 the first applicant had contracted some big projects, and he needed to organise other construction labourers to complete the projects with him. Church brothers and sisters introduced the construction labourers to the first applicant. The first applicant and the labourers worked and lived together at construction sites; and the first applicant always took the opportunity to organise the construction labourers to study the Bible, “to pray the Rosary”, and to attend mass or other activities of the underground church in the place where the projects were located.
j)The first applicant also took advantage of his projects to assist priests to travel from place to place to celebrate mass by organising their living arrangements, and helping priests keep contact with leaders of the underground church in the Fuqing area.
k)In April 2014 the applicants’ only son, who was then living in Australia, was critically ill, having been diagnosed with a metastasised cancer that had spread widely. In May 2014 the applicants arrived in Australia, together with one of their daughters, as holders of a visitor visa. The applicants continually attend the Roman Catholic Church, and many church brothers and sisters support them. The applicants’ son passed away in September 2014.
l)The first applicant cannot return to China because his beliefs have come to the particular attention of government authorities. The first applicant believes that forcing people to attend official churches such as the Chinese Catholic Patriotic Association and the Bishops Conference of Catholic Church in China fails to correspond to Catholic doctrine, and is contrary to the human rights of the Roman Catholics. The first applicant expressed his opinions during his church life with other church brothers and sisters, encouraging them not to attend official churches; and the first applicant refuses to accept the leadership of the official churches. The first applicant has been informed that government authorities regard him as a dangerous person who has actively organised illegal gatherings, and also spread antigovernment opinions among Catholics. Two church brothers who had recently worked with the first applicant, and who had greatly helped the first applicant spread his beliefs, were recently arrested; and others who have a close relationship with the first applicant are subjected to investigations.
The applicants prepared their forms of application for a Protection visa with the assistance of a migration agent. The application for a Protection visa was supported by a statutory declaration by the first applicant stating that “[o]ur migration agent . . . has clearly explained to us relevant legislations and legal procedures in relation to our application for a Protection Visa”, and that “[w]e fully understand and agree [sic] all contents written in English or Chinese in the application forms”.[2]
[2] CB33
Before the delegate
By letter dated 7 July 2015 the Department of Immigration and Border Protection (Department) invited the first applicant to attend an interview with the Department on 29 July 2015.[3] The letter stated that a “Fuqing speaking interpreter will be present at the interview”. By letter dated 7 July 2015, however, the Department informed the first applicant that the registration of his migration agent had been cancelled. By email sent on 9 July 2015 a migration agent sent to the Department a document headed “Advice by a migration agent/exempt person of providing immigration assistance”, identifying the name of the person who would be acting as the migration agent for the applicants.[4] On 10 July 2015 the Department sent to the migration agent a letter inviting the first applicant to attend an interview on 29 July 2015. The letter again stated that a “Fuqing speaking interpreter will be present at the interview”.
[3] CB68
[4] CB85
On 21 September 2015 the delegate refused to grant the applicants a Protection visa.
Before the Tribunal
The applicants, through their migration agent, lodged an application for review with the Tribunal on 14 October 2015. Question 2 of the form of application asked whether the applicants needed an interpreter when communicating with the Tribunal. The box next to “Yes” was ticked, and in the box under the words “Language/Dialect” there was typed “Chinese/Fuqing”.
On 19 September 2016 the Tribunal sent an email to the applicants’ migration agent requesting the applicants’ written consent for a “combined hearing” of their application for review and the application for review that their daughter had lodged with the Tribunal.[5] On the same day the applicants’ migration agent sent to the Tribunal an email stating it attached an appointment of representative, and letters of consent, one signed by the first applicant, and the other signed by the second applicant and the applicants’ daughter.[6]
[5] CB137
[6] CB138
There is in evidence a document titled “Case Note” which records a telephone conversation on 24 October 2016 between an officer of the Tribunal and a person the case note identifies as “rep”. I take that to be a reference to the applicants’ migration agent. The case note records the following:[7]
Rang rep re: int for hearing. Asked whether the a/n would prefer a Fuqing (current application) or Mandarin (previous application) int. He confirmed Mandarin for both his clients and not Fuqing.
On the evidence before me, it is unclear to what “previous application” was intended to refer.[8]
[7] CB153
[8] In response to the Applicants’ Post Hearing Submissions to which I refer below, the Minister filed an affidavit made by Ms Strugnell on 17 March 2020 which records investigations made in relation to the meaning of “previous application” contained in the note of the telephone conversation of 24 October 2016. Ms Strugnell annexed a copy of the form of application the applicants’ daughter made to the Tribunal which nominated “Mandarin” as the language for which an interpreter was required. I have not taken this affidavit into account because it was not read at the hearing.
By letter dated 24 October 2016 the Tribunal invited the applicants to appear before it on 13 December 2016 to give evidence and present arguments.[9] Attached to the letter was a form titled “Response to hearing invitation – MR Division” (Hearing Attendance Form).[10] The letter requested that the applicants read, complete, and return the document to the Tribunal within seven days.
[9] CB144
[10] CB150-152
On 31 October 2016 the applicants’ migration agent sent an email to the Tribunal attaching a completed Hearing Attendance Form.[11] Part 2 of the form is headed “Interpreter and other issues at the hearing”. It is followed by the question: “Do you or any other person attending the hearing need an interpreter?” The box before the printed word “Yes” contains a tick, and next to the printed words “Please specify the language/s” there is handwritten “Mandarin”. The form appears to have been signed by the first applicant.
[11] CB154
By email sent on 6 December 2016 the applicants’ agent attached two supporting letters each of which stated that they each know the applicants, and that they have been attending a particular Catholic church.[12]
[12] CB158-160
The matter came before the Tribunal for hearing on 13 December 2016. The hearing did not conclude, and the Tribunal adjourned the hearing to 16 December 2016. By email sent on 15 December 2016 the applicants’ agent submitted to the Tribunal a completed form titled “Response to resumption of adjourned hearing notice – MR Division” (Further Hearing Attendance Form).[13] Part 2 of the form is headed “Interpreter and other issues at the hearing”. It is followed by the question: “Do you or any other person attending the hearing need an interpreter?” The box before the printed word “Yes” contains a tick, and next to the printed words “Please specify the language/s” there is handwritten “Mandarin”. The form appears to have been signed by the first applicant.
[13] CB178
There is no transcript of the hearing before the Tribunal in evidence. There is before me, however, an audio recording of the hearing which, in the circumstances I set out later in these reasons, was provided to me after the hearing of 18 February 2020. Relevant to one of the grounds on which the applicants rely is what occurred shortly after the hearing commenced. The Tribunal member requested the interpreter, the applicants’ daughter (who appeared as part of a combined hearing of her and the applicants’ applications for review), and then the applicants, to each take the oath. When the second applicant was being administered the oath, the applicants’ migration agent, Mr Huang, said the second applicant could not understand Cantonese or Mandarin; she could only understand Fuqing. Mr Huang said he had requested a Fuqing interpreter, but the Tribunal had informed him it could not find a Fuqing interpreter. After Mr Huang confirmed the second applicant could not speak Mandarin, the Tribunal member asked Mr Huang whether he wanted the second applicant to give evidence. Mr Huang said “no”; but Mr Huang appears to have added “because that is the problem”, perhaps intending to imply the second applicant was not going to give evidence because a Fuqing interpreter could not be found. The hearing then proceeded.
At the hearing the first applicant made a new claim that he had disseminated ideas about religion to other people, and told them that the Catholic Patriotic Association is “not for freedom”.[14] After giving evidence in response to the Tribunal’s questions, the dissemination the first applicant claimed he had made consisted of his talking with fellow members of the underground church.[15]
[14] CB203, [28]
[15] CB203, [29]
After the hearing the applicants submitted a statutory declaration made by one of their daughters on 19 December 2016 (daughter’s statutory declaration).[16] It responded to a number of concerns the Tribunal member had raised at the hearing. The following paragraph from the daughter’s statutory declaration addressed the Tribunal’s concerns about the first applicant’s knowledge of Roman Catholicism (errors in original):[17]
The Tribunal has questioned my father and my knowledge on Catholicism. My father and I have responded to this during the Tribunal hearing and I respectfully request to submit further information regarding this matter. The mother tongue of my parents and my mother tongue are of a Fuqin dialect. From our childhood, we received and spread His teachings manly in a Fuqin dialect. Owing to this reason, we requested for a translator of Fuqin dialect during our hearing. Unfortunately there was no translator who spoke this dialect and so we went along with a Mandarin translator instead. Although we can speak mandarin, our eloquence is considerably weaker in comparison to the Fuqin dialect. Therefore, it is very difficult for us to accurately express our knowledge of Catholicism in Mandarin. As such, we have to ask of the Tribunal’s understanding in this matter. Furthermore, the Tribunal assumed the scope of my father and my knowledge on Catholicism based on limited arbitrary questioning from the Bible. This sort of examination gives a flawed and unjust reflection of my father and my understanding of the religion and should not hold any gravity in the Tribunal’s decision.
