SZEJG v Minister for Immigration

[2005] FMCA 568

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEJG v MINISTER FOR IMMIGRATION [2005] FMCA 568

MIGRATION – Review of decision of Refugee Review Tribunal – no evidence of bad faith or bias – no apprehension of bias or bad faith – no failure to provide appropriate level of interpretation – no failure to provide procedural fairness – no failure pursuant to s.424A – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424, 424A, 425(1), 422B

Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Re Applicant S154; Ex parte Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 437; [2003] HCA 60
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109

Applicant: SZEJG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2780 of 2004

Judgment of: Nicholls FM

Hearing date: 12 April 2005

Date of Last Submission: 12 April 2005

Delivered at: Sydney

Delivered on: 12 April 2005

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr Beech-Jones

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2780 of 2004

SZEJG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) filed on 8 September 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 July 2004 and handed down on 10 August 2004, to affirm the decision of a delegate of the respondent Minister made on 30 April 2004 to refuse a protection visa to the applicant.

2. The applicant is a national of the People's Republic of China who arrived in Australia on 25 March 2004.  His claim to a well-founded fear of persecution was based on his Christianity and harm feared from the Chinese authorities.  These claims were particularly set out in:

   -a Statutory Declaration submitted by the applicant to the respondent's Department with his application for a protection visa on 23 April 2004.  Court Book 23 to CB 26. 

   -a Declaration submitted to the Tribunal with his application for review on 6 June 2004.

   -a hearing before the Tribunal on 15 July 2004 (CB 50 to 53).  The Tribunal's report of this is at CB 71.9 to CB 72.5.

3. The applicant appeared in person at the first Court date in this matter on 20 September 2004.  He was assisted by an interpreter in the Mandarin language.  The applicant accessed the Court's Legal Advice Scheme and, on 13 December 2004, he consulted a lawyer on the panel of that scheme and was provided with advice on 19 January 2005.  On 31 January 2005 he filed an amended application which the applicant told me in Court today was prepared with the assistance of “an agent”.  This amended application asserts error of law and procedural error constituting an absence of natural justice on the part of the Tribunal amounting to jurisdictional error. By particulars, the applicant's specific complaints can be put as:

   (1)Apprehended bias on the part of the Tribunal;

   (2)That the Tribunal failed to provide a competent level of interpretation, especially in relation to the translation of religious terms; and

   (3)A failure to comply with s.424 and s.424A of the Act.

4. I also have before me an affidavit filed in Court today.  The affidavit of Kristy Lee Alexander, a solicitor in the employ of the respondent's solicitors, and I will refer to this affidavit when relevant below.

5. The Tribunal's summary of the applicant's claims are outlined in paragraph 2, items (i) to (vi) of the respondent's written submissions, which were filed on 8 April 2005, and I adopt these for the purposes of this judgment.  

6. In summary, the applicant claimed:

   (i)that he was a pious Christian but rejected the state sanctioned churches in China and instead participated in a so called “underground church” (RD 23.2);

   (ii)in February 2002 he agreed with a local underground church leader to uses part of his business premises as an underground church (RD 24.2);

   (iii)despite visits on occasions by public security bureau officials (“PSB”) the use of the business as an underground church was not known by the authorities until December 2003 (RD 25.2);

   (iv)acting on a tip off, the police the [sic] raided the business on 13 December 2003 and he was thereafter subjected to repeated interrogation by the PSB (RD 25.5);

   (v)the brother of one of the churches elders was arrested in March 2004.  The applicant became apprehensive that this would lead to his being discovered (RD 25.9);

   (vi)after his departure from China, a former manager surrendered and confessed to his involvement in the underground charge and advised the authorities the applicant was involved (RD 52.5).

7. It is clear from the Tribunal's decision record that it was not satisfied that the applicant had a well-founded fear of persecution.  This was based on its finding that he was not a Christian.  The Tribunal came to this view because, as it said at CB 72.6:

   “The applicant's lack of any knowledge of baptism or of the bible and his replies to questions about how he and his wife and his sister in law had come to Christianity were quite unbelievable and I told him so in the hearing.”  On the first occasion on which I did so, the applicant made no reply.  I am unable to accept his claim to be a Christian.  The subsequent findings relating to the formation of the underground church flowed from this finding.”

