DEF17 v Minister for Immigration

[2018] FCCA 3741

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEF17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3741

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in China – principal applicant disbelieved in important respects and other fears found not to be well founded – whether the Tribunal breached s.424AA or whether the Tribunal hearing was unfair because of interpretation errors considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 91R, 424AA, 424A

Cases cited:

BZAID v Minister for Immigration (2016) 242 FCR 310

NAOA v Minister For Immigration [2004] FCAFC 241

SAAP & Anor v Minister for Immigration & Anor (2005) 228 CLR 294

SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26

SZGSI & Anor v Minister for Immigration & Anor (2007) 160 FCR 506

SZOYU v Minister for Immigration [2012] FCA 936

SZRMQ v Minister for Immigration (2013) 219 FCR 212

VAF v Minister for Immigration [2004] FCAFC 123

First Applicant: DEF17

Second Applicant: DEG17

Third Applicant: DEI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2227 of 2017

Judgment of: Judge Driver

Hearing date: 14 December 2018

Delivered at: Sydney

Delivered on: 14 December 2018

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms S Burnett of Clayton Utz

ORDERS

1. The application filed on 17 July 2017 is dismissed.

2. The first and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2227 of 2017

DEF17

First Applicant

DEG17

Second Applicant

DEI17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 5 June 2017. 

3. The first applicant (applicant) and her partner are citizens of China.  The applicant arrived in Australia on a student visa in November 2007.  She was issued with a Chinese passport in Sydney in June 2011 which replaced a previous passport issued to the applicant in 2006.[1]

   [1] Court Book (CB) 3 and 11.

4. On 21 December 2012, the applicant and third applicant made applications for protection visas.  Only the applicant made claims.[2]  The third applicant, her de facto partner (partner applicant) made claims for protection as a member of the applicant's family.[3]  The second applicant, the applicant's child (infant applicant) made claims as a member of the applicant's family by her protection visa application lodged with the Minister’s Department on 7 June 2013.[4]

   [2] CB 1-12.

   [3] CB 16-33.

   [4] CB 56-62.

5. On 25 July 2013, the delegate refused the applicants' applications for protection visas.[5]  On 22 December 2016, this Court remitted the delegate's decision to the Tribunal to be determined according to law.[6]

   [5] CB 63-90.

   [6] CB 95 and 96.

6. On 27 April 2017, the applicant and her partner attended a hearing before the Tribunal.[7]  On 13 June 2017, the applicant attended a second hearing before the Tribunal.[8]

   [7] CB 104 and 125.

   [8] CB 113 and 125.

7. On 20 June 2017, the Tribunal affirmed the delegate's decision.[9]

   [9] CB 123-143.

Protection Claims

1. The applicant claimed to fear harm:

   a)because her family were local church practitioners in China.  She claimed that she and the partner applicant had been briefly detained after a raid on a local church gathering.  She claimed that her father had been arrested and detained in China and was facing sentencing because of his most recent activities;

   b)because she had been involved in providing her father with information.  The applicant claimed that the authorities had become aware that she had been involved in passing information to her father from overseas contacts; and

   c)on behalf of her child, because she and her partner were not married and the infant applicant would be regarded as a "black child" in China and would not be able to obtain household registration without the payment of a social compensation fee.[10]

   [10] CB 39 and 40, 74-79, 126-137 at the Tribunal's reason for decision (DR) at [14] to [61].

The Tribunal's decision

1. Based on the applicant's evidence and country information, the Tribunal was not satisfied:

   a)that the applicant faced a real chance of persecution now or in the reasonably foreseeable future; and

   b)as to the applicant's credibility in relation to her "local church" claims.[11]

   [11] CB 137, DR at [63].

2. In relation to the applicant's claims concerning her family's involvement with the local church in China, the Tribunal accepted that: [12]

   a)the applicant's family was involved with the local church in China.  It accepted that her father and uncle were arrested at some stage because of their involvement in the local church;

   b)the applicant and her partner were baptised into the church and attended local church gatherings.  It accepted that the applicant and her partner were at a local church gathering in China which was interrupted by the police and that they subsequently suffered some short term detention and were suspended from school for a brief period as a result;

   c)the applicant's father had been more recently detained in China because of his local church activities.  It accepted that the applicant's father was involved in organising an illegal gathering and that he was granted bail in relation to that charge; and

   d)her father's business in China suffered setbacks and eventually closed.  It was not able however to determine whether the closure of her father's business was because of government harassment caused by her father's involvement with the local church.