[16] CB187-190
[17] CB188, [5]
Tribunal’s reasons
The Tribunal accepted the first applicant was employed as a farmer until 1986 and then as a bricklayer from 1986 until May 2014; the first and second applicants are married and they have three daughters and had one son; the eldest daughter resides in China, the second and third daughters live in Australia, and the son passed away in September 2014; and that the applicants and their third daughter travelled to Australia on visitor visas to visit the applicants’ son who was terminally ill at the time.[18] The Tribunal, however, found aspects of the first applicant’s evidence “to be vague, lacking in detail, contradictory, evasive, implausible and unconvincing”; and there were “inconsistencies between his written and oral evidence”.[19] The Tribunal relied on the following matters.
[18] CB208, [57]
[19] CB201, [20]
a)First, in his written application the first applicant said he attended a catechism class organised by the underground church before he was baptised in 1980, while before the Tribunal, when asked whether he had to do anything before he could be baptised, the first applicant said he had read something about the Catholic Church to his parents, these being “the laws”; and when asked what he learnt by reading “the laws”, the first applicant said that his mother told him about the paragraph that Jesus Christ told his disciples to read and told him to read it, after which the first applicant started reciting parts of the Lord’s Prayer.[20]
b)Second, in response to the Tribunal’s question whether he was required to attend any catechism classes before he could be baptised, the first applicant said he only spoke to his parents, and further said that his family would get together with other families, but they did not have classes that he could attend. The Tribunal found this to be inconsistent with the claim the first applicant made in his written application where he stated he attended a catechism class organised by the underground Roman Catholic Church.[21]
c)Third, in his written application the first applicant claimed that since his baptism he has been a devout Roman Catholic. Before the Tribunal, however, the first applicant said he joined the Church members in their homes for prayer, but not very often; and the priest would visit his village two or three times a year. The first applicant also said he attended mass once a fortnight or once a month; but when asked how it was possible for him to do that when the priest came to his village only two to three times a year, the first applicant said he had moved to Guangdong Province and then to Shaanxi Province. The first applicant said he there practised in the underground Roman Catholic Church, but “they seldom met”. When asked further questions the first applicant said he engaged in self-study, read some articles, and recited religious articles. The first applicant then said he attended gatherings once or twice a week while he was in Shaanxi Province where they read the Bible and prayed.[22] The Tribunal said that the “inconsistencies in his evidence and his inability to provide details raise concerns in relation to his credibility and the veracity of his claims”.[23]
d)Fourth, in his form of application the first applicant claimed he was arrested in 1997 and detained for one month because he had organised a secret meeting at the home of a church sister. In answer to the Tribunal’s question whether after his release the first applicant had any further contact with the authorities, the first applicant said the authorities sent people to his home once or twice a week to question him about his movements and activities, and that this continued for two years until 1999 when the first applicant left his hometown. These are not matters the first applicant had included in his form of application.[24]
e)Fifth, the first applicant claimed before the Tribunal that after he was released from detention he continued to attend church gatherings in his village and in the neighbouring villages. The Tribunal found this implausible in light of the first applicant’s claim that the authorities were monitoring and visiting him at his home once or twice a week.[25]
f)Sixth, the Tribunal found implausible the first applicant’s claims that he frequently moved from place to place to assist priests on their travels. The Tribunal considered it unlikely the first applicant would have had time or the opportunity to escort the priests from village to village, given the first applicant’s evidence that he was busy working as a bricklayer on construction sites in various projects.[26]
g)Seventh, in response to the Tribunal’s question why he applied for a Protection visa, the first applicant gave what the Tribunal considered to be vague and generic answers about religious issues in China. The Tribunal was of the view that, had the first applicant in fact feared arrest by the “PSB” (Public Security Bureau) because of his religious beliefs and practices, he would have said so; but the first applicant did not say he feared being arrested on his return to China.[27]
h)Eighth, the Tribunal found it implausible that the first applicant would be a member and leader of the underground church for many years until he left China in 2014 without having any contact with the authorities after 1999.[28]
i)Ninth, the applicants arrived in Australia in May 2014 on temporary visitor visas that were valid for six months until November 2014, but they applied for a Protection visa a few days before their visitor visas were due to expire. The Tribunal considered that this delay in applying for a Protection visa was not consistent with the first applicant’s claims, even if account is taken of the grave illness of the applicants’ son.[29]
j)Tenth, although the first applicant answered questions about the Bible correctly, and correctly identified there are seven sacraments, he was unable to name all of them. The Tribunal found that if the first applicant were a Roman Catholic all his life he would be aware of all the sacraments.[30]
[20] CB201-202, [21]
[21] CB202, [22]
[22] CB202, [23], [24]
[23] CB202, [24]
[24] CB202, [25], [26]
[25] CB203, [27]
[26] CB203-204, [32]-[34]
[27] CB204, [36]
[28] CB204, [37]
[29] CB204-205, [38]-[39]
[30] CB205, [41]
The Tribunal referred to the daughter’s statutory declaration, and in particular to the matters I have reproduced in paragraph 17 of these reasons, and concluded it did not accept the evidence contained in that passage. The Tribunal relied on the following matters:
a)The first applicant gave evidence that he had been attending mass and Bible study classes in Australia; and the mass and Bible study classes are conducted in the Mandarin language, not in the Fuqing dialect.[31]
b)In his response to hearing invitation for both hearings the first applicant nominated an interpreter in the Mandarin language, and not in the Fuqing dialect.[32]
c)The Tribunal’s file indicates that an officer of the Tribunal spoke to the first applicant’s migration agent on 24 October 2016 who informed the officer that the first applicant and his daughter required a Mandarin interpreter, not a Fuqing interpreter.[33]
d)At the beginning of the first day of the hearing the Tribunal checked with the first applicant and the applicants’ daughter whether they had any difficulty understanding the Mandarin interpreter, and they both responded “no”; and that the Tribunal explained to them that if they had any problems during the hearing it was important that they inform the Tribunal immediately.[34]
e)At the beginning of the first day of the hearing the applicants’ migration agent informed the Tribunal that the second applicant was not a witness in the case, that she only spoke Fuqing, and that a Fuqing interpreter was not available.[35]
[31] CB206, [44]
[32] CB206, [44]
[33] CB206, [44]
[34] CB206, [45]
[35] CB206, [45]
For these reasons, the Tribunal found the first applicant “fabricated his material claims for the purpose of obtaining Protection visas”.[36] The Tribunal, therefore, did not accept the first applicant was a member of the underground Roman Catholic Church in China and any of the claims the first applicant made “that flow from that”; or that he is or was of adverse interest to the Chinese authorities, or that the first applicant will be arrested by the PSB, imprisoned and subject to persecution by the Chinese authorities if he returns to China.[37]
[36] CB208, [56]
[37] CB208, [58]
Although the Tribunal accepted the first applicant has been attending a particular Catholic Church in Australia, and had been attending Bible study classes at that Church since October 2014, the Tribunal found the first applicant’s involvement with that Church is primarily for the purpose of obtaining a Protection visa, although it accepted that the first applicant’s involvement with the Church may also have been motivated by the community support he receives, particularly after the death of his son, and the social interaction.[38] The Tribunal did not accept the first applicant will practice Roman Catholicism in an underground Roman Catholic Church if he returns to China and, for that reason, the Tribunal was not satisfied that if the first applicant returns to China he will disseminate anti-government information to members of the public, escort priests from village to village, or act as a liaison person for the underground Roman Catholic Church.[39]
[38] CB208, [59]
[39] CB208, [60]
The Tribunal, therefore, was not satisfied the first applicant satisfied the criteria for the grant of a Protection visa prescribed by s.36(2)(a) or s.36(2)(aa) of the Act.
