QUAN v Minister for Immigration
[2013] FCCA 454
•7 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUAN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 454 |
| Cases cited: MIGRATION – Review of Migration Review Tribunal decision – refusal of a Bridging visa E (Class WE) – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.58, 269, 359, 363, 360 Federal Circuit Court Rules 2001(Cth) |
| Cases cited: Applicant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 NAIF v Minister for Immigration of Multicultural and Indigenous Affairs [2003] FMCA 458 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 Tian v Minister for Immigration and Citizenship & Anor [2013] FMCA 138 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 |
| Applicant: | YINGAI QUAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2444 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 5 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2013 |
REPRESENTATION
| The Applicant: | Mr M Bahar, migration agent, appeared on instructions from a friend of the Applicant |
| Solicitor for the Respondents: | Ms E Warner-Knight of Australian Government Solicitor |
ORDERS
The application filed on 25 October 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2444 of 2012
| YINGAI QUAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The solicitors for the first respondent, the Minister for Immigration & Citizenship, in anticipation of procedural orders being made in these proceedings, filed a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This occurred before the First Court Date directions and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material on or before 31 January 2013. The applicant elected not to file an amended application. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. The applicant elected not to file any written submissions or list of authorities.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Migration Review Tribunal (the “Tribunal”) affirming a decision of a delegate of the Minister for Immigration and Citizenship (the “Minister”) to refuse the applicant’s application for a Bridging visa E (Class WE) under the Migration Act.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Warner-Knight appearing for the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book each item contains a Court Book (“CB”) reference for that material.
The applicant is a citizen of China. Ms Warner-Knight has prepared a chronology of relevant events, which is set out below:
a)4 July 2008 – the applicant arrives in Australia on a false South Korean passport using the false name “Kim Na Ri” as the holder of a visitors visa with a ‘no work’ condition;
b)5 October 2008 – Visitors visa expired and the applicant purported to became an unlawful non citizen;
c)9 September 2012 – the applicant came to the attention of the Department of Immigration and Citizenship (the “Department”) after being questioned by police when a vehicle in which she was a passenger was stopped as a result of the driver performing an illegal turn;
d)10 September 2012 – the applicant was detained and interviewed;
e)17 September 2012 – the applicant lodged an application for a subclass UC-457 Business (Long Stay) visa, which is treated also as an application for a Bridging visa E (Class WE);
f)18 September 2012 – a separate, and redundant, application for a Bridging visa E (Class WE) was lodged then withdrawn;
g)20 September 2012 – the delegate refused the application for a Bridging visa E (Class WE);
h)21 September 2012 – an application for review was lodged with the Tribunal;
i)27 September 2012 – the Tribunal sent a s.359 (of the Migration Act) invitation to comment on information at an interview;
j)2 October 2012 - the Tribunal interviewed the applicant on matters raised in the s.359 letter at the Tribunal hearing; and
k)4 October 2012 – the Tribunal notified the applicant of its decision.
The applicant gave evidence that she worked as a tiler on a construction site and earned $120 per day. The passengers with her in the vehicle that had been stopped by police contained her fellow workers.
The issue for the Tribunal was whether it is satisfied that the applicant would abide by the conditions of the Bridging visa and thus meet Clause 050.223. The applicant and three witnesses gave evidence. The Tribunal’s account of the hearing is set out at CB 135-141 at [24]-[57].
The Tribunal’s Decision
In its consideration of whether the applicant would meet Clause 050.233 of the Migration Regulations 1994 (Cth), the Tribunal set out the mandatory conditions and those which it considered should be imposed in the present case, namely (at CB 141-142 at [66]):
a)Condition 8401 – reporting;
b)Condition 8101 – no work;
c)Condition 8505 -live at specified address; and
d)Condition 8506 – notify the Department at least 2 days before any change in address.
