FGZ17 v Minister for Immigration and Anor

[2019] FCCA 3736

FEDERAL CIRCUIT COURT OF AUSTRALIA

FGZ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3736

Catchwords:
MIGRATION – Application for adjournment – where the applicant is able to attend by telephone assisted by an interpreter – application dismissed – judicial review – where grounds are not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: FGZ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 491 of 2017

Judgment of: Judge Young

Hearing date: 29 November 2019

Date of Last Submission: 29 November 2019

Delivered at: Darwin

Delivered on: 29 November 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitor for the Applicant: In person

Counsel for the First Respondent: Ms Butler

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Ms Butler

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The first respondent henceforth be referred to as “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed 1 December 2017 be dismissed.

3. The applicant pay the first respondent’s costs fixed at $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 491 of 2017

FGZ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. There are two applications before me today. One is an application for adjournment of the hearing and the second is for judicial review of a decision of the Administrative Appeals Tribunal made on 9 November 2017.

3. In relation to the application for adjournment, my chambers received an email this morning from the applicant at 4:33 am (or the server received it). He said that yesterday he had been very ill, with vomiting and diarrhoea, and he had seen the doctor yesterday and there was a potential diagnosis of viral gastroenteritis. He sought an adjournment and attached a medical certificate from a local general practitioner dated yesterday, 28 November 2019. It said simply (I direct that whenever the applicant is mentioned by name that the acronym “FGZ17” be used):

   Medical certificate:

   This is to certify that FGZ17 has a medical condition, and will be unfit for work/study from 29 November 2019 to 29 November 2019 inclusive, unless recovered sooner.

4. It was signed by a Dr Phone Myat Thu. I arranged for my chambers to telephone FGZ17 and ask, if he was unable to go to the Court, whether he had a telephone number and I could deal with the matter on the telephone from his home. He sent an email later in the morning providing a mobile telephone number and saying that he might not be able to “pick up” the phone call because of the “situation with [his] stomach” and that “he keeps running to the toilet and it will be hard to pick up the phone”. I telephoned FGZ17 and he answered his mobile phone and has been on the phone without apparent difficulty for approximately an hour and 10 minutes with the assistance of a Mandarin interpreter.

5. I then telephoned Dr Thu in relation to the medical certificate. Dr Thu gave evidence that when he saw the applicant last night at about 8 pm in his rooms the applicant stated to Dr Thu that he had diarrhoea seven to 10 times and vomited without blood about four times since that morning. He also complained of mild abdominal discomfort. He denied any travel history. His temperature was normal, his blood pressure was normal and his pulse was normal. On examination, the applicant had some tenderness in the lower abdomen. According to Dr Thu, he did not look unwell.

6. When I asked him if there was anything further, Dr Thu said he looked a little bit tired but there was nothing sinister about that. He said that he spoke to the applicant, apparently in English, but he had to speak slowly so the applicant could understand him. He seemed to understand instructions and he appeared to comprehend what was being said to him by Dr Thu. Dr Thu said that he was unsure whether the applicant was fit today, unless his condition had deteriorated. It was possible his condition had deteriorated but he wasn’t aware if that was the case.

7. He also said that often viral gastroenteritis would clear up within 24 to maybe 36 hours. I take it from everything Dr Thu said that he did not have any reason to doubt that the applicant was feeling unwell. I have spoken, as I have said, to the applicant and Dr Thu over the past hour and 10 or 15 minutes

8. The applicant has answered questions for at least 40 minutes and I detected no disadvantage that the applicant was under in answering or understanding my questions. He appeared to understand quite well. In the circumstances, I do not propose to grant the applicant an adjournment.

9. Turning to the substantive application, the applicant’s claims are fourfold and I will read them. 

10. Ground one: During the interview, I mentioned that I changed my jobs for three times and moved for three times, and I was still found by the gangsters. However, the Tribunal never mentioned this is in the decision record.

11. Ground two: There are many facts in the decision record which are incorrect and not right, in accordance with my statement.

    The applicant did not press that ground before me today. 

12. Ground three: I ask for many times that I have more evidence to submit, and more material to support but the Tribunal finished my hearing in a hurry and said there was not enough time, even if it was only 12.30 pm.

13. Ground four: The interpreter was making many mistakes, and didn’t interpret in time, which shows lack of professionalism.

14. I will briefly summarise the background. The applicant arrived in Australia in 2013, originally apparently on a visa which permitted a working holiday. In July 2015, he returned to Taiwan for a relatively short period, for a few weeks, as I understand it, and then returned to Australia. In October 2015, he was granted a student visa. No studies have been completed by the applicant in Australia. On 9 November 2016 he applied for a protection visa. His claims were that his mother had reported that gangsters were occupying a unit or an apartment that she had owned and using it for illegal gambling. She had reported that to the authorities and consequently been threatened.