Grounds of application and course of hearing
The applicants, who are not legally represented, rely on the following grounds stated in the application (errors in original).
1.I do believe the Administrative Appeals Tribunal (AAT) has erred of law when she has made her decision for the following reasons.
2.During the hearing before the Tribunal it was very apparent the Tribunal was very biased against my responses. Regardless of the contents or the manner in which I responded, the Tribunal had already established a negative perspective on the credibility of my evidence. The Tribunal never attempted to consider my responses as truths and deliberately looked for faults with everything I said.
3.The Tribunal raised concerns over the credibility of my claim that my daughter are devout Roman Catholics given the difficulty in our attempts to express our knowledge during the hearings. In my daughter’s statutory declaration, we responded by reminding the Tribunal Mandarin was not our mother language and that whilst we can speak it, we cannot express deeper and more complex thoughts in Mandarin, the Tribunal did not change their stance citing our choice of Mandarin interpreters in both hearings to be the main reason behind their assumptions of our Mandarin abilities. To this point I must remind the Tribunal that we initially requested for Fuqing dialect interpreters in our initial application for review lodged on 14 October 2015, but we were refused because we were told there were none available for Fuqing dialect interpreters. Consequently, we changed to Mandarin interpreters. Our choice of interpreters was forced onto us give the circumstances and should not be a reason to assume our ability to communicate in Mandarin if we were given the opportunity, there is no doubt we would have chosen Fuqing dialect interpreters.
4.Additionally, I do not accept the Tribunal’s methodology in ascertaining my level of understanding in regards to Roman Catholicism. Specifically, the methodology that the Tribunal used was short, arbitrary questioning of Roman Catholic teachings that come from the Tribunal’s own choosing. This type of examination is comparable to that of schooling children and is flawed in so many regards. How can you gauge someone’s affiliation with their religion with a few arbitrary questions? Even if the questions were designed by Roman Catholic specialists, such a small sample size of questions should not be enough to confirm anything. I reiterate once more that my wife and I, as well as my daughter are indeed devout Roman Catholics and our knowledge of our religion is extensive to say the least. I do not accept the Tribunals assumptions of my Roman Catholic knowledge and I certainly do not accept their methodology in ascertaining their assumptions.
5.I had a son . . . who was granted protection by the then Refugee Review Tribunal (RRT) prior to his unfortunate passing. In his successful application, the RRT accepted that he was a Roman Catholic, that he came from a devout Roman Catholic family and that this was part of the reason he required the protection of the Australian government. Given the Tribunal had accepted all the above previously, it is very contradicting for the Tribunal to believe the opposite now in my case. Judging by the fact that the Tribunal has considered my daughter and my own application together it is very logical to assume it is just as fair for the Tribunal to refer to my son’s application when looking at my own. As the Tribunal has the relevant information in my son’s application to confirm my daughter and my status as devout Roman Catholics yet chose to ignore it, I can only imagine there to exist some sort of predetermined confirmation of my claims which, once again, obstructs my rights to a fair and reasonable opportunity at seeking protection.
The applicants also filed a document titled “Submissions” (Applicants’ Submissions). That document claims the Tribunal failed to consider the applicants’ evidence properly and fairly; the Tribunal conducted itself in a manner so as to give rise to a reasonable apprehension of bias; the Tribunal made findings based on unwarranted assumptions; and the Tribunal did not assess the applicants’ claims fairly and carefully.
The application for remedies under s.476 of the Act came before me for hearing on 5 February 2020. As is my usual practice I explained to the applicants the purpose of the hearing and the procedure that was to be followed. The first applicant made submissions for both applicants. In the course of counsel for the Minister delivering her submissions in reply, the second applicant manifested severe distress which, even after a short adjournment, could not be placated. I adjourned the matter part heard to 18 February 2020.
On the resumed hearing the first and second applicants again appeared, and counsel for the Minister completed her submissions in reply. The first applicant, however, made additional submissions. He made submissions about the second applicant not having given evidence before the Tribunal. The first applicant said:[40]
AAT called me – called my agent that they couldn’t find a Fujian interpreter. My agent told him that my wife couldn’t understand Mandarin, and my Mandarin is no good. But AAT insisted that they couldn’t find a Fujian interpreter and persuaded us to use a Mandarin interpreter because we had no choice about had to accept that in this situation. AAT said that my wife was not the main applicant and that she doesn’t understand Mandarin is not important. But my wife was also one of the applicants and is also my supporter. Of course, her evidence is also very important. In other word, if my wife’s witness or evidence is not important, then why would AAT have invited my wife to participate in the hearing? .....
[40] 18.02.2020, T5.20
The first applicant repeated this submission later in the hearing:[41]
The other point I will say that what happened on 24 October 2016, AAT made a phone call to my agent. My – my agent didn’t agree that the Fujian language it would be used. My agent said that my wife didn’t understand Mandarin and my Mandarin was no good but AAT insisted that a Fujian interpreter couldn’t be found. It was the only other in this situation. We had no other options so we had to agree in using the Mandarin interpreter. So the AAT officer talked to my agent. AAT can find – can investigate …… can get the tape recording on 24 October 2016 and listen to it.
AAT said that they couldn’t find a Fujian interpreter but why, now, you are using a Fujian interpreter? So AAT lied to us. AAT was biased when hearing my case. It was not fair and I want AAT to hear my case again, using a Fujian interpreter.
[41] 18.02.2020, T12.40-13-5
The second applicant also made a submission about this subject. She said the “AAT forced us to use a Mandarin interpreter. That’s not right”.[42] Near the end of the hearing the following exchange occurred between me and the applicants:[43]
[42] 18.02.2020, T13.35
[43] 18.02.2020, T14.20
HIS HONOUR: . . . . So Ms Applicant, do you want a five-minute adjournment so that you can compose yourself and then I can come back here, and then you can tell me calmly – as calmly as you can what it is you want to say to me? Or do you want to say something to me now? Or do you want to say nothing further at all?
THE INTERPRETER: I don’t know what to say but if you have anything to say you can say it. Maybe you should tell his Honour. So she wants ..... to give us another chance to go before the Tribunal using a Fujian translator.
HIS HONOUR: I understand, but my question is directed to your wife, Ms Applicant and I want to hear from her whether she wants a short adjournment so she can compose herself, or if she wants to tell me what she wants to say now, or she wants to say nothing further at all. I’m asking that question of your wife Ms Applicant. Ms Applicant, can you please tell me what you want to do.
THE INTERPRETER: But if your Honour gives her – gives me a fair – a fair judgment I was refused before and I – people said that I did not have the ability but I want to go back and to have the second chance to say what I want to say.
HIS HONOUR: All right.
THE INTERPRETER: To have a fair judgment.
HIS HONOUR: Is there anything else you wish to say, Ms Applicant?
THE INTERPRETER: Nothing further.
The first applicant also made submissions about whether the applicants informed the Tribunal they were having difficulty in understanding the interpreter. That is apparent from the following exchange:[44]
[44] 18.02.2020, T8.30
HIS HONOUR: . . . . I’m just going to ask you one more time: did you tell your representative or the tribunal at the hearing that you were having difficulty understanding the interpreter or that the interpreter wasn’t doing his job? It’s a simple question. Can you answer it, please? If you don’t want to, tell me.
THE INTERPRETER: No, but when I didn’t understand the question I kept asking for the meaning, but the member didn’t allow me to ask by raising the hand.
HIS HONOUR: So you weren’t allowed to say anything at the hearing before the tribunal; is that what you’re telling me now?
THE INTERPRETER: No, I can’t say that. Not everything. Not everything. I was allowed to talk. But when I didn’t understand – when I thought he was not clear, I asked questions – tried to – tried to understand it, but the tribunal didn’t allow me to clarify the questions.
HIS HONOUR: Have you heard the recording recently?
THE INTERPRETER: I didn’t but I know what happened ‑ ‑ ‑
HIS HONOUR: All right.
THE INTERPRETER: - - - in the hearing. So ..... the evidence here – it’s not – I can’t make it out.
Immediately after this exchange I informed counsel for the Minister that I proposed to listen to the audio recording of the hearing before the Tribunal.