   [12] CB 140, DR at [78].

3. The Tribunal also observed that:

   a)the applicant and her partner came to Australia on student visas and did not become involved with a local church in Australia until October 2012.  It noted that the applicant lodged her protection visa application in December 2012;[13]

   b)the applicant gave contradictory evidence about her attendance pattern with the local church in Australia.  It did not accept the applicant's explanation for that erratic attendance.  It found that:

   i)her involvement in a local church in China was due to the influence of her father; and

   ii)when she was physically removed from her father's influence she did not maintain an involvement or interest in the local church in China;[14]

   c)the considerable delay by the applicant in applying for a protection visa was not consistent with her claims to fear harm if she returned to China;[15] and

   d)the applicant's claimed involvement with the organization called "ChinaAid" was vague and confusing.  After considering the totality of the evidence, the Tribunal did not accept that the applicant was involved in contacting ChinaAid or in giving information to her father about that organisation or that the police in raiding the family home found any emails sent by the applicant.  It did not accept that the applicant was at risk of harm from the Chinese authorities on that basis.  It did not accept that the Chinese authorities had been asking when the applicant would be returning to China.  In this regard, it noted that the applicant was able to leave China on a passport and come to Australia to study in 2007 without any apparent difficulties and had been reissued a passport in 2011.[16]

   [13] CB 140, DR at [79].

   [14] CB 141, DR at [73] and [80].

   [15] CB 141, DR at [80].

   [16] CB 141, DR at [81] and [82].

4. On its assessment of the totality of the evidence and of the applicant's credibility, the Tribunal did not accept that the applicant would be involved with the local church if she returned to China either now or in the reasonably foreseeable future.  It did not accept that the applicant would be at risk of serious harm because her father had been detained by Chinese authorities on the basis of local church activities.  It found that:[17]

   a)the evidence did not suggest that other members of the applicant's immediate family had been detained in China because of the detention of her father; and

   b)the applicant only became involved in the church in Sydney for the sole purpose of strengthening her protection visa claims. In accordance with s.91R[18] of the Migration Act 1958 (Cth) (Migration Act), the Tribunal disregarded any conduct engaged in by the applicant in "this context".

   [17] CB 139, DR at [71].

   [18] Now s.5J(6)

5. In relation to the applicant's claim to fear harm because she and the partner applicant had children who would be unable to obtain household registration in China, the Tribunal made the following findings and comments:

   a)based on country information to which it referred and which it discussed with the applicant, the applicant's children would be entitled to household registration irrespective of whether a social compensation fee had been paid.  It referred to country information indicating that: 

   i)China had changed its one child policy to a two child policy; and 

   ii)in August 2015, the Fujian public security department had implemented a new policy whereby local authorities were directed not to treat the payment of social compensation fees as a prerequisite for accepting an application for a household permit;[19]

   b)the Tribunal accepted that the country information indicated that the applicant would be liable to pay a social compensation fee imposed in relation to the birth of her children who were born out of wedlock.  The Tribunal noted country information indicating that the authorities in Fujian showed considerable discretion in charging social compensation fees.  The Tribunal also noted country information indicating that if the applicant and her partner were to obtain a marriage certificate within three months after receiving notification of a social compensation fee, they would be exempted from paying that fee in Fujian Province;[20] and

   c)it referred to country information indicating that social compensation fees in Fujian Province can be paid in instalments over a three year period.  It accepted that the imposition of a social compensation fee might cause the applicant significant financial difficulties.  However, it found that the imposition of social compensation fees was:

   i)in relation to breaches of China's family-planning laws;

   ii)a law of general application; and

   iii)not imposed for discriminatory purposes.[21]

   [19] CB 138, DR at [65].

