SZGSZ v Minister for Immigration

[2007] FMCA 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2009

MIGRATION – Review of Refugee Review Tribunal decision – no failure to comply with s.424A – evidence and material given to the Tribunal by the applicant – information contained in photographs is not “information” for the purposes of s.424A – Tribunal did not misunderstand claims – no evidence that level of interpretation at the hearing was inadequate – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870
SZBQT v Minister for Immigration and Citizenship [2007] FCA 547
SZCNG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 505
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; (2006) FCR 291
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1

Applicant: SZGSZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 316 of 2007

Judgment of: Nicholls FM

Hearing date: 1 August 2007

Date of Last Submission: 1 August 2007

Delivered at: Sydney

Delivered on: 7 December 2007

REPRESENTATION

Appearance for the Applicant: Mr F Varess

Solicitors for the Applicant: Craddock Murray Neumann Lawyers

Appearance for the Respondents: Mr P Reynolds

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 1 February 2007, and amended on 1 August 2007, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $8,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 316 of 2007

SZGSZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) filed on 1 February 2007, and amended on 1 August 2007, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 14 December 2006 and handed down on 9 January 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 28 March 1998, and in April 2005 applied for a protection visa. This application was refused on 30 June 2005.

2. The following chronology (with reference to the bundle of relevant documents (the Court Book (“CB”)) filed by the first respondent in this matter) is of assistance in understanding the applicant’s complaints and consideration by the Court:

   1)6 May 2005: application for review (CB 90 to CB 93)

   2)23 May 2005: applicant invited to hearing before the Tribunal (CB 101)

   3)2 June 2005: applicant attended hearing (CB 133).

   4)5 June 2006: Tribunal decision remitted by consent orders made by Federal Magistrates Court (CB 173).

   5)25 July 2006 and 31 July 2006: applicant invited to hearing (CB 180 to CB 181 and CB 183).

   6)1 August 2006: response to hearing invitation (CB 184).

   7)29 August 2006: applicant attended hearing with new advisor before differently constituted Tribunal (CB 197).

   8)31 August 2006: the Tribunal sent a letter pursuant to s.424 seeking further information from the applicant (CB 200 to CB 201).  The information sought included the applicant’s comments on the Tribunal’s account of what occurred at the “first” hearing (CB 202 to CB 205).

   9)31 August 2006: Tribunal sent s. 424A letter (“the first s.424A letter”) (CB 207).

   10)5 September 2006: Tribunal sent s.424A letter (“the second s.424A letter”) (CB 219 to CB 225) (dealing with, amongst other things, “the interpreter issue”).

   11)20 September 2006: applicant attended resumed from 29 August 2006 hearing before Tribunal (CB 269).

   12)27 September 2006: applicant’s responses to Tribunal’s letters (see CB 306 and following).

   13)14 December 2006: Tribunal signed decision record (reproduced at CB 355 to CB 390).

The applicant’s claims to protection

1. Ultimately before the Tribunal the applicant’s claims to refugee protection were based on his claimed violation of China’s one-child policy, and his fears of persecution because of this, and because of his Catholic faith.

The Tribunal

1. The Tribunal found:

   1)The applicant’s conduct in relation to his claims to have difficulties with interpretation at the hearing conducted with the Tribunal, and his conduct at the hearing, “cast grave doubts on the veracity of his refugee claims and his credibility generally” (CB 380.2).

   2)In relation to his refugee claims, the applicant did not have a genuine fear of persecution in China at any time before his (immigration) detention in Australia in 2005, and that his protection visa application was lodged solely as a means of prolonging his stay in Australia after having been located and detained by the first respondent (CB 381.8).

   3)In any event, the applicant’s claims of past religious involvement in China were fabricated, and it rejected the claims of past associated harm because of this (CB 383.3).

   4)In relation to the applicant’s claims of involvement in Christian churches since his detention in Australia in 2005, that the applicant’s claimed Catholicism was not genuine and the Tribunal was not satisfied that his associated conduct was engaged in otherwise than to strengthen his refugee claims, and disregarded this conduct pursuant to s.91R(3) (CB 383.7).

   5)While the Tribunal had some difficulty with the applicant’s claims relating to his claimed breached of the one-child policy (CB 383.9), it nonetheless accepted the claim that he had three children, but did not accept the applicant’s claim that the children were “unregistered” in China (CB 384.2). Further, that the applicant’s claim that he was fined RMB 100,000, and that this fine remained unpaid, was rejected as a fabrication (CB 387.1).