At the conclusion of the hearing I ordered that the matter be listed for judgment on 12 March 2020. That order was subject to the following note, namely:
Submissions have been made by the applicants about what occurred and did not occur at the hearing before the Administrative Appeals Tribunal. The lawyers for the Minister will provide to the associate of Judge Manousaridis an audio recording of that hearing and Judge Manousaridis will be at liberty to hear that recording.
The lawyer for the Minister provided to my associate an audio recording of the first day of the hearing. After listening to part of the audio recording of the hearing, on 9 March 2020 I instructed my deputy associate to send the following letter to the parties (9 March Letter):
His Honour has requested that I bring the following matters to the attention of the parties.
As his Honour indicated at the hearing on 18 February 2020, his Honour proposed to listen to the audio recording of the hearing before the Tribunal. His Honour has commenced listening to the recording.
Shortly after the commencement of the hearing, the Tribunal member requested the interpreter, the applicant’s daughter (who appeared as part of a combined hearing of her and the applicants’ applications for review), and then the applicants to each take the oath. When the second applicant was being administered the oath, the applicants’ agent, Mr Huang, said the second applicant could not understand Cantonese or Mandarin; she could only understand Fuqing. Mr Huang said he had requested a Fuqing interpreter, but the Tribunal had informed him it could not find a Fuqing interpreter. After, in answer to a question from the Tribunal member, Mr Huang confirmed the second applicant could not speak Mandarin, the Tribunal member asked Mr Huang whether he wanted the second applicant to give evidence. Mr Huang said no; but Mr Huang appears to have added “because that is the problem”, perhaps implying that the reason Mr Huang was not going to get the second applicant to give evidence was the unavailability of a Fuqing interpreter.
His Honour would appreciate the parties filing and serving written submissions by 18 March 2020 that address the following matters:
1.Does the recording record that Mr Huang stated to the Tribunal member that Mr Huang, on behalf of the applicants, requested a Fuqing interpreter for the hearing but the Tribunal informed him that it could not locate a Fuqing interpreter?
2.Does the recording record that, shortly after Mr Huang informed the Tribunal that he did not want the second applicant to give evidence, Mr Huang said “because that is the problem” or some other words to the effect? And, if so, by conveying such words did Mr Huang impliedly represent to the Tribunal that he did not propose to have the second applicant give evidence because a Fuqing interpreter was not available?
3.To the extent 1 or 2 or both are answered in the affirmative:
(a)Are the express or implied representations Mr Huang made to the Tribunal about the reason no Fuqing interpreter was before the Tribunal incorrect?
(b)To the extent a) is answered in the affirmative, does that afford a reason for submitting that the second applicant, or both applicants, were not given a hearing of the standard required by s.425(1) of the Migration Act 1958 (Cth)?
4.Do the parties require a further oral hearing, or are the parties content for his Honour to consider the further submissions without any further hearing?
Because his Honour has requested the parties file additional written submissions, the current listing for judgment at 9.30 on 12 March 2020 will be vacated.
On 16 March 2020 the applicants filed a document titled “Submissions” (Applicants’ Post Hearing Submissions). In that document the applicants:
a)refer to the first applicant having answered question 11 of Form C of their application for a Protection visa that, if called for an interview, they would need an interpreter, and the “language(s) and dialect” for which they would require an interpreter was “Chinese/Fuqing”;
b)stated the second applicant “also clearly indicated on Question 12 of Form D, that she would request a Chinese/Fuqing interpreter if she needed an interview”;
c)refer to their nominating in their form of application for review to the Tribunal an interpreter in the “Chinese/Fuqing” language and dialect;
d)assert that before the hearing, an officer of the Tribunal contacted the applicants’ migration agent over the phone and said the Tribunal could not find a Fuqing interpreter, and asked whether the Tribunal could arrange a Mandarin or Cantonese interpreter;
e)assert that after the agent contacted the applicants, “he clearly indicated [to] the Tribunal” that the applicants “do not speak and understand any Cantonese”, the applicants’ daughter “could speak and understand Mandarin”; the first applicant “could speak some Mandarin but not good because [the first applicant’s] native language is Fuqing”, and the second applicant “could only speak Fuqing”, and “was unable to speak or understand Mandarin”, but that “[c]onsidering [the second applicant] was a secondary applicant who might not need to give evidence at the hearing, the Tribunal officer then suggested arranging a Mandarin interpreter for [the applicants] first, seeing what would be [sic] happen”; and
f)assert that at the beginning of the hearing when the second applicant was taking the oath the applicants’ agent “requested a Fuqing interpreter but the Tribunal had informed him it could not find a Fuqing interpreter”; that when he was so informed the applicants’ agent told the Tribunal “that was a “problem”” which meant the first applicant “could not have a genuine chance to give evidence and present arguments relating to the issues arising in [the applicants’] case at the hearing before the Tribunal because a Fuqing interpreter was not available and [the first applicant’s] Mandarin was poor”.
The assertions of fact contained in the Applicants’ Post Hearing Submissions are not made in an affidavit and, therefore, are not evidence. For the purposes of these reasons, however, I will assume the assertions have been made in an affidavit which has been read into evidence, but which has not been the subject of cross examination. That does not mean I would be bound to accept as true the matters asserted in the Applicants’ Post Hearing Submissions.[45]
[45] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at pages 586 ff
On 19 March 2020 the Minister filed written submissions in response to the 9 March Letter. In paragraph 14 of those submissions there was set out a passage from what was described as “Transcript page 5-6”. On 21 May 2020, at my request, my associate enquired whether the Minister would make available the document referred to as a “transcript”. The lawyer for the Minister sent an email on 21 May 2020 as follows:
The Minister has an informal, partial transcript, being a transcript prepared by MinterEllison of the first 45 minutes of the first hearing in order to assist counsel to prepare the submissions.
Is his Honour content to receive that document in that form, or should it be verified and provided formally by way of affidavit, which we should be able to do today?
At my direction my associate responded with an email stating that “His Honour would be grateful with being provided with the informal transcript which he would only use as an aid to hearing the recording”. The lawyer for the Minister provided the transcript. In the end, however, I did not rely on the transcript at all, but relied wholly on my listening to the recording.
The Minister did not state he required a further oral hearing. Nor did the applicants in the Applicants’ Post Hearing Submissions, although I should note that, although the applicants received the 9 March Letter, the applicants attended court on 12 March 2020. I arranged for the matter to be mentioned before me, and I explained to the applicants the effect of the 9 March Letter. I arranged for a transcript of that appearance to be sent to the parties.
Questions for determination
The principal question or, rather, set of questions, that arise relates to the complaints the applicants make about there being a Mandarin, rather than a Fuqing, interpreter, at the hearing before the Tribunal. The applicants make two claims. The first is the applicants requested a Fuqing interpreter at the hearing before the Tribunal, but they were provided with a Mandarin interpreter. The second is that the provision of a Mandarin, rather than a Fuqing, interpreter, deprived the applicants of a meaningful hearing. I propose, therefore, to deal with these two claims first. I will then deal with the other grounds contained in the application.
Did the applicants request a Fuqing interpreter?
The documentary evidence on this question is unequivocal. The applicants, through their agent, requested a Mandarin interpreter. They made that request by completing and submitting the Hearing Attendance Form,[46] and the Further Hearing Attendance Form.[47] The first applicant’s signature appears on both these documents. Further, there is the record of the telephone conversation of 24 October 2016 between a Tribunal officer and a person described as the applicants’ “rep” which records the “rep” being asked whether the applicants would prefer a Fuqing interpreter or a Mandarin interpreter. I find that “rep” is a reference to the applicants’ migration agent.
[46] CB150-152
[47] CB178
This, however, is not the only material that is before me. First, there is what occurred at the beginning of the first day of the Tribunal hearing, the substance of which is set out in the 9 March Letter, namely, that when the oath was being administered to the second applicant the applicants’ agent, Mr Huang, said the second applicant could not understand Cantonese or Mandarin; she could only understand Fuqing; and that he, Mr Huang, had requested a Fuqing interpreter, but the Tribunal had informed him it could not find a Fuqing interpreter. Mr Huang also seemed to suggest that the reason the second applicant would not be giving evidence is that a Fuqing interpreter was not available. These statements are inconsistent with the documentary evidence, and in particular, the Hearing Attendance Form, the Further Hearing Attendance Form, and the record of the Tribunal officer’s conversation on 24 October 2016 with the applicants’ “rep”. Although inconsistent, the Tribunal made no comment in response to Mr Huang’s statements.