The Tribunal then considered whether the applicant would comply with these conditions and had regard to the applicant’s past conduct (CB 142 at [69]). It noted the following;
a)The applicant had used a falsified South Korean travel document and entered Australia on a tourist visa on 4 July 2008. She worked in Australia and supported herself from July 2008 until her detention in September 2012. She completed her incoming passenger card in the name of the falsified document attesting that was her true identity (CB 142 at [70]);
b)The applicant remained unlawful in the community and did nothing to regularise her visa status in over four years. Had she not been detected as a result of the police intercept of a car in which she was travelling, she would have remained underground (CB 142 at [71]);
c)While remaining in Australia unlawfully the applicant worked for an extended period without permission. The Tribunal did not accept her oral evidence that she worked intermittently only for a day or two each week given the fact that she had been able to support herself in Sydney, the most expensive city in Australia (CB 143 at [72]);
d)The Tribunal rejected the applicant’s explanation that she did not regularise her status because she could not afford a solicitor as she was able to be represented by a solicitor for her visa application and subsequent review application (CB 143 at [73]).
On the basis of the above, the Tribunal rejected the assurances of the applicant and her witnesses that she would comply with the conditions attached to the visa and was not satisfied that she would do so (CB 143 at [74]). The Tribunal:
a)Noted that the applicant had stated that if she was released from detention she would work in order to pay her solicitor’s fees and retracted this only when told of the ‘no work’ condition;
b)Noted the applicant then stated that she would do chores for Mr Chin (who offered to provide accommodation in his home for the applicant), and retracted this only when informed that any work which normally attracts remuneration is ‘work’ for migration purposes and doing chores for Mr Chin may be in breach of her visa conditions; and
c)In view of the applicant’s lack of ties to China, or her claimed country of origin North Korea, found the applicant could again be compelled to go underground and work due to lack of financial resources and the ‘potentially hapless future’ she would face if she returned to China or, as she claims could happen, to North Korea.
The Tribunal did not accept the claim made in applicant’s the post hearing submissions that the applicant had engaged a migration agent to make an FOI application for her in March 2012 as no evidence of this had been provided. The only evidence was that the applicant had entered on a false passport and made no attempt to regularise her status in over four years. The Tribunal found at CB 143 at [75]:
75. …The applicant stated at the review hearing before the Tribunal that if she was released from detention she would work so that she could pay the solicitor who is representing her and was willing to accept payment in instalments in the future. She also stated that she would do chores for Mr Chin. Despite the applicant’s retraction of these comments during the hearing, the Tribunal finds that there is a real chance that the applicant would work in breach of condition 8101 attaching her Bridging E visa.
(CB 143)
The Tribunal considered the general material enclosed with the post hearing submissions regarding the mental and physical health of detention and noted that no medical evidence had been submitted to suggest that the applicant personally was suffering from any health problems arising from her detention.
Finally, the Tribunal considered whether the applicant might comply with her visa conditions if there was a financial incentive to do so. In light of her immigration history and disdain for immigration law and procedure, it was not satisfied that any financial incentive would suffice for the applicant to comply with the visa conditions that may be attached to a Bridging visa E if granted.
Proceedings before the Federal Circuit Court
The proceedings were commenced by way of application filed on 25 October 2012. The applicant elected not to amend her application. The application sought the following orders:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
3. Order for costs.
4. Any further or other relief that the Court considers appropriate.
The applicant pleaded the following ground:
The tribunal erred in constructing the words ‘work” in clause 8101 of Schedule 8 of the Migration Regulations, as including household chores undertaken to assist a family with whom the applicant would reside.
Applicant’s Submissions
Mr Bahar, for the applicant, informed the Court that he was on a restricted practising certificate and had not been instructed by the applicant to appear, but had been requested by Mr Khan, a friend of the applicant, to appear on her behalf as she was no longer legally represented and had very limited English. As no objection was raised by the Minister’s representatives, Mr Bahar was granted leave to appear. Mr Bahar indicated that the applicant was born in North Korea and moved to China when she was a child, where she grew up. She entered Australia on a false South Korean passport, eventually became an unlawful citizen and started working as a tiler. She was a passenger in a vehicle that was stopped by police for performing an illegal turn and was subsequently detained due to her immigration status.
Mr Bahar stated that the Tribunal Member, during the interview with the applicant, interrupted the applicant while she was giving oral evidence. That claim included the suggestion that the Tribunal Member would not allow her to express herself. In support of this claim Mr Bahar indicated that he wished to tender a transcript of the Tribunal hearing, but indicated it had not been prepared as an exhibit to a sworn affidavit. There was no indication as to who had prepared the transcript and whether that person was a qualified interpreter. Mr Bahar indicated that due to his late retention in this matter there had not been sufficient time to prepare the affidavit. It was pointed out to Mr Bahar that the transcript would not be not demonstrative if there had been any hesitations, breaks, stops or interruptions because a transcript simply records what has been said. Mr Bahar acknowledged that problem and indicated that he requested an adjournment in order to prepare that material.