   6)It did not accept that there were other adverse consequences for the applicant after the birth of his third child (CB 387.5), and did not accept that there was a real chance that the applicant would be subject to forced sterilisation, or that his claimed opposition to the one-child policy was such that he had a political opinion in regard to this issue that could influence his future conduct if he were to return to China (CB 387.8). Nor did the Tribunal accept that the absence of a current household registration was suggestive of past harm, or of prospective problems in resuming his registration if he were to return to China (CB 388.1).

   7)The Tribunal found that in relation to the applicant’s ethnic Vietnamese origins, there was nothing to indicate that these origins would give rise to any fears of persecution for this reason if he were to return to China.

   8)Nor did the Tribunal accept submissions made on the applicant’s behalf by his advisor that since being taken into immigration detention and being “forced” to obtain a travel document, that the applicant’s fears in this regard, even if genuine, were well-founded (CB 388.5).

   In all, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention, and it affirmed the delegate’s decision not to grant a protection visa to him.

Application to the Court

1. At the hearing before the Court, Mr F Varess appeared for the applicant, and Mr P Reynolds appeared for the first respondent. Mr Varess was granted leave to file in Court an amended application. The Court has before it the applicant’s outline of submissions in relation to this application, and the first respondent’s written submissions. In addition to the Court Book, the Court also has before it four affidavits which were the subject of objections by Mr Reynolds but admitted provisionally by the Court:

   1)The affidavit of Maggie Yaying Chen, an accredited interpreter, of 15 May 2007, annexing a transcript of the hearing conducted before the Tribunal on 2 June 2005.

   2)The affidavit of the applicant of 15 May 2007.

   3)The affidavit of Chin Chiang Liang of 15 May 2007.

   4)The affidavit of Sarah Bess Wooster, a secretary in the employ of the applicant’s solicitors, of 15 May 2007, annexing partial transcripts of the hearings of 29 August 2006 and 20 September 2006.

2. The amended application contains four grounds of review:

   “1.The Tribunal Decision was infected by jurisdictional error because the quality of the interpretation before the Tribunal of the Applicant’s evidence given pursuant to section 425 of the Act was inadequate thereby effectively preventing the Applicant from having a real opportunity to present his case.

   2.The Tribunal misconstrued the ambit of the term persecution in the Convention (that is, the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees) and subsection 91R(2) of the Act in failing to appreciate that harm principally inflicted upon the Applicant’s wife could also constitute persecution to him.

   3.The Tribunal made a jurisdictional error by failing to comply with its obligations under s 424A of the Act in relation to:

   I.the oral evidence given by Chin Chiang LIANG (‘Chin Information’);

   II.the photographs provided to the First Respondent’s (‘Minister’) Department and/or the Tribunal;

   IIIletters written by Sr Mary E. Britt OP; Reverend Conway Ku; and Reverend Chi Binh Trinh (‘Religious Information’)

   IV.the Applicant’s travel document (‘Travel Document Information’);

   V.the Applicant’s household registration booklet (‘Household Registration Information’);

   VI.a letter from the Chinese authorities in Pingshan saying that the Applicant has ‘disappeared’ (‘Disappearance Information’); or

   VII.Information that the Applicant’s Tourist Visa was Extended Twice.

   4.  The Tribunal failed to properly exercise its jurisdiction by either misunderstanding or failing to consider and making findings on claims by the Applicant and/or evidence before the Tribunal, which, if accepted, could have led to a favourable decision in the visa application.  In particular the Tribunal failed to adequately take into account:

   I.a claim that his former adviser, Ms Di Giglio, and he had identified problems with the interpreter engaged by the Tribunal for the 2 June 2005 hearing and/or more generally with Cantonese interpreters – as well as evidence before the Tribunal in this regard; and

   II.a claim that he did not state at the 2 June 2005 Tribunal hearing that his children were (or his second child was) registered – as well as evidence before the Tribunal in this regard.”

3. The applicant’s written submissions were directed to grounds three and four. Mr Varess advised the Court that he was not pressing ground two, but continued to press ground one (noting the link between part of ground four and ground one). For ease of understanding it is preferable to deal with the applicant’s grounds as argued before the Court at the hearing.

Ground Three in the Amended Application – Breach of s.424A

1. This ground complains that the Tribunal failed to comply with its obligations pursuant to s.424A of the Act in relation to seven pieces of information. Mr Varess acknowledged that the Tribunal sent two letters pursuant to s.424A, but submitted that the information set out in the particulars to ground three was not the subject of, nor was it included in, those letters. The applicant generally relies on what the High Court majority said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”).