15. The applicant also claimed that in August 2012, that is around about that time or shortly after this, he had been kidnapped by the gangsters, threatened with death and had a gun pointed at him. He says that was reported to police but the police were corrupt and had not acted to protect him properly. The Tribunal accepted the claims about the mother and the threats by gangsters. The Tribunal also accepted that the gangsters had been prosecuted by police and there had been legal proceedings.

16. The applicant was able to produce in Chinese, Mandarin in particular it would appear, a court document that corroborated what he had said.  The applicant also said that when he returned to Taiwan in July 2015 he saw, apparently by coincidence, the same gangsters were visiting his mother in hospital at the same time he visited. He said he was threatened by the gangsters at that time. That claim was not accepted by the Tribunal as truthful. The Tribunal found it such an unlikely coincidence as to be implausible.

17. The applicant asserted that as a result of the complaint to police and legal proceedings that he was at risk should he return to Taiwan. He asserted that the police were unable to protect him, wherever he might relocate within Taiwan. The Tribunal, relying on country information, did not accept that the state or the Taiwanese authorities were unable to provide adequate protection for the applicant and pointed to country information which suggested that, while there may be pockets of corruption within the Taiwanese police force, the other evidence indicated that the Taiwanese state was committed to stamping out organised crime and simply did not accept the applicant’s claims about those matters.

18. In relation to Ground one of the application for review the applicant said that the Tribunal failed to mention in his claims that he had been forced to move three times and change jobs three times because of threats from gangsters. The applicant said that those facts were important in assessing whether or not he was safe, whether the state was able to adequately protect him. At paragraph 35, the Tribunal noted that it considered that the applicant could relocate if necessary to avoid gangsters and apparently did not accept that claim.

19. It seems to me the question of whether or not relocation was reasonable was subsumed under the general conclusion of the Tribunal that the applicant’s claim that the Taiwanese state or authorities were not able to offer him adequate protection was not correct, that is, that the state could provide adequate protection. Given that finding, the failure to record the details of the applicant’s alleged movements is not a critical detail.

20. As noted, Ground two was not pressed.

21. In relation to Ground three, the applicant said that he had provided documents to the Tribunal in Taiwanese or Mandarin, that they had not been translated and that the Tribunal had refused a request by him for further time to deal with that material.

22. The material that the applicant was talking about, while it is not particularised in his grounds of review, was described in oral submissions. It appeared that he was referring to a video firstly, and secondly, court documents relating to the criminal prosecution of the gangsters.

23. The Tribunal does refer to video apparently taken on a mobile phone. At paragraph 23, the Tribunal refers to video footage, apparently taken by the applicant’s uncle of the initial incident with the gangsters. The Tribunal records that the applicant showed it the video footage of the police attending, apparently, at his mother’s apartment. The Tribunal notes that the sound for the footage was in Taiwanese and it was unclear what was being said at the time. Similarly, the court documents were also untranslated. The applicant told me that he had not been able to have the court documents translated because they were in an archaic form of Chinese and that the legal language, while it was Mandarin, was difficult even for Mandarin speakers to interpret.

24. There is no evidence to support any of the claims the applicant makes about these matters. In relation to the video, when I asked him why it hadn’t been possible to have the video transcribed or interpreted he said that it had been “impossible to find a Taiwanese interpreter in Australia”. The Taiwanese he was referring to was Taiwanese language or Taiwanese dialect, not Mandarin. There was no evidence at all that there are no Taiwanese language interpreters in Australia. Given that his protection visa claims were made approximately a year before the Tribunal hearing, I am not satisfied that he was unable to obtain interpretation.

25. In relation to the court documents, much the same can be said. I am not satisfied that there is no translator available. The Minister makes perhaps the more telling point that in relation to the gangster incident, and the gangster’s occupying the mother’s apartment, and the court documents evidencing a police prosecution of the gangsters, the Tribunal accepted that those matters had occurred. So regardless of whether or not there was an interpretation of those matters, it was accepted that those events had occurred as alleged. So it is very difficult to see how the complaint the applicant makes, even if true, has deprived him of the prospect or opportunity of a proper hearing.

26. In relation to Ground four, the complaint about the standard of interpreting, there is no evidence whatsoever that the interpretation was inadequate. It is not enough to make an unsupported assertion of that kind to persuade a court such as this that there has been a jurisdictional error by the Tribunal. I am not satisfied that ground is made out.

27. In summary, I am not satisfied that any of the three grounds pressed by the applicant are made out and I dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 18 December 2019