Mr Bahar also claimed that the Tribunal failed to consider s.269 of the Migration Act (Securities) as there were two witnesses present at the hearing who were ready to provide a bond of $20,000 and possibly $25,000 depending upon what was required by the Minister. Mr Bahar also suggested that s.58 (Invitation to give further information or comments) was not addressed, but did not advance this claim any further. Mr Bahar informed the Court that Mr Khan, who was a witness at the Tribunal hearing, was present in Court, however, it was not his intention to call him. There was another claim that the interpreter service provided during the Tribunal hearing was not competent as there were a number of misinterpretations that may have influenced the final decision. Mr Bahar acknowledged that it would take several weeks to locate an independent expert to prepare a report on the standard of interpretation at the Tribunal hearing.
Respondent’s Submissions
The Minister submits that Regulation 1.03 of the Migration Regulations1994 (Cth) defines work as:
An activity that, in Australia, normally attracts remuneration.
It is submitted that it is plainly possible that doing chores or housekeeping activities may constitute ‘work’ for the purposes of Regulation 1.03 in some circumstances, including those of the applicant in these proceedings.
The Minister argues that in the present case the Tribunal did not make any specific finding that doing chores for Mr Chin was work for the purposes of condition 8101, or even that the applicant would or would not do chores for Mr Chin. The Tribunal’s account of its discussion with the applicant at the hearing about where the applicant would reside and what she would do is set out at CB 138 at [45]-[49]. In response to the applicant’s assertions that she would do chores but would not work, the Tribunal appears to have merely put to the applicant that any activity that would not normally attract remuneration was considered to be ‘work’, that doing chores ‘would’(for example, may be in that context) be work and asked:
…whether her staying with Mr Chin was contingent upon her undertaking chores.
(CB 138 at [49])
The Minister submits that the above ground mis-states the Tribunal’s reasoning. It is not the case that the Tribunal made a finding regarding what constitutes ‘work’ for the purpose of Condition 8101. Nor did it reach any conclusion about what type of work the applicant would or would not do to support herself if granted a Bridging visa E. Rather, the Tribunal found that the applicant appeared to be willing to change her evidence to suit what she understood it wanted to hear. Such willingness to change her evidence to suit her case supported the Tribunal’s ultimate conclusion that the applicant was not credible and could not be relied upon to abide by any visa condition, a conclusion that was abundantly open to it on the evidence.
Consideration
At the time that application was filed the applicant was represented by the law firm Parish Patience Immigration Lawyers. On 4 February 2013, the applicant’s then solicitors file a Notice of Intention to Withdraw as Lawyer, and on 13 February 2013 they filed a Notice of Withdrawal as Lawyer. I am satisfied that the Notice of Intention to Withdraw and the Notice of Withdrawal comply with the Federal Circuit Court Rules 2001 (Cth). Since 13 February 2013 the applicant has not been represented by Parish Patience Immigration Lawyers.
Mr Bahar, who is both a migration agent and a legal practitioner (holding a restricted practising certificate), appeared on behalf of the applicant at the final hearing and sought an adjournment. He informed the Court that he only very recently had been instructed to assist the applicant and had quite limited knowledge of the matter and the legal issues therein. He sought an adjournment on the basis that he wished to seek to instruct counsel to represent the applicant at a later hearing and to allow time for an independent interpreter to translate and transcribe the Tribunal hearing.
I refused the adjournment application on the basis that the applicant had been aware for some weeks that she would need to arrange alternative legal representation. I indicated that, because of the nature of the proceedings, a Bridging visa could be sought on a number of occasions and if the matter was to be dismissed a new visa could be sought immediately. I believed it was not in any real interest of the administration of justice to defer the hearing any longer.