The other material before me is the Applicants’ Post Hearing Submissions. The effect of the assertions contained in those submissions is that the applicants requested a Fuqing interpreter but there was no such interpreter available. If that is all the assertions conveyed, and if the contemporaneous documentary evidence is ignored, it would be reasonably open to me to accept that the applicants in fact believed that were the case; and that is because that is the effect of what their agent said to the Tribunal at the beginning of the hearing on 13 December 2016. But the assertions the applicants make in the Applicants’ Post Hearing Submissions go beyond conveying the simple assertion that they requested, but were not provided with, a Fuqing interpreter.
a)First, the applicants assert an officer of the Tribunal contacted the applicants’ migration agent over the phone and said the Tribunal could not find a Fuqing interpreter, and asked whether the Tribunal could arrange a Mandarin or Cantonese interpreter.
b)Second, the applicants assert that at the beginning of the hearing when the second applicant was taking the oath the applicants’ agent “requested a Fuqing interpreter but the Tribunal had informed him it could not find a Fuqing interpreter”; and that when he was so informed the applicants’ agent told the Tribunal “that was a “problem””.
The first of these assertions is inconsistent with the documentary evidence to which I have referred; and the second is inconsistent with what occurred at the Tribunal hearing, as recorded in the audio recording of the hearing. The applicants do not refer to the Hearing Attendance Form, the Further Hearing Attendance Form, the record of the Tribunal officer’s conversation on 24 October 2016 with the applicants’ “rep”, or the audio recording of the hearing; and, therefore, they have not attempted to explain the inconsistencies between their assertions and the documentary evidence, and in particular, the first applicant’s signature appearing on the Hearing Attendance Form, the Further Hearing Attendance Form, or the circumstances in which those documents were prepared. For these reasons, even if the applicants had sworn to the truth of the assertions contained in the Applicants’ Post Hearing Submissions I would not have accepted the assertions to the extent they are inconsistent with the documentary evidence I have identified.
Let me assume, however, that the assertions purport to reflect what the applicants’ agent said to them and, to the extent that is inconsistent with the documentary evidence, the agent had misled them; and that the applicants’ being so misled would bring into play the principles considered by the High Court in SZFDE v Minister for Immigration and Citizenship.[48] On these assumptions, the question that would arise is whether the agent’s having misled the applicants about the unavailability of a Fuqing interpreter subverted the operation of s.425 of the Act or otherwise subverted the Tribunal’s exercise of its jurisdiction. The determination of that question would turn on the determination of the second issue, namely, whether the hearing having been conducted with the assistance of Mandarin, rather than a Fuqing, interpreter, deprived either or both the applicants of a meaningful invitation under s.425(1) of the Act. If that question is answered in the negative, any deception by the applicants’ agent about the unavailability of a Fuqing interpreter would not have subverted the operation of s.425 of the Act, or of the Tribunal’s jurisdiction because even with the Mandarin interpreters that were provided on the two days of the Tribunal hearing the applicants would have been given a hearing such as to render meaningful the invitation the Tribunal gave to the applicants under s.425(1) of the Act.
[48] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Did the applicants receive a real and meaningful invitation?
This question arises because of the construction that has been given to s.425(1) of the Act, which provides that the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. I reviewed elsewhere some of the authorities that have considered this aspect of s.425(1) of the Act;[49] and it will be sufficient if I repeat the following passage from the judgment of the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (emphasis added):[50]
Pursuant to s425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture . . . .
It is clear that s425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be . . . :
On the other hand, it is also clear that s425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health . . . They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: . . . . They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate . . .
[49] BVM15 & Ors v Minister for Immigration & Anor [2017] FCCA 3141, at [34]-[40]
[50] [2003] FCAFC 126, at [33], [36] and [37]
It will be necessary to consider the positions of the first and second applicants separately. That is so because the second applicant applied for a Protection visa, not on the basis of a claim that she was in need of protection, but as a member of the first applicant’s family unit.
The position of the second applicant
Whether second applicant was entitled to invitation. The first question to consider is whether, given the second applicant applied as a member of the first applicant’s family unit, she was entitled to an invitation under s.425(1) of the Act. That turns on provisions in the Act and the Migration Regulations 1994 (Cth) (Regulations) as they applied on 3 November 2014, being the day on which the applicants applied for a Protection visa.[51]
[51] For ease of expression I will refer to the relevant provisions in the present tense.
The starting point is s.29(1) of the Act which provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, and to remain in Australia. Subsection 31(1) of the Act provides there are to be prescribed “classes of visas”. Subsection 31(2) provides that, as well as the prescribed classes of visa, there are the classes of visa provided for by the provisions identified in s.31(2). Relevant to the matters before me is the class of visa provided for by s.36 of the Act.
Having conferred on the Minister the power to grant a visa, the Act and Regulations regulate the means by which the Minister may grant visas. This depends on a non-citizen applying for a visa; and under s.45(1) of the Act, such non-citizen must apply for a particular class of visa. It also depends on the non-citizen making a valid application for a visa, being an application that complies with the requirements of s.46 of the Act. That is so because under s.65(1) of the Act the Minister may grant the visa for which an application is made only after he or she considers a “valid application for a visa”.
Next, it is necessary to consider the circumstances in which the Minister must grant or refuse to grant a non-citizen a visa that is the subject of a valid application. These are provided by s.65(1) of the Act. The Minister must grant a visa of the class which is the subject of a valid application for a visa if, among other things, “criteria for it prescribed by this Act or the regulations have been satisfied”. The class of visa for which the applicants applied is a protection visa provided for by s.36 of the Act which specifies the criteria for the grant of a Protection visa. Subsection 36(2) is relevant:
A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
Under s.5(1) of the Act the expression “member of the family unit” of a person “has the meaning given by the regulations made for the purposes of this definition”. Reg.1.03 of the Regulations provides that “member of the family unit” has the meaning set out in reg.1.12 of the Regulations. Subregulation 1.12(2) provides that, subject to matters not relevant, a person is a member of the family unit of another person (referred to as “the family head”) if the person is, among other things, a spouse of the family head.
Thus, a non-citizen is entitled to be granted a Protection visa if, among other things, the non-citizen is the spouse of a person – “the family head” - who has been granted a Protection visa because “the family head” has satisfied the requirements of s.36(2)(a) or s.36(2)(aa) of the Act. The criterion of membership of a family unit provided for by s.36(2)(b) and s.36(2)(c) of the Act, therefore, is entirely dependent on “the family head” being granted a Protection visa; and whether or not such non-citizen satisfies the criteria provided for by s.36(2)(b) and s.36(2)(c) depends on the non-citizen satisfying the definition of “member of the family unit”.
That, then, leads me to the provisions relating to applications for review to the Tribunal from decisions of the Minister or of his or her delegate refusing to grant an applicant a Protection visa. That depends on whether the decision is a Part 7-reviewable decision within the meaning of s.411 of the Act. If the decision is a Part 7-reviewable decision, a non-citizen who “is the subject of the” decision may apply for review to the Tribunal under s.412(1) of the Act, provided the requirements of that section are met. Once an application for review has been properly made under s.412 of the Act, the provisions of Part 7 apply to the conduct of the review. These include s.425(1).
A non-citizen who applied for a Protection visa on the basis that he or she satisfied the criteria provided for by s.36(2)(b) and s.36(2)(c) of the Act, but was refused a Protection visa only because “the family head” was not granted a Protection visa, is entitled to apply for review of the delegate’s decision; and the Tribunal must invite such non-citizen to appear before the Tribunal to give evidence and present arguments. The invitation to such non-citizen must be meaningful, just as an invitation to “the family head” must be meaningful; but what is required for a meaningful hearing differs according to whether an applicant is “the family head” or a member of the “the family head’s” family unit. A meaningful hearing for an applicant who relies only on satisfaction of the criteria provided for by s.36(2)(b) or s.36(2)(c) would be restricted to whether he or she is a member of the family unit of “the family head”, and to whether the applicant proposed to give evidence that is relevant to whether “the family head” should be granted a Protection visa.
