SZGSI & Anor v Minister for Immigration & Anor
[2008] FMCA 1649
•17 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGSI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1649 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant the applicants a protection visa – applicants are citizen of the People's Republic of China claiming fear of persecution for reasons of their religion – allegation of bias – apprehension of bias – interpreter – whether applicants were deprived of procedural fairness due to errors on the part of the interpreter – credibility issues. PRACTICE & PROCEDURE – Where proceeding reopened to allow further submissions. |
| Migration Act 1958 (Cth), ss.91R, 424, 424A, 425, 474 |
| Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka (2001) 179 ALR 296 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 SZGWN v Minister for Immigration & Anor [2007] FMCA 1748 SZGWN and SZGWO v Minister for Immigration & Citizenship [2008] FCA 238 Appellant P119 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 SZLGF v Minister for Immigration & Citizenship [2008] FMCA 258 SZJKO v Minister for Immigration & Citizenship [2008] FMCA [2008] FMCA 370 SZGME v Minister for Immigration & Citizenship [2007] FCAFC 91 distinguished SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 |
| First Applicant: | SZGSI |
| Second Applicant | SZGSJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 804 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 22 July and 22 October 2008 |
| Date of Last Submission: | 22 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $9,800.00.
I will allow eight (8) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 804 of 2008
| SZGSI |
First Applicant
| SZGSJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicants are citizens of China. They have applied to the Court for review of a decision of the Refugee Review Tribunal signed on
10th March and handed down on 20th March 2008. The Tribunal affirmed the decisions of a delegate of the Minister for Immigration
& Citizenship not to grant the applicants Protection (Class XA) visas.
The applicants now seek orders that the decision of the Refugee Review Tribunal should be set aside. I take that to mean an application for an order in the nature of certiorari. The applicants rely on what are set out as 11 grounds in their application, although the grounds are more in the nature of submissions than a set of grounds.
Basically, the applicants claim that the Tribunal fell into jurisdictional error because of bias on the part of the Tribunal Member and errors due to the inadequacy of interpreting at the hearing.
Background
The background to this matter is that the applicants, who are husband and wife, arrived in Australia on 20th October 2004. They left Australia on 22nd October 2004 and travelled to New Zealand.
They re-entered Australia on 25th October 2004. On 5th November they applied to the Department of Immigration and Citizenship for protection (Class XA) visas. The first applicant, who is the wife, is a part C applicant. She has made a claim for protection in her own right. The second applicant, her husband, is a part D applicant. He applied as a member of the family unit of the first applicant.
The basis for the application for protection appears in a statutory declaration declared by the first applicant which accompanied the application for a protection visa. It is typed and set out on pages
30 through to 34 of the Court Book. The first applicant claims to be a Christian and to have actively spread the gospel in China.
However, her religious belief and practices had not been tolerated by the authorities of the People's Republic of China and she claimed that she had to leave her country in order to escape from persecution by the Chinese government. She claimed to have been born into a family of Christians. Her home was a secret gathering place when she was a child and she claimed that the Public Security Bureau (the PSB) found out about it and her father was detained for two or three months. Whilst there is a public church in her town, the applicant said that she was never allowed to go there because her parents believed that there was no genuine religious freedom in that church. She claimed that in March 1998 she began to work at a diesel oil wholesale shop and met an experienced saleswoman there who was a pious Christian like her parents and this lady encouraged the first applicant in religious studies and the studies of the Bible.
The first applicant claimed that in September 1999 the police came to her place of employment and the lady concerned was taken away by police officers. She claimed that she and other staff members were questioned and she was subjected to interrogation for the whole night and was not released until the following day. Subsequently she found that she had been dismissed from her employment and later found out that her friend had been sentenced to two years' reform through labour and was sent to a labour farm some distance from the applicant's town. The first applicant claimed that she did not have any employment for a year and a half but was supported by other Christians who assisted her to continue her religious activities in the underground church.
She claimed that in 2001 she established a business which was a petrol station, but was also a secret liaison station of the underground church where they received and stored religious propaganda materials including Bibles, where they distributed religious material to religious groups of the underground church and it was also a communication centre for religious groups to maintain contact with each other.
The first applicant claimed that a Christian whom she knew was arrested and that person confessed to the PSB. Another Christian who was on the staff of the petrol station was implicated but escaped before she was apprehended by the PSB. The first applicant claimed that when the police started making other inquiries she became scared and had to start to arrange to travel overseas. She obtained a passport and later a visa and left China on 19th October 2004. She claimed that after she left China her former staff member was arrested and after that five other people were arrested. She claimed that she was informed by family and friends in China that her home had been searched by the PSB and she feared that she would be arrested if she returned to China.