During the hearing the applicant submitted that the Tribunal did not consider the evidence of the witnesses in relation to support for a bond. Ms Warner-Knight, for the Minister, took the Court to CB 92, where the Tribunal hearing record indicated that the Tribunal noted the witnesses who attended the hearing and who gave evidence. Ms Warner-Knight drew to the Court’s attention that during the Tribunal hearing the applicant was represented by a qualified migration agent and solicitor, Ms Diana Tong, and there was no basis upon which to believe that the witnesses who were present and wishing to give evidence were not called because there was no evidence to support that contention. Ms Warner-Knight argued against the applicant’s claim that she had been stopped or prevented from giving evidence. Further, Ms Warner-Knight suggested that, apart from the fact that there was no evidence before the Court, the applicant was assisted at the Tribunal hearing and it is unlikely that a qualified migration agent would allow a hearing to take place that did not allow the applicant to give the evidence that she sought to give.
The second issue, raised by the applicant, was in respect of what constitutes ‘work’ for the purposes of this consideration. Ms Warner-Knight argues that this issue was not a fundamental part of the Tribunal’s decision. The Tribunal made no findings as to what specific type of work the applicant may or may not perform, rather, it was not satisfied that the applicant would not work or abide by the conditions attached to her visa. The Minister submits that there is no legal error in the Tribunal’s reasoning when it raised with the applicant the prospect of asking her about whether she might be required to work for the person with whom she intended to reside by means of household chores. The Minister argues that there was ample evidence before the Tribunal for it to be satisfied that the applicant would not abide by the visa conditions, in light of her history, and it was upon that basis that the decision to refuse the Bridging visa was made.
Ms Warner-Knight submits that the applicant’s argument about what did or did not occur at the Tribunal hearing could have been addressed post hearing. Ms Warner-Knight brought to the Court’s attention the 33 page written submissions the Tribunal received post hearing that had been sent on behalf of the applicant by Parish Patience Immigration Lawyers. Ms Warner-Knight submits that any matters that the applicant wished to put before the Tribunal would have been put therein. The applicant had a full and fair opportunity to present her case at the Tribunal hearing and via the Tribunal’s consideration of the post hearing written submissions.
Ms Warner-Knight handed up the decision of Driver FM (as he then was) in Tian v Minister for Immigration and Citizenship & Anor [2013] FMCA 138 which deals with one of the applicant’s co-workers who was working with her as a tiler at the time they were stopped by police. His Honour at [21]-[22] of his reasons states:
21. There is a distinction between a failure to consider a claim and a failure to attend to some piece of evidence, even probative evidence, and by such route to commit a factual error[18]. The latter will not amount to jurisdictional error[19]. Here, however, it is not shown that the Tribunal failed to consider any of the applicant’s evidence.
22. As was abundantly open to the Tribunal, it found that, in light of her long history of utter disregard for her obligations under Australian immigration law, the applicant would not comply with the relevant visa conditions “even with, or despite community support”.
[18] Htun v Minister for Immigration (2001) 194 ALR 244 at [42] per Allsop J, with whom Spender J agreed; Singh v Minister for Immigration [2006] FCA 1113 at [25]- [34] and [39]-[41] per Jacobson J
[19] SZEHN v Minister for Immigration [2007] FCA 1451 per Lindgren J at [58]Parallels can be made between the matter before this Court and the decision of Driver FM. I agree and adopt the reasoning of Driver FM at [21]-[22] of the Tian (supra) decision.
Mr Bahar, in his oral submissions, suggested that the applicant was stopped from giving evidence during the Tribunal hearing. I note that the applicant was assisted at the Tribunal hearing by Ms Diana Tong, a solicitor and qualified Migration Agent and believe that it would be highly unlikely that the applicant’s Migration Agent would allow a hearing to take place that did not allow the applicant to give the evidence that she sought to give. Initially in support of this claim Mr Bahar indicated that he wished to rely upon a transcript, which was not supported by an affidavit setting out the qualifications of the translator. It was pointed out to Mr Bahar, that a normal transcript of this nature does not necessarily demonstrate that there have been any steps to prevent the applicant from saying anything because it is a document that simply records what was said absent of any recorded hesitations, breaks or stops.
In the absence of the Tribunal Member instructing the applicant to stop a particular statement, or any clear indication of not wanting to hear the details of a claim or an explanation, a standard transcript is of limited use to advance such a claim. I indicated to Mr Bahar that the minimum that the Court would require, in such a claim, would be a transcript prepared by an independent expert interpreter. This transcript should contain what was said in the native language, compared with what was translated to the Tribunal Member, highlighting any differences in what was actually said and what was translated, together with separate comments as to all hesitations, breaks and stops. That document would need to be an annexure to a sworn affidavit of that independent expert, stating their qualifications and experience in the translation in the Chinese-English and English-Chinese mediums, together with an undertaking as to the understanding and compliance with the requirements of providing expert evidence.