   The Tribunal said, at CB 72.8:

   “I am therefore unable to accept any of his claims about the events which he describes in his primary and Review applications regarding the formation of an underground church and the attention it received from the Chinese authorities.  I am unable to accept that he was arrested and interrogated or that any associate of his was arrested or is in hiding because of their Christian affiliation or activities.”

8. The applicant now claims in support of his assertion that there was apprehended bias on the part of the Tribunal and that this is shown by the Tribunal's view of what religious knowledge a professed Christian should have.  The applicant says, in his application, and he repeated this at the hearing before me today, that the Tribunal failed to adopt a proper method to test the applicant's religious knowledge.  The applicant correctly refers to the relevant test for apprehension of bias in the context of this Tribunal by reference to whether a fair-minded lay observer or properly informed lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the review Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28. But the applicant has not brought any evidence before the Court to support his claim of what happened before the Tribunal in this regard. The only relevant material before the Court is that contained in the Tribunal's account in its decision record and in this regard, see CB 71.9 to CB 72.5.

9. The Tribunal's account of the applicant's claims commences at CB 66.7 with the Tribunal's reproduction of the applicant's claims in his application for a protection visa and his written statement to the Tribunal.  It is very clear that the applicant's claims centre around the assertion that he is a Christian.  At CB 66.8, The Tribunal reproduces the applicant's claim where, he says:

   “I am a pious Christian.”

   The Tribunal starts its account of the hearing before it by focussing on this issue.  At CB 71.9, the Tribunal says:

   “At hearing, I asked the applicant about his coming to Christianity.”

10. It is clear from the Tribunal's account that the applicant was not able to provide information on the following: 

    -instruction received before baptism for the applicant and his wife

    -the names of any book of the New Testament, or

    -to describe a gospel.

11. In the context of the applicant’s clams, and in the absence of any evidence to the contrary, this line of questioning appears appropriate and relevant to put to someone who professes to be a pious Christian involved in a Christian, even underground, church.  This line of questioning does not involve any profound theological issues.  It is as the Tribunal describes ‘the most basic things about Christianity”.  The applicant has not said what a proper method for defining his religious knowledge would be.  What is clear however is that the example used by the applicant does not go to show that the Tribunal did not bring an impartial mind to its task.  The applicant has not put forward evidence to support an apprehension of bias in the Tribunal's approach, nor is anything of this nature evident on the material before me. 

12. The applicant's second complaint is that the Tribunal ignored the poor ability of the interpreter during the hearing to accurately translate religious terms.  The applicant points to what is described as, “the significant evidence”, and reproduces in the amended application, with explanations, a purported exchange presumably at the hearing before the Tribunal, involving the applicant, interpreter and Tribunal.  It is clear that this is presented in the amended application, and not in any appropriate evidentiary context, but nonetheless mindful that the applicant is unrepresented before me today, I do turn to the issue of whether the applicant was denied a fair hearing in this regard.  It is, of course, a basic principle that the applicant should have a reasonable opportunity to present his case before the Tribunal.  The Tribunal is under a statutory obligation to provide a competent interpreter who does in fact provide a competent interpretation.

13. The Tribunal will have breached its statutory obligation if it provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence.  In Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 Goldberg J, after looking at relevant authorities, said at [31]:

    “These passages suggest that where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s 425(1). I agree with the observations of Wilcox J in Xiao above, at [30] that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s.425(1).”

14. Similarly if an interpreter provided by the Tribunal has interpreted in an inadequate way, there would be a breach of the common law hearing rule because the opportunity to put a case is illusory.  (See, for example, Hill J in SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312). But not every error or problem with interpretation will amount to a denial of procedural fairness. In the Full Federal Court decision of WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171, in referring to Justice Kenny in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 (“Perera”) at [25]-[26] said at [66]:

    “However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”

15. In Perera at [45], the Court said:

    “It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal.  The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision ….” 