A delegate of the Minister considered the applications for a protection visa. The delegate considered that the applicant's claims concerning her more recent involvement in the underground religious group should be rejected as lacking credibility, and the delegate set out the reasons why those claims were lacking in credibility. The delegate noted that the applicant left China, travelled to Australia and then went on to New Zealand but did not seek protection at that stage. The delegate said:
If this claim was true, I consider it unlikely for her to have proceeded on her holiday itinerary rather than remaining in Australia and applying for a protection visa as quickly as possible. Alternatively, if she believed she could obtain a better level of protection in New Zealand, it was open to her to seek the assistance of that government during her stay there. The fact that the applicant only sought protection from the Australian government after returning from her holiday in New Zealand raises questions about the intended purpose of her trip. Overall, the applicant's claims to fear persecution by the PRC authorities for her involvement in an underground religious group are not credible or supported by independent country evidence.[1]
[1] See Court Book page 57.
Application to the Refugee Review Tribunal
The applicants then applied to the Refugee Review Tribunal for a review of that decision. The application was considered by the Tribunal, which affirmed the decision of the delegate on 18th May 2005. The applicants then sought judicial review of the Tribunal decision by this Court, which dismissed the application for review on 18th October 2006. On 27th July 2007 the Full Court of the Federal Court handed down its decision on the applicants' appeal against the decision of the Federal Magistrates Court dismissing their application. The appeal was allowed. The orders of the Federal Magistrates Court were set aside and there were orders in the nature of certiorari and mandamus quashing the Tribunal decision and requiring the Tribunal to review the delegate's decision according to law.
The applicants were then invited by the Tribunal to attend a hearing and they attended that hearing on 11th October 2007. They both gave evidence, as did a witness who was a member of church which the two applicants attended in Sydney. The applicants' migration agent attended the Tribunal hearing.
On 18th October 2007, a week after the hearing, the Tribunal wrote to the applicants in a letter headed "Invitation to Comment on/Respond to Information in Writing". The letter invited the applicants to comment on or respond to information that the Tribunal considered would be, subject to any comments or response they made, be the reason or a part of the reason for affirming the decision under review. Clearly the letter was intended to comply with the requirements of s.424A of the Migration Act. The Tribunal then set out the information and set out reasons why the Tribunal considered the information was relevant to the review. The applicants were invited to provide comments or a response by 1st November 2007.
On 11th November the applicants' migration agent forwarded a letter to the Tribunal which was received the next day. That letter contained not only comments but also a DVD depicting a funeral said to be of the second applicant's elder brother which was attended by people, including members of the family church, and a handwritten document. They also provided a letter from their witness which was dated
11th November 2007, a copy of a receipt for the payment of a fine for the registration of the applicants' second child born 1st April 2002 and copies of transcript of the Tribunal hearing of 11th October.
That transcript appears in the Court Book.
The Refugee Review Tribunal decision
The Tribunal handed down its decision on 20th March 2008 affirming the delegate's decision. A copy of the Tribunal decision record appears in the Court Book at pages 437 through to 461. In the decision the Tribunal considered under the heading "Claims and Evidence" the claims by the applicants to the department and to the previously constituted Tribunal. The Tribunal also set out the applicants' written claims made to that Tribunal and the oral evidence by both applicants and from their witness. The Tribunal then looked at its own s.424A letter and the response by the applicants. The Tribunal considered the evidence of the DVD of the funeral of the second applicant's brother.
The Tribunal's findings and reasons are set out on pages 458 to 461 of the Court Book. The Tribunal accepted on the basis of the passports provided that the applicants were both nationals of the People's Republic of China. It accepted that they had both lived in the town where they claimed to have lived with the family of the second applicant, that is, the husband. The Tribunal accepted that family was Christian and devoutly so and accepted that the second applicant, the husband, had not been as deeply involved in the Christian church as his family and as the first applicant, the wife, had been. The Tribunal accepted that part of the reason for that was that he was busy with his petrol station business.
However, the Tribunal did not accept that the husband had avoided a closer and deeper involvement with Christian church life in the People's Republic of China due to having witnessed or having heard of persecution of Christians and noted that that conclusion arose not only from findings on the DVD evidence but also from both applicants having identified the husband as having work preoccupations as a significant factor of his non-involvement. The Tribunal noted that the applicants had openly admitted to having misled the previously constituted Tribunal, claiming that they were under pressure from their previous migration advisers. The Tribunal noted the admission in writing of the first applicant that she chose to do what she clearly understood to have been the wrong thing. The Tribunal said:
It is reasonable in the circumstances to attribute a high degree of responsibility to the applicants themselves for the deceptive and misleading evidence they presented to the previously constituted Tribunal, evidence including concocted events and practices, and concocted or distorted individual human players who do not reappear even in "corrected" roles in the more recent set of claims.[2]
[2] See Court Book page 458.
The Tribunal went on to say that it considered the new evidence and taken account of concerns raised by the applicants regarding imperfections in the interpretation at the hearing on 11th October 2007 and accepted, perhaps somewhat grudgingly, that the applicants had together and apart given largely consistent accounts being linked to an unauthorised underground family Protestant church in the People's Republic of China. The Tribunal again went on to refer to interpretation issues which the applicants explained and clarified in their post-hearing submission and found that the applicants had an opportunity to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review referring to s.425 of the Migration Act.