Clearly, there was no evidence of this nature before the Court in respect of this claim. Mr Bahar acknowledged this shortfall and sought a further adjournment in order to locate an appropriate independent expert to perform this particular task and to locate suitable counsel to argue the matter. I note the similarities of the approach taken in this matter to that of Tian (supra) which concerned one of the applicant’s colleagues, who was stopped in the same vehicle by police on or around 9 September 2012 and who had made a very similar application. In Tian (supra) the applicant came with a friend, also named Mr Khan, and a recently appointed solicitor who similarly sought an adjournment.
Despite the applicant’s previous legal representatives withdrawing their instructions in respect of these proceedings on 12 February 2013, the applicant had been on notice for some time (since December 2012) that the final hearing in this matter was scheduled for this date and that fresh legal assistance should have been sought earlier. Although this may have been difficult for an unrepresented litigant held in detention, this is significantly outweighed as the applicant clearly had connections to third parties willing to provide their assistance, similar to that provided to the applicant in Tian (supra) which was before the Court on 28 February 2013. This matter, however, was not scheduled for hearing until 5 April 2013. In the circumstances I am not satisfied that this claim can be sustained.
Mr Bahar, in oral submissions, indicated that the Bridging visa E was subject to a condition of ‘no work’ which led to the query as to whether the performing of household chores fell within the ‘no work’ provisions. The applicant initially indicated to the Tribunal that if she was granted a Bridging visa she would continue to work as a tiler in order to pay all her legal fees. However, when it was pointed out that this would breach the no work provision an alternative proposition was promoted. This proposition was that the applicant would perform household chores for Mr Khan. That was equally abandoned when it was pointed out that it may be consider as ‘work’ for migration purposes.
The Tribunal sets out its reasons at [74] of the Decision Record:
74. Despite assurances by the applicant and her witnesses that she would comply with conditions attached to her visa the Tribunal based on the evidence before it cannot be convinced. The applicant during her evidence at interview stated that is she was released from detention that she would work in order to pay her solicitor’s fees because the solicitor was not seeking up front payment. The applicant then retracted this comment after being made aware of the no work condition that would be attached to her visa. Further to this the applicant stated that she would undertake chores for one of her witnesses Mr Chin if she resided with him and only retracted this when the Tribunal noted that anything that normally attracts remuneration in Australia is considered work for migration purposes and thus if she was to do chores for Mr Chin she would be in breach of her visa. The Tribunal is of the view that if released into the community with limited ties in China and no real connection to her claimed country of nationally, North Korea that the applicant could again be compelled to go underground and work due to the lack of financial resources at her disposal in Australia and the potentially hapless future that she would face if returned to China or as she claims could happen, North Korea.
(CB 143)
The claim that household chores were defined as ‘work’ within the criteria of the visa is not supported by the wording of the passage above that the issue of ‘work’ was not raised as a condition for the refusal of the visa. Rather, it was the action of the applicant took during the hearing to abandon the two options that she was putting forward as to how she would support herself if a visa was granted. When it was indicated to the applicant that supporting herself would be achieved in exchange for performing household chores, that could be interpreted as remuneration that proposal was abandoned by the applicant. I am satisfied that this ground could not be sustained.
In his opening Mr Bahar advanced the argument that the Tribunal failed to consider the operation of s.269 of the Migration Act. Ultimately, this contention was not pursued. Notwithstanding, s.269 of the Migration Act states:
Securities
(1) An authorized officer may, subject to subsection (1A), require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:
(a) by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or
(b) in accordance with a form of security approved by the Minister.
(1A) The power of an authorized officer to require and take security under subsection (1) in relation to an application for a visa applies only if:
(a) the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and
(b) the officer has indicated those conditions to the applicant.
(2) A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.
(3) Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.
(4) If it appears to the court that a non-compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reason of:
(a) an extension of time or other concession;
(b) any consent to, or acquiescence in, a previous non-compliance with a condition; or
(c) any failure to bring suit against the subscribers upon the occurrence of a previous non-compliance with the condition.