Section 424A – “the Chin information”

1. As set out above, the applicant attended a hearing on three occasions before the Tribunal. The first was before the earlier constituted Tribunal, and then on two occasions (29 August 2006 and 20 September 2006) before the Tribunal constituted by the member who made the decision currently before the Court.  It is not quite clear from written submissions whether there were one or two parts to what Mr Varess described as the “Chin information” (see paragraphs 38, 46 and 47 of the written submissions). At the hearing before the Court, the “Chin information” was clarified as referring to a conversation which is said to have occurred between Mr Chin Chiang Liang and an officer of the Tribunal, just prior to the commencement of the hearing on 20 September 2006 (see the affidavits of Chin Chiang Liang, and of the applicant, made on 15 May 2007).

2. In responding to the Tribunal’s invitation to the hearing (relevant to this occasion) the applicant indicated that he did not want the Tribunal to take oral evidence from any witnesses and, although he indicated that he wished to bring someone else with him to the hearing as a friend, this person was not Mr Chin Chiang Liang (see CB 184). Nonetheless, when the applicant attended on the second occasion before the currently constituted Tribunal on 20 September 2006, he was accompanied by Mr Chin Chiang Liang and the evidence before the Court, taken from the two affidavits referred to above, is that a certain conversation ensued prior to the commencement of that hearing. The evidence is that Mr Chin Chiang Liang told a Tribunal employee that he was a “friend” who had attended to observe the hearing. This is consistent with what is set out in the Tribunal’s hearing record report reproduced at CB 269. During the course of the hearing, Mr Varess, the applicant’s advisor, sought that the Tribunal take evidence from Mr Chin Chiang Liang. (See the Tribunal’s decision record at CB 372.5, and pages 7 and 8 of annexure “B” to the affidavit of Sarah Bess Wooster.)

3. Mr Chin Chiang Liang gave evidence to the Tribunal (see CB 372.6):

   “[T]he observer/witness said that he shared a house with the applicant and wished to confirm that he attended church each Saturday and Sunday.”

   (See also pages 8 to 10 of annexure “B” to the affidavit of Ms Wooster).

4. Mr Varess submitted that the information given by Chin Chiang Liang that he had attended the hearing as an observer was information given to the Tribunal officer just prior to the hearing, and was not information provided by the applicant himself to the Tribunal. That is, that Mr Chin Chiang Liang was present as an observer. (In this regard, see the affidavit of Maggie Chen, the affidavit of Chin Chiang Liang and the affidavit of Ms Wooster. See also CB 269 to CB 271.)

5. The applicant’s complaint is that the Tribunal relied on the information provided by Mr Chin (and not the applicant), who was present at the hearing as an observer, to subsequently reject the applicant’s claimed involvement in Christian churches in Australia since his detention by the first respondent in 2005. Mr Varess referred the Court, both as set out at paragraph 41 of written submissions, and during the course of the hearing before the Court, to the following extract from the Tribunal’s decision record:

   “‘The Tribunal now considers the applicant’s involvement in Christian churches since his DIMA detention in 2005 ... the Tribunal places little weight on the evidence of his witness, with whom the applicant shares accommodation, as to the nature of the applicant’s involvement, given the applicant’s evasive evidence about his relationship with an knowledge of that person and the unusual circumstances in which that person, initially presenting at hearing as an observer, then asked to provide evidence as a witness’. (emphasis added).”

   (Footnote references omitted; see CB 383.3)

6. I note that that part of the Tribunal’s decision record relied on by the applicant reads in full:

   “The Tribunal now considers the applicant’s involvement in Christian churches since his DIMA detention in 2005.  It accepts the applicant’s oral evidence and that of his witness, together with the statements of Sr Mary Britt Rev Conway Ku and Rev Chi Binh Trinh, that the applicant has been involved in church activities.  In doing so, the Tribunal places little weight on the evidence of his witness, with whom the applicant shares accommodation, as to the nature of the applicant’s involvement, given the applicant’s evasive evidence about his relationship with and knowledge of that person and the unusual circumstances in which that person, initially presenting at hearing as an observer, then asked to provide evidence as a witness.”

7. In SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) the High Court provided guidance on the circumstances in which s.424A is engaged, noting that the Tribunal’s obligation: “is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’” (SZBYR at [15]). At [22] the High Court stated that the word “reason” in s.424A(1) must be properly understood as set out in that case, and that s.424A had a “limited scope.”

8. I agree with submissions made for the first respondent that in the current case the Tribunal’s reason for affirming the delegate’s decision which was the subject of review was that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention. In light of what the High Court relevantly said at [17] in SZBYR, and when the obligation in s.424A(1) is understood in the context of what was explained by the High Court in SZBYR, then the information said to have been initially provided by Mr Chin Chiang Liang that he was attending the hearing as an observer, does not contain within its terms a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations (SZBYR at [17]). The applicant’s complaint in this regard does not succeed for this reason.