The Tribunal, not without some concerns, accepted further items from the applicants' evidence and referred to the general consistency of their new set of claims. However, the Tribunal found that the evidence about the name and characteristics of the family church in the case was generally vague and commented that the first applicant herself was generally vague about certain details. The Tribunal was prepared to accept the applicants' account of a raid in February 2004 by the police followed by arrests, warning of future arrests and ongoing scrutiny. However, the Tribunal expressed its doubts about certain explanations given by the applicants and expressed doubts that the February 2004 episode occurred and went on to find:
The Tribunal is unconvinced on the evidence before it that the church to which the applicant's husband's family belongs has existed both secretly and under the kind of pressure that the alleged February 2004 incident is claimed to have introduced. Overall, the Tribunal does not believe that the police have ever taken the interest in the relevant "family" and "church" group that the applicants claim they have taken. Accordingly, the albeit consistent evidence in this matter of a February 2004 raid, arrests and ongoing scrutiny by the authorities is dismissed by the Tribunal as unreliable.[3]
[3] See Court Book page 460.
The Tribunal was not satisfied on the evidence before it that the church in this case was an unregistered or an unauthorised Protestant church. It found that the second applicant husband had very little to do with the church, although the first applicant wife nevertheless claimed that she had. The Tribunal, taking all the evidence into account, was not convinced the first applicant had really been genuinely or closely involved with that church. The Tribunal did not accept that the applicants faced a real chance of persecution in the People's Republic of China for reasons of having been members of a Christian church in that country because the Tribunal found on the evidence the Christian church with which they claimed to identify with was legal and operated openly to an extent that led the Tribunal to find that it was an authorised church.
The Tribunal did note that the applicant had joined a church in Australia, and taking into account the fact that the applicants had been misleading about their religious affiliations and convictions to the previously constituted Tribunal, the Tribunal expressed itself to have serious concerns about the applicants' motivations for joining the church in Australia. The Tribunal said:
The Tribunal is of the view that the applicants have engaged with this church for the purposes of strengthening their claims to refugee status, having abandoned their claims to the previously constituted Tribunal about being Shouters. Having regard to subsection 91R (3) of the Act, the Tribunal disregards the applicants' evidence of involvement with Christian communities in Australia.[4]
[4] Court Book pages 460 to 461
The Tribunal found that the applicants were not witnesses of truth in their claims relating to religion and found a similar pattern of revision in the first applicant's claims about her second child. The Tribunal said:
The Tribunal finds a similar pattern of revision in the applicant's claims about her second child: the claim about a ‘bribe’ to prevent abortion transformed into a claim about receipted payment of a social compensation fee for the regularisation of the second child after birth. As with the DVD of the funeral, the documentary evidence relating to this part of the applicant's story ultimately disclosed an innocuous situation for the persons concerned, except in the matter of the church, the applicants have still tried to maintain, unconvincingly, that the DVD is evidence of their family belonging to an unregistered church in the PRC, whereas in relation to the matter of ‘excess’ children they have emphasised that they are making no protection visa claims.[5]
[5] Court Book page 461
The Tribunal found that the applicants did not apprehend or face a real chance of relevant harm for having born a third child and was not satisfied that they faced a real chance of Convention-related persecution in the People's Republic of China. The Tribunal found that their claimed fear of persecution was not well-founded and that they were not refugees.
Application for judicial review
The applicants have commenced proceedings for judicial review in this Court by means of an application and affidavit filed on 4th April 2008. The first applicant attended the hearing; the second applicant did not. In reply to a question from the Court, the first applicant indicated that her husband was at home looking after the baby. She said that she had authority to speak on her husband's behalf.
The first applicant had filed an affidavit on 7th July 2008 on which she sought to rely. Annexed to it was a transcript of the proceedings, which was a duplicate of that already on the Court Book, and some documents in the Chinese language. There was also annexed a statement of comments from the first applicant. Whilst there was an objection by counsel for the Minister to my receiving the affidavit into evidence, I formed the view without objection from counsel for the Minister that the document annexed labelled "Statement of Comments" should be received as a submission.
The application sets out, as I said, 11 paragraphs of what are said to be grounds but are more in the nature of submissions. In that document the applicants say (or rather, the first applicant says):
(1) I am a citizen of the People's Republic of China. I applied for onshore protection visa after I came to Australia due to a well-founded fear of facing United Nation Convention for Refugee protection. My application was subsequently refused by the Department of Immigration. I then applied for review to the Refugee Review Tribunal. This review application was also refused by the Tribunal. My application was finally remitted back to the Refugee Review Tribunal by the Full Federal Court.
(2) During the hearing at the Federal Court I repeatedly explained that most of the contents of the claims in the original application to the Department of Immigration and the previous Tribunal were made up by my previous migration agent.