16. The lapse in interpretation needs to involve the vital interests of the applicant and not merely some collateral or extrinsic matters.  In the case of Perera the Court held that the appropriate standard of interpretation before the Tribunal should include precision or accuracy, impartiality on the part of the interpreter and competency.  Elements that go to incompetence such that the applicant is prevented from effectively giving evidence include the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made out and any evident confusion in exchanges between the Tribunal and the interpreter.  Although, other than the latter, these elements could also be reflections or consequences of the paucity of an applicant’s claims.

17. In the case before me, the applicant would need to establish that he was either effectively prevented from giving evidence or that specific mistakes were relevant to the Tribunal's decision.  It is not enough that the applicant merely assert one alleged problem that may have occurred before the Tribunal.  Relevantly, in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, a Full Federal Court decision, and in particular, paragraph [17] of the joint judgment of Mansfield and Selway JJ, their Honours set out what an applicant would need to establish to demonstrate a jurisdictional error arising from inadequate translation. In that case their Honours said that the applicant would need to establish:

    a)that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant 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 applicant.

18. In written submissions, Mr Beech-Jones for the Minister, submits that there is no evidence to support the applicant's claim that he was denied a proper opportunity to put his claim.  The extract of the applicant's account of what happened at the hearing before the Tribunal is not, obviously, the entire transcript of the hearing before the Tribunal and there is no evidence that it was prepared by a suitably qualified person. In particular, as Mr Beech-Jones submits, the applicant's capacity to assert the matters, as put in his amended application, is qualified by reason of his need for an interpreter in the first place.  Before me, the applicant submitted that the applicant's amended application was prepared by an adviser on his behalf and that in particular, in relation to the purported partial transcript, that the agent would not lie.  Be that as it may, the applicant’s assertions do not have the strength of evidence before the Court.  In this regard, I note the applicant did access legal advice and would have had the opportunity to obtain advice as to how to provide relevant evidence to the Court.  The evidence that I do have before me is to the affidavit of a solicitor in the employ of the respondent’s solicitors, Kristy Lee Alexander, of 12 April 2005, and I note in that affidavit which was read in Court today the matters asserted in the affidavit and, in particular, paragraph 4 of the affidavit:

    “I have listened to the tape of the applicant's hearing before the Tribunal.  I did not hear conversations set out by the applicant in his amended application.”

    Mr Beech-Jones clarified for the Court that of course that would have been conversations of the part of the tape that was in English.

19. But even in the event that I was to accept the extract in the amended application as an accurate record of what occurred at the hearing before the Tribunal, the best that can be said is that the difficulty in translation was centred around the words “priest” and “father”, and of course that is, the use of the term “father” in the religious context.  It is not evident on the material before me that this alleged difference in translation in this regard was material or a matter of any significance in the way as explained by the authorities to which I have already referred.  It is clear that the Tribunal based its decision that the applicant was not a Christian on:

    (a)the matter of instruction before baptism;

    (b)his church’s practice in the reading of the Bible, and

    (c)the applicant’s lack of capacity to identify the first book in the Bible or any book in the New Testament or to explain the term “gospel”.

20. It was the applicant’s ignorance of these basic issues relating to Christianity that was the critical factor.  There is nothing relevant before me to challenge the Tribunal’s findings in regard to the above based on inadequate interpretation.  To the extent that the words “father” or “priest” may have been relevant to any discussion about who gave the instruction prior to baptism but this does not appear to be significant in the context of the Tribunal’s findings which did not appear to base its findings on any distinction between the two terms.  For these reasons, this ground must fail.

21. The third ground asserts a breach of s.424 and s.424A of the Act. To the extent that this is properly particularised, the applicant complains that the Tribunal regarded religious knowledge as “one important information in making its decision on review”. The applicant submits that a failure to put this “negative” information is a breach of the statutory requirement. What is clear is that the Tribunal decision did not turn on the type of independent country information that is common in other cases involving the Tribunal before this Court. As Mr Beech-Jones submits, this is not the kind of information obtained from a third party. The applicant did not satisfy the Tribunal that he was owed protection obligations because, as I have already said, of his lack of knowledge of basic factors relevant to the belief and practice of Christianity. It was the applicant’s failure to show his knowledge and to provide to the Tribunal the requisite basic information that led to the Tribunal’s finding that he was not a Christian.