Mr Bahar indicated that there were two witnesses present at the Tribunal hearing who were ready to provide a bond of $20,000 and possibly $25,000, depending upon what was required by the Minister. This issue was raised, by the Tribunal Member during the hearing and is recorded at [56] of the decision record, which states:
56. The Tribunal asked the assembled witnesses whether a security deposit could be raised if the Tribunal was mindful of releasing the applicant into the community and that given her adverse immigration history it would have to be a meaningful amount starting at $20,000.00. The witnesses advised that this money could effectively be raised.
(CB 139)
The Tribunal addresses this issue in its “Findings and Reasons” at [78], where it states:
78. The Tribunal has considered whether the applicant may comply with visa conditions if there was a financial incentive to do so. However, given the applicant’s immigration history to date, and the applicant’s distain for immigration law and procedure, the Tribunal cannot be satisfied that any such amount would form a sufficient financial incentive for the applicant to comply with conditions that may attach to her Bridging visa E, if one was granted. In making this finding the Tribunal places significant weight on the applicant’s past conduct and her disregard for visa conditions and migration requirements.
(CB 145)
In the absence of any particulars in respect of this ground I am satisfied that the Tribunal has addressed the issue and that this claim cannot be sustained.
The other unparticularised oral claim raised by Mr Bahar in his opening submissions is that the Tribunal failed to address the requirements of s.58 of the Migration Act. Section 58 states:
Invitation to give further information or comments
(1) If a person is:
(a) invited under section 56 to give additional information; or
(b) invited under section 57 to comment on information;
the invitation is to specify whether the additional information or the comments may be given:
(c) in writing; or
(d) at an interview between the applicant and an officer; or
(e) by telephone.
(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be made at an interview at the new time.
In the Decision Record which sets out the details of the Tribunal hearing, this issue was addressed at [57] where it states:
57. The applicant’s representative asked the Tribunal whether it could make a post hearing written submission. The Tribunal noted that it had a limitation on the finalisation of the matter which was required to be finalised by 3 October 2012 and that it would accept any written submission by close of business on 2 October 2012. The Hearing concluded.
(CB 139)
The Decision Record then refers to the post hearing submissions which are detailed at [58]-[60]. Post hearing written submissions were lodged by Parish Patience Immigration Lawyers on behalf of the applicant. Those submissions were 33 pages in length (CB 93-125). Again, in the absence of any particulars as to how this section of the Act was not complied with I am satisfied that this claim cannot be sustained.
The last issue concerns the standard of interpretation. Under s.363 of the Migration Act, the Tribunal is required to provide an interpreter where the applicant is unable to give evidence without one: VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [8]. The Tribunal has a statutory obligation under s.360 to ensure the invitation to a hearing is “real and meaningful”; Applicant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [16]. This includes providing an interpreter of sufficient skills such that the applicant is not denied his or her right to a fair hearing: VWFY v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [27].
The applicant must show one of the following: Applicant P119/2002 (supra) at [17]):
…(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
See also Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168.
Generally, the Court should consider:
a)Whether there is a ‘correct’ translation available, against which the interpreter’s performance is compared: VWFY (supra) at [10]. In making comparisons “it is sufficient if the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated”: NAIF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 458 at [63]; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [66].
b)The manner of the applicant’s responses including “the responsiveness of interpreted answers to the questions asked, the comprehension of those answers and consistency of one answer with another and the rest of the case sought to be made more generally in the evidence of confusion in exchanges between the Tribunal and the interpreter”: Perera (supra) per Kenny J at [41], applied in VWFY at [11] and applied in P119/2002 at [20].
In the absence of a verified transcript the Court must rely on the presence of the applicant’s legal adviser, who was a lawyer and migration agent familiar with the applicant’s claims as she had had carriage of the matter since the filing of the original application. There is no reference in the Tribunal decision concerning any dispute over the standard of translation, nor is there any reference in the post hearing submissions, prepared by Diana Tong to problems relating to translation. In these circumstances, I am not satisfied that this ground can be sustained.
Conclusion
Consequently, none of the grounds raised by the applicant can be sustained. On the material before the Court, I am satisfied that the application should be dismissed with costs awarded to the first respondent.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Date: 7 June 2013
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