(3) After my matter was remitted to the Refugee Review Tribunal I engaged a new migration agent who had helped me with the assistance of a chairman of my church to present my claims with clarifications in full to the Tribunal. This Tribunal was constituted by the presiding member, Mr Luke Hardy.
(4) A hearing was held by the Tribunal on 11/10/2007. The hearing was assisted by an interpreter. Both my husband and I experienced problems with the interpreter during the course of answering questions from the Tribunal member. My migration [sic] raised his concerns several times by indicating to the Tribunal member but the member did not allow him to explain his concern.
(5) During the hearing I explained to the Tribunal the details of my claims of what had happened to me and my husband before for the protection visa. I also explained to the Tribunal about our fears of returning to China. I also explained to the Tribunal about why some of the claims in our original application were not true and correct. I explained all of these and provided the new evidence under oath.
(6) During the hearing Mr Hardy's manner and tone were very biased against us. He held the view that (we) were telling lies. This can be felt when the recording of the hearing is listened to. On numerous occasions Mr Hardy subjectively discredited and overturned our answers when these answers were not the same as those given during the previous Tribunal.
(7) During the hearing Mr Hardy accused my migration agent that he used gesture of head movements to articulate my husband when he was giving evidence.
(8) Mr Hardy also unliterally [sic] misinterpreted the evidence of my witness Mr Joshua Ng who is the chairman of my church. He wouldn't accept even the own interpreting and clarification of the meaning of the words by their own speaker, Mr Ng. This is an evidence that the member was for unknown reasons very biased and not fair in his dealing of by case.
(9) In my view, the Tribunal has been unduly influenced by the original decision and the decision of the previous Tribunal who was affected by the false materials contained in the original application despite our consistent submission that they are false details and were made up by our previous migration. The Tribunal has on numerous occasions throughout the hearing referred and quoted our answers given in the previous Tribunal and has thus formed bias against the correct answers I gave in response to its questions before, during and after the hearing held on 11/10/07. The Tribunal was also affected by the incorrect interpreting of my answers caused by the interpreter during the hearing on 11/10/07.
(10) The Tribunal thus failed to exercise its jurisdictional power to accord to me the natural justice in circumstances where the Tribunal had been biased and had applied the incorrect test of persecution for Convention purpose.
(11) The Tribunal subsequently failed to deal with my claims of the chance of losing freedom and likelihood of facing persecution if I return to China.
The statement of comments by the first applicant claimed that the manner of the Tribunal member was very hostile and the first applicant expressed the belief that the Tribunal member had inevitably been totally duly influenced by his frustration by an invented response for the rest of the hearing and his decision made on her application.
She complained of the member's suspicious, unfriendly and hostile manner, which made her and her husband feel even more nervous and threatened during the course of the hearing. She claimed that the member did not dispute the existence of the error in his decision and he also did not address their concerns in relation to this error in his decision.
The first applicant complained that the Tribunal member only focused on the different claims between her previous claims to the Department of Immigration and the previously constituted Tribunal, although she had clearly and explicitly explained the fact that there are a large number of errors and she said the Tribunal failed to identify each of the large number of errors as required is fundamental premise so that prejudice would not in way to hinder the process of a fair and just decision later on. She claimed that the large number of false claims in the original application to the department and to the previously constituted Tribunal had been fabricated by her previous adviser.
She claimed that she had provided a copy of a handwritten document purportedly written by the wife of her previous adviser. The Tribunal accepted that the earlier claims had been concocted, although it was not self-evident that the deception began with that lady.
The applicant accused the Tribunal to have been preoccupied with prejudice and bias against her by assuming what should have been done by the police in China. She said:
I do not believe anyone will know the correct answer except the police who were involved in the matter. Therefore, I could not give an answer as the member already had in his mind. However, as a matter of fact the member had already had a closed mind to reject any answer except the one he already assumed himself. Therefore, I would say that the current Tribunal did not carry out its duties as required by laws in a just and fair manner.
The applicant complained of questions put to her by the Tribunal and said that the Tribunal had failed to offer a fair and just chance to her. She claimed that the Tribunal had conspired with the Chinese government and other relevant authorities to persecute her by threat and adding chaotic confusion to her during the hearing. She went on to say that if the Tribunal held that attitude it could never exercise its course of duty in a just and fair manner as required by the laws in a country like Australia. The applicant referred to the funeral DVD and criticised the Tribunal for its conclusion that it was unconvinced on the evidence before it that the church to which her husband's family had belonged had existed both secretly and under the kind of pressure that the alleged February 2004 incident was claimed to have introduced. She indicated that the Tribunal failed to clarify its unclear mind by asking further questions and indicated that the DVD could be produced if the Court requires it.