   [20] CB 138, DR at [66].

   [21] CB 138, DR at [67].

6. The Tribunal did not accept that:[22]

   a)the applicant faced a real chance of serious harm if she were to return to China on the basis that her children would be unable to obtain household registration if she returned to China; and

   b)the infant applicant faced a real chance of serious harm because she would be unable to obtain household registration.  It found that the infant applicant would be able to obtain household registration without the payment of a compensation fee and therefore would be able to access government services.

   [22] CB 138, DR at [69].

7. The Tribunal then considered each of the applicant's claims by reference to the complementary protection criteria. It was satisfied that none of her claims gave rise to a real risk of significant harm for the purposes of s.36(2)(aa) of the Migration Act nor the claims made on behalf of the infant applicant.

The present proceedings

1. These proceedings began with a show cause application filed on 17 July 2017.  The applicants continue to rely upon that application. There are two grounds in it:

   1. In accordance with subclause 424AA (1) (b)(i) to(iv) of the Migration Act, 1958, the Tribunal must ensure the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and orally invite the applicant to comment on or respond to the information and advise the applicant that he or she may seek additional time to comment on or respond to the information; and if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   I was invited to attend two separate Tribunal hearings which transpired on 27-04-2017 and 13-06-2017 respectively. I was asked to address to the concerns raised by the tribunal verbally; but I was not made aware that these concerns may be part of the reason that the Tribunal may relay on in affirming the decision; More importantly; the Tribunal failed to inform me, that I may seek additional time to comment on or respond to the Tribunal concerns in writing.

   The summary of the Tribunal's concerns are;

   a.The delay in lodging in Protection visa application.

   b.Contradicted evidence given by me and my partner in relating to the email I sent to Chinaid in US.

   c.My Genereal knowledge of the local church in terms of core beliefs and background issues.

   d.We will be able to register our child before the social compensation fee is paid off or exempted once we return to China in accordance to the recent country information.

   e.No supporting documents from the local church in Australia.

   f.Inconsistency in evidence in terms of my attendance to the Local Church in Australia.

   2.In accordance with subclause 422B (3), the Tribunal must act in a way that is fair and just. I believe, that the Tribunal erred in applying s422B (3) by having failed to arrange a competent interpreter who has, in the least, the general knowledge about the Local Church and general phrases that our local church use. Few Significant Errors in Interpreting identified are as follows:

   a.When the Tribunal said "Watchman Nee", the interpreter firstly the name translated into English as "Watchman Association, then Watchman, instead of Ni TuoSheng who was a church leader and Christian teacher who worked in China during the 20th century. In 1922, he initiated church meetings in Fuzhou that may be considered the beginning of the local churches. If the interpreter correctly rendered, I would have correctly answered the relationship between Witness Li and Watchman Nee, and the role of Watchman Nee played in terms of the Local Church. Especially when the tribunal asked me "do you know Watchman Nee at all'; because the interpreter failed to translate it into Chinese Correctly; I did not understand whom the Tribunal referred to. Such significant error in interpreting about my faith made the Tribunal cast doubt about my core knowledge of the Local Church, and subsequently, caused adverse implication on the Tribunal's overall assessment on my merits review application.

   b.I was asked about God's economy or the economy of God; the interpreter translated the name of the book written by Witness Li too literally, I failed to understand what book that the Member was referring to. The correct translation in Chinese should be "ShenDe Jingying", instead of "Shende JingJi". I was misled by the translation and as the result of that, I failed to provide the correct explanation of what is the book of the economy of God.

   c.Few other significant errors in interpretation are to be identified once we have a copy of the transcript of the hearing.

   (errors and emphasis in original)

2. The applicants provided a full transcript by affidavit made on 8 December 2017.  The matter came before me for a show cause hearing on 14 June 2018.  Having heard the applicant at that time, I decided to give the applicants the opportunity to provide additional evidence directed to the adequacy of interpretation at the Tribunal hearing.  In response to those orders, the applicants filed an affidavit by the applicant made on 11 September 2018 to which was annexed a document purporting to provide excerpts from the sound recording of the Tribunal hearing. 