9. But I also agree with Mr Reynolds’ submissions that, in any event (even if the court were to “unbundle” the Tribunal’s reasons (SZBYR at [22])), the Tribunal’s noting of Mr Chin Chiang Liang as having appeared initially as an observer is not used to undermine the applicant’s claims.

10. The Tribunal clearly accepted the applicant’s evidence that since his detention by the first respondent in 2005, he had been involved in church activities in Australia. This was consistent with the statements provided by the three persons who provided written statements on the applicant’s behalf (see CB 165, CB 166 and CB 324). The Tribunal also said that it accepted the evidence of the witness, that is, Mr Chin Chiang Liang. But that it placed little weight on the witness’s evidence for a number of reasons which it gives, including that he initially presented at the hearing as an observer, and then was asked to provide evidence as a witness.

11. Mr Varess submitted that these written statements provided in support of the applicant’s claims did not assert that the applicant attended church every Saturday and Sunday since his detention in 2005. Mr Chin Chiang Liang’s evidence as reported by the Tribunal at CB 372.6, was that the witness shared a house with the applicant, and he wished to confirm that the applicant attended church each Saturday and Sunday. This is consistent with what is set out in the partial transcript of the hearing before the Tribunal at annexure “B” to the affidavit of Ms Wooster (see page 9 of the annexure).

1. The Tribunal, as it stated, did not reject the evidence of the witness, in fact it said that it accepted it, but placed little weight on it. Ultimately, the Tribunal understood the applicant’s claim, and that of his supporters, to be that he was involved in Christian churches since his detention by the first respondent in 2005, but it found that his involvement in these churches (whatever the detail) arose as a direct result of his detention and was not “underpinned by any previous interest in Christianity.” For reasons which it continued to give at CB 383, the Tribunal ultimately disregarded this conduct pursuant to s.91R(3). This was based on what the applicant himself said at the hearing (in part in the context of what was said in support by his three supporters). But it was the applicant’s “piecemeal and hesitant” evidence and his “scripted account of the importance to him of his Christian faith” that led it to its finding in relation to s.91R(3) (CB 383.7). That the witness had first appeared at the hearing as an observer was not in that sense a part of this finding.

2. Ultimately however, this particular does not succeed in supporting this ground of the amended application based on what is set out above in relation to the understanding of the scope of s.424A provided in SZBYR.

The “photograph information”

1. The applicant’s second particular in support of the s.424A ground, is that on 22 April 2005 the applicant, through his former adviser, had provided, amongst other things, eight photographs of the applicant’s home “in a state of disrepair,” and that the applicant’s current adviser, on 27 September 2006, had provided two photographs of the applicant’s “ancestral home in a state of disrepair.” He submits that these two photographs appear to be different to the photographs which had been submitted earlier to the Minister’s Department.

2. The applicant complains that the Tribunal relied on this “photograph information” and that this can be seen at CB 387.5 where the Tribunal said:

   “The Tribunal does not accept that there were any other adverse consequences after the third birth. … The Tribunal has examined the photographs of the family home, supposedly taken after the authorities made it unhabitable.  It is evidently a structure in need of repair or maintenance, and may well be in the process of renovation at the time of the photograph.  In the Tribunal’s view, however, it is not a building that anyone competent has sought to destroy, as claimed.”

3. In short, the applicant’s complaint is that the photograph information provided to the first respondent’s Department (the eight photographs) was information on which the tribunal relied and was the reason, or part of the reason, for affirming the decision under review. That this information had been submitted to the first respondent’s Department, and not the Tribunal, and as such it fell within the obligation set out in s.424A(1), and was not exempted from that obligation by the operation of s.424A(3)(b).

4. The applicant also separately submits that to the extent that the Tribunal relied on the two photos (see CB 325) provided by the adviser to the Tribunal, that this also constituted a breach of s.424A.

5. In my view, the complete answer to the applicant’s complaint in relation to all eight photos, with reference to SZBYR at [17], is that the “information” represented visually by way of the photographs was not in itself images, or were properly “information” adverse to the applicant.

6. Indeed, with respect to their Honours to paraphrase what was said at [17] in SZBYR if the images portrayed by way of the photographs “were believed” in the way that the applicant had submitted, then “they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.” That the Tribunal subsequently took a view that the building depicted in the photographs was not a building that anyone competent had sought to destroy, is not itself “information” for the purposes of s.424A (see SZBYR at [18], and the reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”), per Finn and Stone JJ at [24]).