The first applicant went on to say that her husband never had his own personal claim in her application. She said the previous Tribunal had acknowledged that he was a reticent witness and her husband also admitted that he had not experienced any personal problems as a result of the association with the underground church. She then went on to explain why it was that her husband did not like to talk, that he had a problem of talking and to answer questions. She said:
My husband knew that he could not tell what had happened because of his personal weakness in speech and memory. His positions maintain the same in my current review application. However, the current Tribunal continued to ask him questions of which he had faithfully tried his best to answer. However, due to the quality of the interpreter, the answers were sometimes omitted and sometimes split during translation. The Tribunal used a large percentage of his answers to dispute the answers that I had given quoting the discrepancies in our respective answer. I regard that the Tribunal failed to act fairly and justly in its duties as required by the laws. The Tribunal did not ask if my husband would like to answer questions, though I had never indicated my husband to give oral evidence. The Tribunal abused its power because my husband did not know his legal right to refuse to answer if he had any before the Tribunal. He was not explained his rights by the Tribunal before it asked him questions. His presence at the Tribunal was purely to support me.
The first applicant also complained that the Tribunal member accused her current migration agent of doing something to influence her husband to answer the Tribunal's questions. Those were the submissions that appeared in the first applicant's statement of comments.
At the hearing the first applicant reiterated that she felt that the Tribunal member was biased against us, particularly because of a word "control" used by the interpreter. She said that she did not mention that word at all and she reiterated her concern that what was translated by the interpreter really affected the Tribunal member's decision.
She claimed that she was not fairly treated. In reply to submissions from counsel for the Minister the first applicant spoke of the DVD issue and her claim that registered churches in China have no true freedom, but reiterated that the interpreter had wrongly interpreted what she had to say.
These grounds and submissions do, in my view, make out first, a claim of bias or apprehended bias and second, a claim that the applicants did not receive a fair hearing because of the interpretation problems. Counsel for the Minister, Ms Clegg, submitted that in relation to apprehended violence the test is whether a fair-minded lay observer would apprehend bias on the part of the Tribunal. This requires something more than merely disagreeing with the Tribunal's factual findings or manner of analysis. I was referred to Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka.[6] I was also referred to Re Refugee Review Tribunal; ex parte H[7] and also NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs.[8]
[6] (2001) 179 ALR 296 at [15], [53]-[65] and [89]-[95]
[7] (2001) 179 ALR 425 at [31]
[8] (2004) 214 ALR 264 at [21]
It was submitted that whilst the Tribunal opined that the applicants had openly admitted to misleading the previously constituted Tribunal, it was open to the Tribunal in the matter before this Court to observe that it was reasonable in the circumstances to attribute a high degree of responsibility to the applicants for the deceptive and misleading evidence they had earlier presented to the Tribunal.
However, Ms Clegg submitted that it was clear that the Tribunal considered the applicants' new claims at face value. In doing so the Tribunal acknowledged that some aspects of the evidence had been largely consistent and the Tribunal apparently assessed those claims without being influenced by the falsity of the previous claims. In any event, it was submitted that the Tribunal was entitled to take into account all of the conduct of the applicants during the course of the review. Thus, to the extent that the Tribunal was in some way influenced by the falsity of the previous claims, it would have been open to the Tribunal to be so influenced. Thus, it was submitted no jurisdictional error was demonstrated.
As to the interpretation problems, Ms Clegg submitted that the applicants' migration agent had provided a response to the s.424A letter sent by the Tribunal together with a copy of a purported transcript of the oral hearing on 11th October 2007. The Tribunal considered that response and considered the transcript of the hearing.
Indeed, Ms Clegg pointed out that the Tribunal did address the concerns of the applicants about the alleged errors and omissions by the interpreter at the hearing. Those concerns were set out in the Tribunal decision at pages 453 through to 456 of the Court Book.
The Tribunal noted that it had some concerns about the transcript, but it referred to a number of issues and accepted any errors and misunderstandings that had occurred. The Tribunal said:
Elsewhere the transcript shows that there was a misunderstanding as to whether the Tribunal referred to meetings plural continued after the February 2004 raid or whether the Tribunal was referring to an individual meeting continuing that day. The Tribunal has taken this misunderstanding into account and draws no inferences of inconsistency from the applicants' responses.[9]
[9] Court Book page 454
The Tribunal then referred to evidence as to the name of the family church and about its links being vague, which the interpreter translated a false. The Tribunal said:
The Tribunal has noted the difficulty this may have caused.[10]
[10] Ibid
It is submitted that the applicants by forwarding in writing a transcript together with their complaints about the failure of interpreting and the actions of the Tribunal in sorting through errors of admissions was an appropriate response by the Tribunal. I was referred to the comments of Kenny J in Perera v Minister for Immigration & Multicultural Affairs[11]. Counsel for the Minister submitted that if interpretation errors are made, then they are able to be rectified. It is submitted that it was open to the Tribunal to take that approach. I was also referred to a decision of my own in SZGWN & Anor v Minister for Immigration & Anor[12]. However, that decision was subsequently reversed on appeal (SZGWN and SZGWO v Minister for Immigration & Citizenship[13]) and, for that reason, I made the decision to reopen the matter and hear further submissions.