22. But if the applicant’s complaint could also be seen as a failure by the Tribunal to provide the applicant with an opportunity to comment on its negative opinions arising from the applicant’s inability to provide basic answers to requests for information about Christianity, then there is authority that the Tribunal is not required to provide an opportunity for comment on its thought processes on the way to making a decision.  (See Re Applicant S154; Ex parte Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 437; [2003] HCA 60, in particular at paragraphs [85]-[86] per Kirby J, with reference to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592.) This general proposition is qualified by the requirement that a decision-maker should provide an opportunity for comment on any adverse conclusion which would not obviously be open on the material supplied by an applicant. The key issue is that the applicant should not be caught unawares. As McHugh J said in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [101]:

    “One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.  It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”

1. In the case before me it is clear that the applicant would have been on notice that the issue of the need to provide an understanding of the basic concepts of Christianity would have been critical to his claims.  The respondent’s delegate, in his statement of reasons reproduced relevantly at CB 37.3 said, referring to the applicant:

   “Nor does he display in his submission anything more than a superficial understanding of some of the concepts of Christianity.”

2. Further, and relevantly, at about CB 37.6, the respondent’s delegate goes on to state:

   “The applicant does not present in his submission as a person with such a knowledge of or fervour for Christianity that he would risk arrest and detention by providing a meeting place for the outlawed underground church.”

3. At CB 37.8:

   “I find the applicant’s claims lacking in veracity and credibility.  Overall, his claims can only be described as scant in substance.  Based on the evidence and circumstances as presented by the applicant I do not believe that he was a practitioner or organiser of an outlawed underground Christian church.”

4. The applicant had been provided with a copy of the delegate’s decision (CB 45).  I also note that at the relevant times the applicant was represented by a migration agent (CB 47) and would have had the opportunity for this issue to have been further explained, notwithstanding that this is clearly obvious from the respondent’s delegate’s record of decision.  But even further, the Tribunal reports on its hearing with the applicant and at CB 72:

   “I said to the applicant that, in view of his ignorance about the most basic things about Christianity, I could not accept that he was a Christian.  In that case, I could not accept either that the things that he claimed had happened to him had in fact happened.  The applicant made no reply.”

5. It is quite clear that the applicant should have gone into the Tribunal hearing being fully on notice of the critical issue, that is, of the need to demonstrate his understanding of Christian practice and belief. He would also have been on notice because of the letter sent by the Tribunal to the applicant and his adviser on 8 June 2004 (CB 54 to CB 55), that the Tribunal, on what was before it, was not in a position to make a favourable decision. Further, according to the Tribunal’s unchallenged account, he was specifically put on notice about this central issue at the hearing before the Tribunal, and reportedly made no reply.

6. Further, the review conducted by the Tribunal was subject to s.422B of the Act and, to the extent that Division 4 of Part VII of the Act is an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with, then s.424A deals with information that must be given to the applicant. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason or part of the reason for affirming the decision under review but. Clearly, s.424A is concerned with knowledge of a fact or circumstance communicated to, or received by, the Tribunal. It is not concerned with the thought processes of the Tribunal. In Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109, Sackville J said:

   “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s 424A(1).  Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence in that case might not be accepted at face value, its failure to do so would not have contravened s 424A(1).” 

7. The applicant cannot succeed on this ground.

8. The applicant was unable to satisfy the Tribunal that he was a Christian.  All the claimed events of harm or threat of harm were dependent on this central factor.  Once this was rejected, the applicant’s other related claims fell away.  The applicant should have been on clear notice as to the importance of this issue to his application, and the need to satisfy the Tribunal in regard to it.

9. On the material before me, it was open to the Tribunal to make the finding that it did and it gave reasons for the finding.  The applicant has been unable to show any error, let alone jurisdictional error, on the part of the Tribunal, and nor is any evident on the material before me.  This application is dismissed for these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  15 April 2005