7. I also note further and in any event that in my view on a reading of the Tribunal’s decision record (and with reference to the extract relied on by the applicant at CB 387.5) the Tribunal, in referring to its examination of the photographs of the family home, was not referring to the eight photographs given to the first respondent’s Department, but was referring to the two photographs provided by the applicant’s adviser to the Tribunal.

8. The Tribunal noted that it had listened to the audio recording of the hearing conducted by the earlier constituted Tribunal (CB 362.2), and that at the hearing before the earlier constituted Tribunal (in the summary text set out by the Tribunal) the earlier constituted Tribunal made reference to “the ancestral house – the house in the photos” (CB 363.6). In context, plainly this referred to the eight photographs.

9. However, the Tribunal’s reference to the photographs of the family home in its analysis at CB 387.5 (the extract relied on now by the applicant), in my view, is a reference to “the two photographs of the family house” which the Tribunal discussed with the applicant at the hearing on 20 September 2006 and which, in context, were plainly the two photographs provided by the adviser (Mr Varess) to the Tribunal.

10. The Tribunal reported what occurred at that hearing and its observations in relation to the family house (CB 370.9):

    “The applicant said that it was two months after the birth of third child that the authorities moved in and destroyed the family home in Pingshan.  He said that, although not formally registered, the births were known to family planning authorities.  The Tribunal referred to the two photographs of the family house, which the applicant said had been taken in 1995.”

    The Tribunal observed that the

    “walls appeared to be white, albeit in poor condition, and there seemed to be some fire damage or similar in the ceiling cavity.  The applicant said that this was the result of the authorities’ action, and it was his father in one of the photographs.  The Tribunal said that it did not appear to have been destroyed or structurally unsound, with the father standing immediately beneath the damaged ceiling.  The applicant said that he had taken the photograph in order to show the damage (thus suggesting that his father had been prepared to risk injury in order to document the authorities’ actions against the family).  As to how the near-perfect photographs came to be in the applicant’s possession, he said that his wife had kept them and sent them to him.”  

11. This clearly relates to what the Tribunal subsequently found in its analysis. That the applicant had said that the authorities had moved in and destroyed the family home, and that while it was evidently a structure in need of repair or maintenance, it was not a building that anyone competent had sought to destroy as claimed. That the Tribunal incorporated into its decision record a transcript of the hearing before the earlier constituted Tribunal, where reference was made to photographs, does not establish that it indeed looked at those photographs or even relied on that part of the earlier constituted Tribunal’s discussion with the applicant involving the house and the photos. In my view, a fair reading of what has occurred is that when the Tribunal said it examined the photographs of the family home this was said with reference as stated to the “two photographs” that were discussed at the hearing on 2 September 2006 with the applicant.

12. Further, Mr Varess submitted that even in relation to those two photographs, that even though they were provided to the Tribunal, they were given by him as the adviser, and not the applicant. Therefore they were not given to the Tribunal such that the photographs would fall within S.424A(3)(b).

13. He submitted that this is an argument currently under consideration on appeal before the Federal Court (SZIOZ v Minister for Immigration and Citizenship (“SZIOZ”)) (NSD 203 of 2007)), and that if this issue was to be determinative of the matter before this Court, then this Court could await the handing down of this judgment. I note that at the time of the handing down of this judgment, that judgment has just been handed down in SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870. While the Court found for the applicant, the Court did so on the basis of a ground other than in relation to s.424A. But in any event, I do not see this issue as being determinative of the applicant’s complaint, given what I have said above about the application of what the High Court said in SZBYR to this case.

14. Further, on my understanding of the law as it stands at the moment, I cannot see that the applicant succeeds in the matter before me on seeking to draw a distinction between a written submission provided by an adviser acting within the scope of the authority provided by the applicant (see SZBQT v Minister for Immigration and Citizenship [2007] FCA 547, per Rares J, on appeal from this Court) and the provision of photographs by an adviser.

15. The provision, or the giving of, photographs by the applicant’s adviser was clearly within the scope of the authority provided by the applicant to his adviser (see CB 186). Nor, does the argument succeed to the extent that it suggests that there is a relevant difference between written submissions and visual material such as photographs provided by an agent acting within the scope of the authority provided by an applicant, and information or evidence given by a witness, albeit called by an applicant, but in circumstances where the applicant does not exactly know what the witness may say (for example, the situation in SAAP). Clearly the situation before the Court now does not fall into that category.

16. In relation to the complaint about the photographs, in short, even if the Tribunal did look at all eight photographs, SZBYR at [17] and [18], when applied, is against the applicant in the circumstances before the Court now. Separately, in my view, to the extent that the Tribunal referred to the “two photographs” these were provided by the applicant, through his adviser, and such material would, in any event, even if it were said to be “information,” would fall within the exception contained in s.424A(3)(b) from the requirements set out in s.424A(1).