3. The apparent purpose of the additional partial transcript was to draw attention to what were perceived as particular interpretation problems.  That affidavit was deficient in that it did not provide evidence from a person proficient in the Mandarin and English languages concerning the quality of interpretation.  On 18 October 2018, I provided the applicants with a further opportunity to make good that deficiency.  In response to those orders, the applicant made a further affidavit on 29 October 2018 annexing an affidavit by Ana Zhao, an interpreter, who ventures an opinion concerning the quality of interpretation. 

4. At the trial of the matter today, I took the view that the applicants had done enough to permit them to introduce their evidence for the purposes of the final hearing. 

5. I also have before me as evidence from the show cause hearing the court book filed on 23 October 2017. 

6. I determined at the show cause hearing that the first ground in the application did not raise an arguable case of jurisdictional error.  The Minister’s submissions deal with that ground.  I agree with those submissions. 

7. Section 424AA(1)(a) of the Migration Act provides that the Tribunal may give orally to an applicant clear particulars of any information which may be the reason, or part of the reason, for affirming the decision under review (adverse information). Section 424AA(1)(b) of the Migration Act provides that if it does so, the Tribunal must:

   a)ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review;

   b)invite the applicant to comment on, or respond to, the information; and

   c)advise the applicant that he or she may seek additional time to comment on or respond to the information and, where the applicant does so, adjourn the review if the Tribunal considers that the applicant reasonably needs additional time to comment on the adverse information.

8. Whilst the Tribunal in this matter raised its concerns orally with the applicant at the hearings before it, it was not required to do so under s.424A(1) of the Migration Act; nor was it required to comply with the requirements of s.424AA(1)(b) of the Migration Act. The Tribunal's "concerns", namely its thought processes, its consideration of the applicant's claims and its assessment of the applicant's evidence are not "adverse information" within the meaning of s.424A(1) and s.424AA(1) of the Migration Act. As such, there was no obligation to put the matters listed by the applicant. Those matters are the subjective appraisals, thought processes and determinations of the Tribunal and did not enliven the obligations under s.424A(1) of the Migration Act.[23]

   [23] SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration [2004] FCAFC 123 at [14] per Finn and Stone JJ. See also NAOA v Minister For Immigration [2004] FCAFC 241 at [21].

9. Nor was the Tribunal required to put to the applicant for comment the evidence of the partner applicant in relation to ChinaAid.  Whilst it is necessary for a tribunal to put inconsistencies in evidence given by a third party (such as the partner applicant) to evidence provided by a primary applicant,[24] in this matter there was no contradictory evidence to put to the applicant. 

   [24] SAAP & Anor v Minister for Immigration & Anor (2005) 228 CLR 294 and SZGSI & Anor v Minister for Immigration & Anor (2007) 160 FCR 506.

1. At [72] of its decision, the Tribunal recorded the partner applicant's evidence relating to ChinaAid being that he thought "his wife had been in the middle in terms of sending information back to China about ChinaAid rather than her having contacted that organisation directly". That evidence was supportive of the applicant's claims for protection, not contradictory, and as such the obligations under s.424A(1) of the Migration Act were not enlivened.

2. Further, on a fair reading, the decision record does not support any inference that at any time prior to its decision the Tribunal considered that this evidence of the partner applicant would be the reason or part of the reasons for affirming the decision under review. For this reason also s.424A(1) of the Migration Act was not enlivened in respect of the evidence of the partner applicant about ChinaAid.[25] The Tribunal's consideration of the applicant's claim relating to information she asserted she sent about ChinaAid is set out at [82] of the decision record[26] where the Tribunal made the following comments:

   a)the applicant's evidence about her claims regarding her contact and involvement with the organisation called ChinaAid have been very vague and confusing;

   b)the applicant claimed that she had been involved in sending information to her father about that organisation but also claimed that she had been involved with drafting an email that she sent to that organisation regarding her local church in China;

   c)the applicant was vague in discussing this issue and struggled to respond to the Tribunal's questions about her claimed involvement in contacting that organisation on behalf of her father and the reason for that contact;

   d)the applicant claimed the emails had been deleted but she also claimed that she was concerned that the police in China had found the home computer and therefore would know that the applicant had been in contact with ChinaAid regarding local church activity; and

   e)after considering the totality of the evidence and its assessment of the applicant's credibility, the Tribunal does not accept that the applicant was involved in contacting ChinaAid or in giving information to her father about that organisation or that the police in raiding the family home found the emails (which the Tribunal does not accept existed) and therefore that the applicant is at risk of harm from China's authorities on that basis.