[11] (1999) 92 FCR 6 at [37]
[12] [2007] FMCA 1748
[13] [2008] FCA 238
I was also referred by counsel for the first respondent to the decision of Appellant P119 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[14] where the Full Federal Court noted that the standard of interpretation can be so deficient that it may amount to having no hearing at all. However, a perfect translation or interpretation is not necessary because interpretation is not merely a mechanical exercise. It is sufficient that the translation is sufficiently accurate so as to convey the idea or concept being communicated (see WACO v Minister for Immigration & Multicultural & Indigenous Affairs).[15]
[14] [2003] FCAFC 230 at [17]
[15] [2003] FCAFC 171 at [66]
Whilst it was conceded that there were some examples of imperfect interpretation of the oral hearing, it was submitted that those examples were not serious and that in almost all cases the idea or meaning of the Tribunal's questions was more than adequately conveyed to the applicants. Imperfect translations and interpretations occur in courts and Tribunals every day and are not a source of jurisdictional error (again see Appellant P199 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs).[16]
[16] [2003] FCAFC 230 per Mansfield and Selway JJ at [19] – [20]
The Minister’s counsel also raised the question of the second applicant being a part D applicant saying:
The Minister notes that the Tribunal considered the claims of the applicants as if each of them was claiming to be entitled to a protection visa in their own right. In other words, the husband's claims were considered as if he was a person who had applied for refugee status in his own right even though he had been a part D applicant.
I was referred to the decision of Nicholls FM in SZLGF v Minister for Immigration & Citizenship[17] and a decision of mine in SZJKO v Minister for Immigration & Citizenship.[18] In each case this Court had held that such an approach amounted to jurisdictional error, although relief in those cases was refused on the ground of futility. It was put to me, however, that in SZGME v Minister for Immigration & Citizenship[19] the Full Court of the Federal Court has held otherwise. The particular references are at [73] and [85] – [94]. It was held there that the appellant mother had made a valid protection visa application as a member of the family unit of her daughter on the basis that there had been substantial compliance with the relevant form, taking into account the purpose of the form. Black CJ and Allsop J held that a person is an applicant for a protection visa even if they apply as a family member, and as there was a valid application by the mother as a family member there was nothing stopping her from changing the basis of her claim from that of a mere family member to having her own claim to refugee status during the Tribunal review process. In other words, the decision under review was not confined to the original basis on which the appellant mother claimed to be entitled to the grant of a protection visa. The Court held that in such circumstances the Tribunal has both the authority and obligation to consider an applicant's claims as an applicant in his or her own right rather than simply as a member of a family unit and to make a decision to either grant or refuse the protection visa.
[17] [2008] FMCA 258 at [78] – [85]
[18] [2008] FMCA 370 at [80] – [83]
[19] [2007] FCAFC 91
Further Submissions
At the hearing of this matter on 22nd July 2008 counsel for the Minister had relied on my earlier decision in SZGWN & Anor v Minister for Immigration & Anor[20]. However, on 24 July 2008 the decision in SZGWN and SZGWO v Minister for Immigration & Citizenship[21] was handed down, allowing the appeal. It was for that reason that I decided to hear further submissions from the parties.
[20] supra
[21] supra
The first applicant has provided a two-page submission headed Further Statement of Comments. She has continued to assert her claim that the Tribunal Member was biased and displayed an actual bias at the hearing.
The first applicant submitted:
I do not mean to say that the tribunal member needed to like the applicants or needed to show sympathy to the protection visa applicants. What I did not expect from the Australian authorities, and the tribunal was one of them, was not further threat or an insult of the basic dignity because I did not intend to invite abuse or humiliation or further discrimination by lodging a review protection. At the same time I expect to be accorded with a ‘fair go’ review process within the laws of Australia.
On the country, by the behaviour of the tribunal member, the tribunal showed discrimination against me and my husband.
The first applicant submitted that she and her husband were not given a fair hearing by the Tribunal:
…because of the member’s totally biased and unjust attitude towards me and my husband.
We believe that the tribunal member has failed to carry out its judicial duties during the hearing and subsequent assessment of my claims. This is evidenced in his using of sarcastic words to humiliate us.
The first applicant then referred to two passages in the transcript of the hearing contained in the Court Book as evidence of the Tribunal Member’s attitude.
The first passage is at page 372 of the Court Book:
M:[22] It doesn’t sound police are very interested.
I:[23]It sounds that police are not very interested in you[24]
G:[25]Praise to lord, really, our Lord had sympathised us a lot. We, our Lord also knows that we were spreading his words and gospel, and to give testimony. He all along has taken care and protected us, to keep us from being harassed and disturbed by them amongst us.
I: Thanks to God, God was blessing us as we were, blessing us, hm, free from the disturbance and harassment of police.
M: Well, in that scenario, he might continue to do it.
[22] Tribunal member
[23] Interpreter
[24] Words underlined are spoken in Mandarin
[25] First applicant
I: Sorry.