The “religious information”

1. The applicant also relies on, as particulars to the alleged breach of s.424A, information provided by a letter from Sister Mary E. Britt, a letter from the Reverend Conway Ku, and a letter from the Reverend Chi Binh Trinh. In all, this is described in submissions as “religious information.” While plainly these letters were provided to the Tribunal by his advisers, the letter from Sister Mary Britt, and the letter from Reverend Conway Ku, are reproduced at CB 165 and CB 166, and were provided to the Tribunal on 24 June 2005 by the applicant’s former adviser under cover of letter sent by facsimile (reproduced at CB 139). The letter from Reverend Trinh (CB 324) was provided in a bundle of documents from the applicant’s advisers on 27 September 2006 (see CB 272).

2. The applicant again argues that the Tribunal relied on this information as part of the reason for its decision (see CB 383.4), and that in the same argument as above, that this information was given by the three signatories to the letters, and not by the applicant himself, and therefore does not fall within the exception contained in s.424A(3)(b).

3. This complaint does not succeed for similar reasons already referred to in relation to the other two complaints set out above. With reference to SZBYR at [17], what is contained in those letters did not contain, in their terms, a “rejection, denial or undermining” of the applicant’s claim to be a person to whom Australia owed protection obligations. In fact, as was noted in SZBYR in relation to what was contained in the subject document before the Court in that matter, and similarly in this case, if the contents of the letters were to be believed, they would have been a relevant step towards rejecting, not affirming, the decision under review.

4. That this is so is further shown by the fact that the Tribunal accepted the evidence that was given in these statements (see CB 383.3). What was said in those letters plainly was not the reason, nor a part of the reason, for the Tribunal’s decision to affirm the delegate’s decision. In all, therefore, the obligation in s.424A(1) was not engaged.

5. I also note the matter of SZCNG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 505 (at [37]-[38]) and respectfully agree with Barnes FM, that an applicant should properly be seen as “giving” information where the contents of material and evidence prepared by others is put to the Tribunal by the applicant.

The “household registration information”

1. Mr Varess submitted that the Tribunal relied on what was described as the household registration information as part of its reason for affirming the decision that was the subject of the review. He relied on the extract from the Tribunal’s decision record at CB 386.7 where the Tribunal said it considered the household registration booklet issued on 10 June 2003, and said:

   “The Tribunal has considered the household registration booklet, issued on 10 June 2003, that he [the applicant] relies on as evidence of his children’s non-registration and his own deletion from the record.  As noted at the hearing, the Tribunal has serious reservations about the weight that can be attached to the original he presented at hearing.  These include its near-pristine condition, his vague response as to how he came to have it (via a ‘friend’ who carried it from China) and why the original is with him in Australia rather than with his family. … The Tribunal finds, in the light of all these concerns, that it cannot place weight on the document as evidence that the children are not registered.”

2. It is not disputed by Mr Varess that the applicant “provided” the household registration document to the Tribunal at the hearing on 20 September 2006 (see paragraph 82 of written submissions). This is consistent with what the Tribunal said in its decision record in its account of what occurred at the hearing on 20 September 2006 at CB 368.9.

3. However, Mr Varess submitted that on the proper construction and application of s.424A(3)(b) this information does not fall within this exception to the obligation under s.424A(1). The reason being that while the applicant provided the documents to the Tribunal, the information it contained was given (the word used in s.424A) to the Tribunal by the Chinese authorities and not the applicant.

4. The applicant’s complaint, in my view, does not succeed for two quite distinct and separate reasons.

5. First, applying the reasoning of the High Court in SZBYR at [17], the document plainly did not contain in its terms any “rejection, denial or undermining” of the applicant’s claim to be owed protection obligations by Australia.

6. What the Tribunal made of this document is clearly its view of the appropriate weight to be attached to the document in all the circumstances. This view is not “information” for the purposes of s.424A (see SZBYR at [18] and the reference to VAF).

7. Second, I cannot see that the applicant’s argument as to the difference between “provided” and “gave” for the purposes of s.424A(3)(b) rises above an academic exercise in semantics. The obligation in s.424A(1) sits squarely within what the statute provides is the exhaustive statement of the natural justice hearing rule (s.422B, Division 4 of Part 7, Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 ([2006] FCAFC 61) (at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

8. As the High Court said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 29 ALJR 1009; [2005] HCA 24 per McHugh J (at [55]), this part of the Act is concerned with procedural fairness. Mr Varess’s argument is that the Chinese authorities “gave” the household registration document to the applicant and not to the Tribunal, and that all the applicant did was “provide” this document to the Tribunal. Even if the household registration information was said to be “information” for the purposes of s.424A(1), (with reference to SZBYR, I do not agree that it is) in any event, s.424A(3)(b) would operate to exempt the Tribunal from the obligation set out in s.424A(1).