Required standard of real and meaningful invitation. The effect of these provisions is that the second applicant was entitled to be given an invitation under s.425(1) of the Act, even though she applied for a Protection visa on the ground that she was the spouse of the first applicant. What was required for the invitation to be meaningful, however, differed between the first and second applicants. That follows from the text of s.425(1) of the Act; it requires an invitation to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. Those issues differed between the first and second applicants.
The issues in relation to the first applicant were whether he satisfied the criteria provided for in s.36(2)(a) or s.36(2)(aa) of the Act; the issues for the second applicant, if the Tribunal decided to raise them as an issue, were whether the second applicant was the spouse of the first applicant and (theoretically) whether the first applicant held a Protection visa. The Tribunal accepted the second applicant was the spouse of the first applicant; and there is no question that the first applicant did not hold a Protection visa. So far as the second applicant was concerned, therefore, there was no issue arising in relation to the decision under review that called for the second applicant to give evidence and present arguments in relation to the grounds on which the delegate refused to grant the second applicant a Protection visa. That means that, unless there is a basis for inferring that the second applicant intended to give evidence on issues arising in relation to the delegate’s decision to refuse the first applicant a Protection visa, the second applicant’s not giving evidence before the Tribunal would not lead me to conclude that the invitation that had been given to her was not meaningful.
Whether second applicant intended to give evidence. The next question is whether the second applicant intended to give evidence. The only evidence before me that might suggest the second applicant had such intention is the statement the applicants’ agent made at the hearing that he did not propose to present the second applicant to give evidence because a Fuqing interpreter was not available. There is nothing in the material before me, however, that suggests, or which could reasonably have suggested to the Tribunal, that the second applicant intended to give evidence about anything.
a)The second applicant did not make a claim for protection on her own behalf; she did not provide any statement; and she did not at any stage indicate she proposed to give any evidence.
b)The hearing before the Tribunal occurred over two days, on 13 and on 16 December 2016. If the second applicant did intend to give evidence, but she was unable to do so because there was no Fuqing interpreter at the hearing on 13 December 2016, the second applicant had an opportunity before the hearing resumed on 16 December 2016 to raise these concerns with the applicants’ migration agent. There is no evidence the second applicant raised any such concerns.
c)After the Tribunal hearing the applicants’ agent provided to the Tribunal the daughter’s statutory declaration. That deals with a number of matters, not only in relation to the first applicant’s claims for protection, but also in relation to the daughter’s claims for protection. The statutory declaration did not refer to the second applicant, or to the second applicant’s not having been given an opportunity to say anything to the Tribunal; it did not identify any matters the second applicant wished to say, or to the second applicant’s wishing to say anything about the first applicant’s or the daughter’s claims for protection.
Conclusion. I am not satisfied the second applicant was not given a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments. That means that even if the agent had misled the second applicant about the unavailability of a Fuqing interpreter, that would not have subverted the operation of s.425 of the Act or otherwise have subverted the Tribunal’s exercise of its jurisdiction.
Position of the first applicant
The first applicant makes two complaints. The first is one he made at the hearing before me, namely, that during the hearing before the Tribunal the Tribunal member did not permit the first applicant to ask questions when he did not understand the interpreter, and the Tribunal member did not allow the first applicant to clarify questions. The second complaint the first applicant makes is that stated in ground 2, and which in substance repeated the matters raised in the paragraph from the daughter’s statutory declaration that I reproduced earlier in these reasons; and that is there being a Mandarin interpreter rather than a Fuqing interpreter prevented the first applicant from expressing “deeper and more complex thoughts” about his Roman Catholicism.
What occurred at the Tribunal hearing. Relevant to my consideration of these two complaints is what occurred at the Tribunal hearing. As I have already noted, at my request the Minister’s lawyer provided to my chambers an audio recording of the hearing before the Tribunal. The hearing may conveniently be divided into seven phases. The first consisted of the Tribunal providing general information about the hearing, and the taking of oaths from the first applicant and the applicants’ daughter. I listened this part of the recording. The second phase consisted of the Tribunal asking questions of a priest of the Catholic Church the applicants attend (Father X). I listened to this part of the recording. The third phase consisted of the Tribunal asking the first applicant questions, and the first applicant responding to those questions. I also listened to this part of the recording. The fourth phase consisted of the Tribunal asking the applicants’ daughter questions and the daughter responding to those questions. I did not listen to this phase of the hearing. The fifth phase consisted of the Tribunal putting to the first applicant a number of its concerns with the evidence the first applicant had given, and the first applicant providing his responses to those concerns. I listened to this part of the recording. The sixth phase consisted of the Tribunal putting its concerns to the daughter. I did not listen to this part of the recording. The final phase consisted of the Tribunal member having a short discussion with the agent about the agent providing additional material within one week. I listened to that part of the recording.
In the first phase of the hearing, the Tribunal asked the first applicant and his daughter whether they had any difficulty understanding the Mandarin interpreter. They both responded “no”. The Tribunal said that “if at any time during the hearing you have any problem understanding it’s very important you let me know immediately”; that “it’s very important that you understand what I’m saying and I understand what you’re saying”; that “if I have any concerns that that’s not happening here today, I will be adjourning this hearing”; and “it’s up to you to tell me if you don’t understand what’s being said”.[52] In the second phase of the hearing Father X gave evidence about the first applicant’s Bible reading classes, and said that those classes were conducted in the Mandarin language.[53]
[52] This occurred at around 14.40-16.00 into the recording of the hearing on 13 December 2020.
[53] At around 25:10 into the hearing
The first applicant then gave evidence. On topics other than those concerning the first applicant’s knowledge of Roman Catholicism, I detected no difficulty in the exchanges between the Tribunal member and the interpreter, or between the interpreter and the first applicant. On occasion the first applicant spoke at the same time as the interpreter, and the Tribunal member brought this to the attention of the first applicant by asking the first applicant to stop speaking; but this did not occur frequently. I did notice, however, that on the first day of the hearing the interpreter experienced some difficulty in interpreting part of what the first applicant said about religious matters. This occurred at two places.
The first occurred in answer to the Tribunal’s questions about whether the first applicant had to do anything before he was baptised. The first applicant said his parents had given him notes. The first applicant said he brought those notes, and he proceeded to read the notes. At that point the interpreter said: “I can’t translate exactly because I do not fully understand these things”.[54] The first applicant continued to read, and the interpreter interpreted what the first applicant read. The Tribunal asked whether the first applicant was “reciting our father”. The first applicant responded that the things he stated were “the things we are taught to read”.[55] (This, incidentally, might suggest that the notes from which the first applicant was reading were written in Mandarin.)
[54] At around 57.50 into the hearing
[55] At around 1:00:00 into the hearing
The second occasion occurred when the Tribunal asked the first applicant questions about his knowledge of the sacraments. The following is what I heard:[56]
[56] This part of the Tribunal hearing was initially transcribed by my deputy associate at my direction, but it reflects what I heard when I listened to the recording.
1:53:20
TM:How many sacraments are there?
1:53:24 – 1:53:30 – Talk between first applicant and interpreter
INT:There’s seven… seven sacraments
TM:Can you tell me what they are?
1:53:35 – 1:54:33 – Talk between first applicant and interpreter
INT:Criss Coptic, Corpus Christine and also confirmation, wedding, ah I don’t know exactly the other names but I can’t translate this everything what he’s saying
TM: How many did you say?
INT: Seven
AGT: Can you check with the dictionary?
INT: I don’t have dictionary
AGT: I am asking my client to translate . . *unclear* . .
TM: You didn’t bring your dictionary? What’s the first one called?
1:55:14 – 1:55:21 – Talk between first applicant and interpreter
INT:Baptism
1:55:27
TM:Please don’t prompt him Mr Huang
AGT:I’m sorry, because I’m asking my client . . *unclear* . . Sacraments in Chinese but the . . *unclear*. . can’t be translated into English
TM:What’s the last one called?
1:55:43 – 1:56:33 – Talk between first applicant and interpreter
INT:Before they die, before they die they use…
1:56:34 – 1:56:41 – Talk between first applicant and interpreter
TM:Sir stop, stop… please don’t talk while he’s talking
INT:. .*unclear* . . people is going to die the priest will come and put some oil on the forehead
TM:Okay, if you talk while he’s talking, he can’t talk and listen at the same time
1:57:00 – 1:57:05 – Talk between first applicant and interpreter
TM:Is being a Roman Catholic important to you?