   [25] Kanagul v Minister for Immigration & Anor [2014] FCCA 1219 at [40] and the authorities referred to therein.

   [26] CB 141.

3. Ground 1 is without merit.  It discloses no arguable jurisdictional error.

4. In respect of Ground 2, the state of the evidence on the question of interpretation problems is such that it is very difficult to draw firm conclusions. 

5. While the applicant contends that the name of Watchman Nee and the expression “God’s economy” were not properly interpreted, it cannot be said that the standard of interpretation overall was inadequate for the purposes of providing a fair hearing opportunity. 

6. It is impossible for me to conclude, simply on the basis of the three affidavits read by the applicants, whether the alleged particular interpretation problems at the identified points in the transcript are real or imagined.  If they are real, it does not appear to me that those problems had any impact on the outcome of the review before the Tribunal.  It is apparent from [50] of the Tribunal’s reasons[27] that the Tribunal did not use against the applicant any perceived ignorance of the identity of Watchman Nee.  The Tribunal did have some concern about the applicant’s understanding of the concept of “God’s economy”, but the conclusion reached by the Tribunal at [73][28] was not that the applicant was in critical respects ignorant about the local church but, rather, that her knowledge was likely to have been gained from her father. 

   [27] CB 134.

   [28] CB 139.

7. In the circumstances, I am not persuaded that any particular interpretation problems during the course of the hearing gave rise to procedural unfairness. 

8. I otherwise agree with the submissions of the Minister on Ground 2. 

9. To demonstrate that an error in interpretation reflects jurisdictional error, it must be shown that the misinterpretation or non-interpretation was such that the Tribunal hearing was no longer "fair" and the parties were denied a real opportunity to put their case.[29]  The applicants are required to demonstrate that an error in interpretation related to a matter of significance to their claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision.[30] 

   [29] See BZAID v Minister for Immigration (2016) 242 FCR 310, 318-320; SZRMQ v Minister for Immigration (2013) 219 FCR 212.

   [30] SZOYU v Minister for Immigration [2012] FCA 936, [31].

10. It is not apparent by reference to the transcript of the hearings before the Tribunal that the matters set out at paragraphs (a) and (b) under Ground 2 were inadequately interpreted.[31]  In the exchange between the applicant and the Tribunal relating to Watchman Nee and the book entitled the "Economy of God" it is not apparent that the applicant misunderstood or could not respond to the questions and comments of the Tribunal.[32]  Rather, the Transcript suggests that the interpretation was adequate to convey what was said such that the hearing was real and fair.[33]  Further, and as pointed out above, the matters referred to under Ground 2 were not matters of significance to the applicant's religious claims.  They were one of many instances where the Tribunal raised concerns with the applicant as to her knowledge of the local church in China.

    [31] See pages 45 and 46 of the transcript of the hearing before the Tribunal on 27 April 2017 (transcript) annexed to the affidavit of the first applicant dated 8 December 2017.

    [32] Pages 43, 47 and 48 of the transcript. 

    [33] BZAID at 320.

11. Further, I note that at the commencement of the hearing before the Tribunal on 27 April 2017, the applicant confirmed she had no difficulties understanding the interpreter.[34]

    [34] Page 3 of the transcript.

Conclusion

1. I conclude that the applicants are unable to demonstrate that the decision of the Tribunal is affected by jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs equivalent to an amount under the Federal Circuit Court Rules 2001 (Cth) prescribed for a show cause hearing at the time the application was filed. The first applicant was concerned that even that reduced amount was large, but the Minister’s claim for costs is modest in the context of the proceedings overall.

3. I will order that the first and third applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         18 December 2018