9. There is no suggestion in the circumstances before me that the Chinese authorities “gave” or “provided” the document directly to the Tribunal, or that the Tribunal sought such a document from the authorities without the knowledge of the applicant. In my view, what clearly underlies the purpose of s.424A is that an applicant should not be taken unawares by information or material to be considered by the Tribunal and relevant to the ultimate disposition of his case without the opportunity to comment. Just because this document was authored by someone other than the applicant does not, in my view, detract from the very clear factual situation that the applicant physically “gave” the document to the Tribunal at the hearing. The document was discussed at the Tribunal hearing, and the applicant was given the opportunity to address the Tribunal’s concerns and was on notice that the issue of the “genuineness” of the document was part of the Tribunal’s concerns (CB 369.1).

The “disappearance information”

1. The applicant also complains that on 22 April 2005 the applicant’s former adviser sent a letter to the Department (see CB 39 to CB 57) which enclosed a letter from the Chinese authorities stating that the applicant had “disappeared,” and that the authorities have therefore “decided to cancel his residential registration” (see CB 56 to CB 57). (The letter is reproduced at CB 56.)

2. The applicant asserts that the document (the letter from the Chinese authorities saying that the applicant had disappeared and that they had decided to cancel his residential resignation), was provided to the Minister’s Department by the applicant’s adviser, but not provided or given to the Tribunal.

3. Putting to one side whether this so-called “disappearance information,” in the context of the document in which it appeared, was “information” for the purposes of s.424A, given SZBYR at [17]-[18], I note thatto the contrary the document containing the reference to “disappeared” was also provided or given to the Tribunal by the applicant’s former adviser under cover of a letter dated 24 June 2005 (see CB 140 and CB 159 for a copy of that letter). Given what is set out above this brings this “information” within the exception contained in s.424A(3)(b) from the obligation set out in s.424A(1).

The “travel document information”

1. The applicant also complains that the Tribunal made a reference in its decision record (CB 378.12) to his travel document issued by the PRC authorities, and that this travel document information was a part of the Tribunal’s reason for affirming the decision under review.

2. In written submissions (see paragraph 78) Mr Varess argues that the applicant provided this document to the Tribunal, at the hearing conducted on 20 September 2006. He relies on the similar argument, set out above, to argue that this was information provided by the Chinese authorities, to the Tribunal and not information provided by the applicant. For similar reasons, set out above, in relation to the application of SZBYR at [17] and [18], and in relation to rejecting the applicant’s argument as to the proper construction of s.424A(3)(b), this complaint does not succeed.

Information about the applicant’s tourist visa

1. The applicant also complains that there was information relied on by the Tribunal that the (period of effect of that) applicant’s Australian tourist visa had been extended twice. The applicant contends that in its s.424A letter of 31 August 2006 (see CB 207 to CB 209) the Tribunal only brought to the applicant’s attention one such extension of his tourist visa, yet at the hearing before it on 20 September 2006, the Tribunal made reference to the fact that the applicant had extended his visa twice (CB 372.1). Further that the information that the applicant’s tourist visa had been extended twice was a basis for the finding that the applicant could have sought protection at an earlier time in Australia had he needed it. In this way, the applicant states, the Tribunal failed in its obligation pursuant to s.424A(1) to notify the applicant that it was seeking to rely on the information that his tourist visa had been extended twice, instead of once.

1. This particular does not succeed in revealing any failure pursuant to s.424A(1). The information that the applicant’s tourist visa was extended twice was also (in addition to whether similar information before the Tribunal) put to the Tribunal by the applicant’s former adviser (see the items “28/03/1998” to “31/01/1999” in the chronology of relevant events (CB 127 to CB 129) provided by the former adviser. This chronology was provided to the Tribunal at the hearing of 2 June 2005 (see the annexure to the affidavit of Maggie Chen at page 6.4).

2. I note in this regard that while the decision made by the earlier constituted Tribunal was quashed, and remitted by consent, material provided to the Tribunal, and given by the applicant (or his adviser acting within the scope of the authority provided to her), was still “information” given to the Tribunal for the purposes of s.424A(3)(b) such as to fall within that exception (SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; (2006) FCR 291). In all, therefore, this particular does not assist the applicant in showing any failure pursuant to S.424A(1).

3. None of the particulars to this ground support the applicant’s complaint that the Tribunal failed in its obligation pursuant to s.424A. This ground is not made out.