1:57:08 – 1:57:12 – Talk between first applicant and interpreter
INT:It’s very important
TM:Why?
1:57:14 – 1:57:20 - Talk between first applicant and interpreter
INT: That’s because this church was established well, Jesus is alive, is alive
TM:Why is that important?
1:57:35 – 1:57:57 – Talk between first applicant and interpreter
INT:Because ah when the Jesus enters the paradise . .*unclear* . . and that he is surrounded . .*unclear* . . and when he went to the church to the other person and to manage this church
1:58:15 – 1:58:19 - Talk between first applicant and interpreter
INT:. .*unclear* .
INT: The name is . .*unclear* . . I don’t know how to pronounce this name
AGT: Peter
INT:Peter yeah it’s a Peter… who manage this church
1:58:38
TM:Who is Peter’s representative today?
1:58:40 – 1:59:08 – Talk between first applicant and interpreter
INT:That was our church’s you know principal… ah no… I don’t know how to say… that the church has a ah
TM:What’s his name?
1:59:24 – 1:59:34 – Talk between first applicant and interpreter
AGT: Francis
INT:Francis
TM:Do you think it is important to follow the teachings of the Pope?
INT:Ah sorry again
TM:Do you think it is important to follow the teachings of the Pope?
1:59:53 – 1:59:59 – Talk between first applicant and interpreter
INT:Yes, it’s very important
2:00:00 – 2:00:03 – Talk between first applicant and interpreter
INT: Yes ah how do I pronounce . . *unclear* . .
TM: What do you think will happen if you return to China?
2:00:13
These were not the only occasions on which the first applicant gave evidence about his knowledge of Roman Catholicism. The first applicant also gave the following evidence on the second day of the Tribunal hearing:[57]
[57] This part of the Tribunal hearing was initially transcribed by my deputy associate at my direction, but it reflects what I heard when I listened to the recording.
2:02:07
TM: I also have some concerns in relation to your knowledge of Christianity
Interpreter translates
TM: It’s not consistent with someone who claims to have been a Roman Catholic all of their lives
Interpreter translates
TM: Do you want to make any response to that?
INT: Yes
2:02:30 – 2:02:43 – Talk between interpreter and first applicant
INT: Well although because my parents they are Christian so from the time I was young I was influenced by them and I knew there’s a God
2:02:51 – 2:03:10 – Talk between interpreter and first applicant
INT: So from the time I was young up until I was fit for baptism it was banished by the Chinese Communist Party, just didn’t have the courage to do anything
2:03:20 – 2:03:35 – Talk between interpreter and first applicant
INT: And so at that time my foundation was really weak and for old generations those families if they have older generations who go to the religion -
INT:- they only know a little bit, some basic information, basic scriptures
2:03:55 – 2:04:06 – Talk between interpreter and first applicant
INT: So for example Bible or something in depth for me could have really . .*unclear* . . …
2:04:11 – 2:04:17 – Talk between interpreter and first applicant
INT: Previously previously I only read or recited rosary
2:04:23 - 2:04:42 – Talk between interpreter and first applicant
INT: So previously my mother and other church members they said with Rosary is a really good and basically they has everything every blessings from the God
2:04:53 – 2:05:03 – Talk between interpreter and first applicant
INT: So and at that time you couldn’t get a copy of the Bible and you can barely see priest, maybe one, once per year or maybe twice per year, it was, it was interrupted by China Communist Party
2.05.19 – 2:05:43 – Talk between interpreter and first applicant
INT: So at that time didn’t really know anything in, anything deep, but after 1980s, after I received my baptism the priest showed up and got a teacher who talked to us about it then I learnt more and I learnt more in regards to my religion
2:05:58 - 2:06:09 – Talk between interpreter and first applicant
INT: I know the teacher said that there’s a God and that God loves people and you have to love each other through your behaviours, your actions
2:06:19 – 2:06:34 – Talk between interpreter and first applicant
INT: So I can understand in regards to the Bible or those knowledge that’s really deep I don’t really know but I know this in loving God and we need to spread those good messages
2:06:48 – 2:07:00 – Talk between interpreter and first applicant
INT: So because of love that is why God save us and why he was crucified and because of the love so that we can go to heaven
2:07:05 – 2:07:22 – Talk between interpreter and first applicant
INT: So that’s why the teacher said you have to love each other for example if you give a child a glass of water you are actually giving me a glass of water so mainly it’s just about . .*unclear* . . love
2:07:36 – 2:07:49
TM:I’m just about finished.
. . . .
TM: I have concerns in relation to your motivation for attending Church and Bible study classes in Australia
Int translates
TM: Do you want to make any response to that?
INT: I want to say
INT: Me too
2:09:14 – 2:09:28 – Talk between interpreter and first applicant
INT: Well either way we come to Australia we got freedom and in China there was no freedom and at that time even if you want to get a Bible study class to be set up it was difficult
2:09:39 – 2:09:56 – Talk between interpreter and first applicant
INT: And you know there’s no freedom in China and the Bible was a secret and those Church members in China they’ve barely got any Bibles at home
TM: That’s not correct, that’s not correct, you can go to a shop and buy a Bible in China
2:10:13 – 2:10:21 – Talk between interpreter and first applicant
INT: But in our area you can’t, you can’t buy a Bible, you can’t get it –
INT:- only distributed inside of the Church
2:10:30
Whether Tribunal prevented first applicant from asking for clarification. The passages I have set out above do not support the first applicant’s claims that the Tribunal member did not permit the first applicant to ask questions when he did not understand the interpreter, and that the Tribunal member did not allow the first applicant to clarify questions. And there is no suggestion in that part of the recording that I listened to that suggests the Tribunal member did not permit the first applicant to ask questions when he did not understand the interpreter, and that the Tribunal member did not allow the first applicant to clarify questions. I therefore do not accept this part of the first applicant’s claims.
Standard of Mandarin interpreter. I next turn to the first applicant’s claim that there being a Mandarin interpreter rather than a Fuqing interpreter prevented the first applicant from expressing “deeper and more complex thoughts” about his Roman Catholicism. I will take this to make the more general claim that the standard of interpretation that was offered by the Mandarin interpreter rather than a Fuqing interpreter prevented the invitation the Tribunal gave under s.425 of the Act from being a real and meaningful hearing.
I considered some of the principles concerning the relevance of interpretation to there being a meaningful hearing in response to an invitation given under s.425 of the Act elsewhere,[58] and I will not repeat them here. It will be sufficient if I set out the following passage from the judgment of Allsop CJ in SZRMQ v Minister for Immigration and Border Protection (emphasis added):[59]
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.
How the decision-maker approached the matter may [emphasis in original] 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 [emphasis in original] reasonably have had such an effect through its materiality or repetition or context.
[58] SZTFQ v Minister for Immigration [2016] FCCA 2970, at [56] – [65]
[59] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, at [9] – [10]
As I have already noted, and as is revealed from the passage set out in paragraph 63 of these reasons, the interpreter in the first hearing encountered some difficulties in interpreting the first applicant’s evidence. There are, however, a number of matters to note.
a)First, it is not clear whether the difficulty the interpreter encountered was due to the first applicant’s attempting to express himself in Mandarin, rather than in Fuqing. There is no evidence before me of what it is the first applicant intended to say, and whether he would have been able to express what he intended to say in Fuqing in a manner that was different to the manner in which he conveyed what he intended to say in Mandarin.
b)Second, such difficulties the interpreter encountered were apparent at the time the interpreter encountered them. They were certainly apparent to Mr Huang, the applicants’ agent, who asked whether there was a dictionary. Being aware of the difficulties, the applicants, through their agent, after the hearing of 13 December 2016, had an opportunity to assess whether, because of the interpreter’s difficulties, the first applicant failed to convey evidence he intended to convey; if so, whether the evidence the first applicant intended but failed to convey was relevant; and, if relevant, to take steps after the hearing of 13 December 2016 to convey to the Tribunal the evidence the first applicant intended to give. The only steps the applicants took, however, was to provide to the Tribunal the daughter’s statutory declaration that I have reproduced in paragraph 17 of these reasons. That statement, however, is expressed in general terms; it does not identify the particular evidence the first applicant would have given had there been a Fuqing interpreter; and there is no evidence before me of the evidence the first applicant says he would have given, had there been a Fuqing interpreter.
c)Third, the evidence before the Tribunal was that the first applicant attended Bible classes, and those classes were conducted in Mandarin. There is no evidence before me that suggest the first applicant attended Bible classes that were conducted in Fuqing. In those circumstances, it is inherently improbable the first applicant would have an ability to express in Fuqing “deeper and more complex” thoughts he had acquired about Roman Catholicism in classes conducted in the Mandarin language.
d)Fourth, at the second hearing the first applicant gave evidence in response to the Tribunal’s stated concerns about the level of the first applicant’s knowledge of Roman Catholicism. The passage I have reproduced above of the evidence the first applicant gave, and my hearing of the recording, discloses no apparent difficulty by the first applicant giving his evidence in Mandarin, and the interpreter interpreting that evidence.