M: If that is, if you are so sure that God is doing that, he might continue to do it when you go back home.[26]
[26] Court Book 372
The first applicant referred to a further passage:
M: You said that there was a, I looked back on them, your adviser made a subtle turn of his head towards you, I questioned what you said and you changed your evidence.
I: I asked you this, and then you changed your evidence
M: Stop writing and look up.
I: Sorry.
M: Your adviser stopped writing and looked up at you.
I: Your, this
M: In any event, you changed your evidence at that point.
I: And then, at that point of time, you changed your evidence.[27]
[27] Court Book 394-395
The first applicant also referred to the transcript from pages 349 to 427, claiming that they showed a lot of interpreting discrepancies. These discrepancies, she claimed, would have influenced the mind of the Tribunal member.
The first applicant concluded her submission by saying:
Although the transcript cannot broadcast the tone of the tribunal member during the time of questioning, we sincerely submit that both my husband and I were scared of his attitude and sarcastic tone, especially my husband. We also believe that no one with that attitude can maintain an absolute fair and just manner to look at any thing.
Counsel for the Minister submitted that there is nothing in SZGWN[28] that alters the well established principles in relation to s 425 and translation errors, nor is there anything that alters the principles in relation to apprehended bias. She also put that the applicants’ further submission did not add in any substantial way to the case that had already been argued at the previous hearing. The details of interpreting errors were not developed in any way to take matters further.
[28] [2008] FCA 238
Ms Clegg submitted it is not sufficient for an applicant to establish that the Tribunal Member has been mocking, rude or sarcastic. A Tribunal Member is entitled to assertively test an applicant’s claims, particularly in circumstances where an applicant’s credibility is in issue.
It was further submitted that, whilst there may be some examples of imperfect interpretation at the oral hearing, none of those examples were in and of themselves serious, nor is it evident that there were a sufficient number of interpretation errors so to permeate the entire hearing process to the point where it could be suggested that the applicants did not receive a hearing at all.
Imperfect translations and interpretations occur in Courts and Tribunals every day and are not a source of jurisdictional error in the ordinary course of events (see Appellant P119 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[29] at [19]-[20]).
[29] [2003] FCAFC 230
Conclusions
It was put to me that SZGME v Minister for Immigration & Citizenship (supra) is binding on this Court. I will deal with that issue first. It is certainly true that SZGME v Minister for Immigration & Citizenship is binding on this Court. It is a decision of the Full Court of the Federal Court on appeal from this Court. In my view, with the greatest of respect, the matter before me can be distinguished on the facts.
In SZGME the mother referred to had not completed either a part C or a part D form. The application was incomplete, although it was argued that the mother wished to make her own claims for refugee status in her own right. That is not the case here. It has always been the case that the second applicant, the husband, was a part D applicant. He had completed the appropriate form, namely a part D, indicating that he was making a claim as a member of the family of the first applicant. The first applicant herself, who it will be recalled, addressed the Court, as she said, with the authority of her husband, had said:
My husband never had his own personal claim in my application.
The fact situation here is quite different from the facts that were before me in SZJKO v Minister for Immigration & Citizenship (supra) where the second applicant, notwithstanding the fact that she had made a claim as a part D applicant, sought to bring her own claims at the Tribunal hearing and at the hearing before this Court. I note that no appeal appears to have been lodged in respect of SZJKO v Minister for Immigration & Citizenship. I am of a view that there is a sufficient difference in the facts for me to distinguish SZGME from the case that is before me.
In any event, with respect, nothing turns on the fact. It was always open to the second applicant to give evidence in the Tribunal hearing. It appears that the Tribunal member took some cognisance of the fact that the second applicant was not much of a church attender, but nothing of any significance flows from that. The Tribunal decision was always based on the fact that the first applicant was the primary applicant and I am not of a view that jurisdictional error on the part of the Tribunal has been made out in respect of that aspect.
Turning now to the two grounds that do emerge from the applicants' claims, the first one is a claim of bias, either actual or apprehended. Bias, being an allegation of a lack of good faith, is a serious allegation and must be strictly alleged and strictly proved (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs).[30] It is certainly the case that the Tribunal member asked the applicants a number of questions and was somewhat sceptical of their evidence. It should be remembered, however, that the applicants were before the Tribunal originally because the Tribunal had considered the material before it and was not satisfied that it was able to make a decision in their favour based on that material alone. That was why the applicants were invited to attend a hearing. It was open to the Tribunal in the decision under review to consider the evidence given to the previously constituted Tribunal. That is not of itself a reason for finding bias. The Tribunal, in my view, did accept that, notwithstanding the misleading claims in which it considered that the applicants themselves were not without fault, the applicants:
though having achieved an appreciable degree of consistency in their more recent claims.[31]
were still not witnesses of truth.
[30] [2002] FCAFC 358
[31] See Court Book page 461.