The final matter I should note is that the applicants have not identified any particular translation error, or any evidence the first applicant failed to give because there was no Fuqing interpreter. In particular, the applicants have not identified the “deeper and more complex thoughts” the first applicant would have been able to express if a Fuqing interpreter were available rather than the thoughts the first applicant expressed in Mandarin. Further, apart from the passage set out in paragraph 63 of these reasons, my listening to the evidence the first applicant gave as recorded in the audio recording revealed no apparent difficulty either in the first applicant giving evidence in Mandarin, or either of the two interpreters interpreting into English what the first applicant said in Mandarin, or interpreting into Mandarin what the Tribunal said in English.
Conclusion. I am not satisfied the first applicant was not given a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments because the Tribunal hearing was conducted with the assistance of a Mandarin interpreter rather than with a Fuqing interpreter. That, in turn, means that even if the agent had misled the first applicant about the unavailability of a Fuqing interpreter, that would not have subverted the operation of s.425 of the Act or otherwise have subverted the Tribunal’s exercise of its jurisdiction.
Grounds 1 and 2
Ground 1 of the application is a general claim that the Tribunal had erred in law for the reasons given in the other grounds stated in the application. The first of those grounds is ground 2. It claims the Tribunal was biased. The ground does not identify the evidence on which the ground relies for claiming the Tribunal was biased. It appears to rely on nothing more than the Tribunal’s not having accepted the first applicant to be a credible witness on the essential elements of his claims for protection. That by itself is incapable of supporting a finding of actual or of reasonable apprehension of bias. The “fact that a decision-maker disbelieves, or is critical of, a party or a witness does not, of itself, indicate bias”.[60]
[60] Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 (Lindgren J)
Ground 2, therefore, fails.
Ground 3
This ground makes two claims. The first in effect repeats the claim the applicants’ daughter made in the daughter’s statutory declaration that the first applicant and his daughter were unable to express in Mandarin deeper and more complex thoughts about Roman Catholicism, implying they would have been able to do so in their “mother language”, Fuqing. The second claim is that the applicants initially requested a Fuqing interpreter; that request was refused because the applicants were told there was no Fuqing interpreters available; and, for that reason, the Mandarin interpreters were forced onto the applicants.
For reasons I have already given, I do not accept the applicants requested a Fuqing interpreter; and I am not satisfied the first or second applicants were denied a real and meaningful invitation under s.425(1) of the Act because the first applicant gave evidence in Mandarin rather than in Fuqing, or because the Tribunal hearing was conducted with the assistance of a Mandarin rather than with a Fuqing interpreter.
Ground 3, therefore, also fails.
Ground 4
This ground is directed to the Tribunal’s asking questions about the first applicant’s knowledge of Roman Catholicism. The ground claims the Tribunal applied arbitrary standards for assessing the knowledge a person who claims to be Roman Catholic should possess.
It is true the Tribunal asked the first applicant a number of questions about his knowledge of Roman Catholicism. That by itself, however, discloses no jurisdictional error. The first applicant’s claim for protection was based on his holding a particular religious belief; and as with all applicants who rely on a belief or opinion as an element of a claim for protection, the Tribunal is entitled to investigate whether the belief or opinion is genuinely held. The Tribunal will stray from this permitted task if the Tribunal investigates and determines the genuineness of a belief or opinion by applying an arbitrary standard, or by erecting itself as the authority of some body of principles and practices. That is the effect of the following passage from the judgment of the Full Federal Court in MZZJO v Minister for Immigration and Border Protection.[61]
The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge . . . .
[61] MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80, at [47]
The Tribunal referred to the first applicant’s being unable to name the seven sacraments, and the Tribunal said it would expect that if the first applicant has been a Roman Catholic all his life he would be aware of all of the sacraments. I am not satisfied, however, that the Tribunal applied an arbitrary standard, or that it held itself as an arbiter of Roman Catholic doctrine, only because it asked the first applicant whether he knew the number of sacraments and what their names consisted, and stated that it would have expected a person who has been a Roman Catholic for thirty years to be able to name the seven sacraments.
In any event, whether the Tribunal’s questioning of the first applicant could be said to manifest the application of an arbitrary standard, the Tribunal did not make a finding about whether the first applicant was a genuine Roman Catholic. That is, the Tribunal did not find the first applicant was not a genuine Roman Catholic. The Tribunal found the first applicant possessed a knowledge of Roman Catholicism consistent with his having attended Bible study classes since October 2014; and it concluded that the first applicant’s involvement with that Church is primarily for the purpose of obtaining a Protection visa, although it accepted that the first applicant’s involvement with the Church may also have been motivated by the community support he receives, particularly after the death of his son, and the social interaction.
It is also true the Tribunal did not accept the first applicant’s claims about his being a member of the Roman Catholic underground church; and the Tribunal did not accept that, on his return to China, the first applicant would practice Roman Catholicism in an underground Roman Catholic Church. In concluding it was not so satisfied, however, the Tribunal did not rely on any finding that the first applicant was not a genuine Roman Catholic; it relied on the matters I identified earlier in these reasons for not accepting the first applicant’s claims that he was a member of the underground Roman Catholic Church; and these matters consisted of what the Tribunal found to be the first applicant’s inconsistent and implausible evidence. Thus, even if the Tribunal is to be taken as having applied an arbitrary standard when questioning the first applicant about his knowledge of Roman Catholicism, I am not satisfied that this was material to the Tribunal’s decision.
For these reasons, ground 4 also fails.
Ground 5
Ground 5 is based on a factual premise, namely, that the applicants’ son had been granted a Protection visa; and the claim is that that factual premise ought to have led the Tribunal to find the first applicant and his daughter should also be granted Protection visas. There is no evidence before me that the applicants’ son had been granted a Protection visa. But even if there were such evidence, that by itself would not have required the Tribunal to conclude that the applicants were entitled to Protection visas. There is no evidence of the grounds on which the applicants’ son had been granted a Protection visa; and even if the applicants’ son had been granted a Protection visa on substantially the same grounds on which the first applicant applied for a Protection visa, the Tribunal would have been required to consider for itself the first applicant’s claims, and it would not have been bound to make the same findings that another decision-maker made in relation to the applicants’ son’s application for a Protection visa, whether that decision-maker was a delegate of the Minister or a differently constituted Tribunal.
Ground 5, therefore, also fails.
Applicants’ Submissions
In the Applicants’ Submissions the applicants claim the Tribunal failed to consider the applicants’ evidence properly and fairly; the Tribunal conducted itself in a manner so as to give rise to a reasonable apprehension of bias; the Tribunal made findings based on unwarranted assumptions; and the Tribunal did not assess the applicants’ claims fairly and carefully. These claims are not particularised, and for that reason alone disclose no jurisdictional error.[62]
[62] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, at [35]: “Failure to particularise a ground of review is sufficient basis for it to be dismissed.. . . .”
Disposition and costs
The applicants have not succeeded on any of the grounds on which they rely. I propose, therefore, to order that the application be dismissed.
I also propose to order that the applicants pay the Minister’s costs, and that those costs be set in the amount of $9,000. That is higher than the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). But the hearing occurred over two days, and additional submissions were filed, due, in part, to the 9 March Letter and, in part, to additional submissions the applicants made. I will, however, reserve to the applicants and to the Minister liberty to apply within 28 days to vary or discharge the orders for costs I propose to make.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 May 2020
0
9
4