The Tribunal, in my view, considered the applicants' claims at face value even though it somewhat grudgingly accepted the consistency of some of their evidence. It is not evidence of bias that the Tribunal found that the applicants had openly admitted to misleading the previously constituted Tribunal. A disagreement with a Tribunal's factual findings is not of itself evidence of bias. Whilst the applicants have expressed criticism of the conduct of the Tribunal and it may well be from the transcript that the hearing was conducted in a somewhat robust manner, that does not necessarily amount to bias.
In SZGWN, Gilmour J considered the question of apprehension of bias. It is a serious allegation “involving personal fault on the part of the decision maker.”(SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[32]at [43]). His Honour said:
Apprehension of bias is founded on the notion that justice should not only be done, but it should be seen to be done: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345. The test to be satisfied is ‘whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision’: NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [14].[33]
[32] [2002] FCAFC 361
[33] SZGWN at [47]
His Honour went on to point out that proceedings before a Tribunal are inquisitorial in nature and a Tribunal Member’s role in conducting a review is to “get any information that it considers relevant” (Migration Act, s 424(1)). The test of whether a fair minded lay observer would apprehend bias on the part of the Tribunal requires more than a feeling that conventions of discretion and prudence have been breached. Cases where apprehended bias have been established where there have been:
· Constant interruptions and challenges to an applicant’s evidence
· A hostile attitude, inappropriate tone or hectoring
· A failure to acknowledge mistakes
· An aggressive, unfair style of questioning
· Conduct amounting to intimidation
· Unreasoned conclusions bereft of expressed supporting thought processes or any rational foundation
· Brevity of reasoning where more reasoning is demanded[34]
[34] SZGWN at [49]-[50]
In this case, it is clear that the Tribunal Member asked a lot of questions. The applicant has complained of an incident referred to at pages 394 and 395 of the Court Book where the Tribunal Member accused the applicants’ adviser of “coaching” the first applicant by subtly turning his head and looking at her, whereupon he claimed that she changed her evidence. The applicants have taken exception to those comments, but it is necessary for a Tribunal Member to ascertain whether or not a witness is telling the truth.
The first applicant has also complained about a remark that the Tribunal Member is recorded as making at page 372 of the transcript:
If that is, if you are so sure that God is doing that, he might continue to do it when you go back home.
This is certainly a flippant comment and unhelpful, and the first applicant may well have regarded it as a mocking or sarcastic thing to say. Considered in isolation, the remark is not so serious as to constitute evidence that would go to an apprehension of bias. There are no other instances to which the applicants have brought the Court’s attention in the transcript of the hearing.
That said, the Tribunal Member would do well to remember that gratuitously sarcastic comments do not assist the proceedings and would be better left unsaid, as they can lead to complaints of bias, as in this present case.
I am not of the view that the claim of bias has been made out and this ground fails.
The applicants have claimed an imperfection in the standard of interpreting in this case. They have not, however, set out any significant deficiency which so affected the process of the hearing that they were not given a fair hearing under s.425.
They did through their migration agent, quite properly; bring deficiencies in interpretation to the attention of the Tribunal by the post-hearing submission in reply to the s.424A letter. In some cases, that may not be sufficient. As Gilmour J stated in SZGWN at [30], the decision in Perera v Minister for Immigration and Multicultural Affairs[35] does not stand for the proposition that errors in interpreting can be rectified:
Nonetheless, I would accept that in certain circumstances errors of that kind may be rectified. This could be done by written submissions to the Tribunal after the hearing…It could also be done by the provision of a corrected transcript accepted by the Tribunal as accurate…Such errors however cannot always be rectified in this way and a further oral hearing at which an applicant gives evidence may be necessary. I twill at least depend on the nature and extent of the errors.[36]
[35] (1999) 92 FCR 6
[36] SZGWN at [30]
In this case, the applicants did provide a transcript of the hearing and drew the tribunal’s attention to what they regarded as errors and omissions in translation by the interpreter, and the tribunal stated that it had considered them.[37] It is true that the Tribunal expressed some reservations about the transcript because it had been prepared by the applicants’ migration adviser and because it contained some errors as to what the Tribunal Member actually said, which, of course, was in English. Nevertheless, the Tribunal was in possession of a corrected transcript and the tribunal gave consideration to its contents.
[37] Court Book 454
I am not of a view that the applicants have shown any significant failings in interpreting that would have affected the decision and I am of the view that the applicants quite properly brought deficiencies in interpreting to the attention of the Tribunal member who has acknowledged them. It follows then that the applicants were not deprived of the opportunity of a fair hearing under s.425 and no jurisdictional error is demonstrated on that point. In my view, no jurisdictional error has been made out.
I am mindful of the fact that the applicants were not legally represented and of course only one applicant attended court. I am unable to discern any other arguable case for jurisdictional error and, in my view, the Tribunal decision is a privative clause decision unaffected by jurisdictional error. As such, it is final and conclusive and remedies in the nature of certiorari, mandamus, declaration, injunction or prohibition do not lie (see s.474(1) of the Migration Act). It follows, therefore, that the application will be dismissed with costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman
Date: 17 December 2008
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