Ground Four in the Amended Application – Tribunal misunderstood claims

1. The fourth stated ground in the amended application makes two complaints. The first is that the Tribunal either misunderstood or failed to consider and make findings on claims made by the applicant or, in the alternative, on evidence put before the Tribunal, which if accepted, could have led the Tribunal to make a decision favourable to the applicant. This ground is particularised with the complaint that the applicant’s former adviser had identified problems with the interpreter engaged by the Tribunal for the hearing held on 2 June 2005 (the hearing before the earlier constituted Tribunal), and that the adviser had raised, generally, difficulties with Cantonese interpreters. The applicant seeks to rely on evidence in support of these complaints said to have been before the Tribunal.

2. Mr Varess explained at the hearing before the Court that the applicant did not have a complaint about that the hearing conducted with the assistance of the interpreter Ms Chen. The applicant’s complaint related to what occurred at the first hearing before the earlier constituted Tribunal, that is, the hearing on 2 June 2005. (Remembering that the applicant attend on three occasions before the Tribunal: 1. On 2 June 2005 before the earlier constituted Tribunal. 2. On 29 August 2006 and 20 September 2006 before the subsequently constituted Tribunal.) The complaint is that the applicant had “problems” with the interpreter at the first hearing. The importance of this concern now is that the Tribunal relied on what it said were “inconsistencies” arising out of what the applicant was said to have stated at that first hearing, when compared with what he subsequently put to the Tribunal as subsequently constituted.

3. Mr Varess’s submission was that the Tribunal disregarded complaints made by the former adviser (CB 107.10), and further, during the hearing of 29 August 2006 before the Tribunal, the applicant told the Tribunal of his difficulties, asked the Tribunal to disregard what he had said at the earlier hearing, yet the Tribunal proceeded to make an adverse credibility finding in respect of the applicant. Mr Varess submitted that during that hearing the Tribunal said that it had asked the applicant to draw its attention to any part where he had raised a complaint before the earlier constituted Tribunal, and that the Tribunal doubted that there were any such problems because the former adviser (who was respected) would have alerted the Tribunal to any interpretation problems.

4. The applicant claimed that he had told the previous Tribunal member that he had problems with the interpreter. The complaint now is that the Tribunal misunderstood that claim even though there was evidence in support of that claim. Mr Varess pointed to the document reproduced at CB 107 which is a letter from the adviser to the Tribunal dated 1 June 2005. This made general claims about a continuing lack of confidence in Cantonese interpreters “thus far,” and as it pre-dated the hearing of 2 June 2005, obviously, could not have been a complaint about the level of interpretation used at that first Tribunal hearing. Although (at CB 147), in a statement by the applicant sent on 24 June 2005, there is a reference by the applicant to “the interpreter had some problems with numbers and reading Chinese. Now this makes me worried that maybe she was not sure about other things I said.”

5. This particular ground of complaint is not necessarily (as is ground one) a complaint about the level of interpretation at the hearing per se, but that the difficulties with the interpreter, and the claimed difficulties that the interpreter was said to have had with understanding the applicant, led to the Tribunal misunderstanding the applicant’s claims and therefore failing to properly deal with those claims.

6. In this context, it is clear, as submitted for the Minister, this is a somewhat “surprising allegation.” The Tribunal plainly took into account the claimed concerns with the interpreter at the first Tribunal hearing (that is, the hearing conducted by the earlier constituted tribunal), and acted on it. Ultimately the Tribunal obtained the services of an interpreter for the hearing on 20 September 2006 who was requested by the applicant, that is, Ms Chen. But even further, engaged another interpreter (one who had “NAATI level 3” accreditation) to listen to, and assess, the hearing tapes that recorded the hearing that was conducted on 2 June 2005. The Tribunal obtained a report from this other interpreter, which included her conclusions that there were no significant language problems, and put this information to the applicant in its s.424A letter dated 5 September 2006 (CB 219 to CB 225).

7. The Tribunal gave the applicant an opportunity of addressing the interpreter’s comments and, in particular, the comment that the applicant had been able to understand the interpreter in the Cantonese language at that time. The Tribunal particularly noted that the applicant’s submission (through his adviser) attached a “marked-up” version of the record of the 2 June 2005 hearing record. The Tribunal said (CB 376.4):

   “It records the applicant's current, and in some instances significantly different, version of events.  Despite the Tribunal's invitation to the applicant to draw to its attention any relevant instances of actual misinterpretation, the only commentary relates to his alleged (general) difficulties in communicating and his lack of awareness of his right to request alternative interpreter.”

8. On the material before me, it is plain that the applicant, following the appointment of Mr Varess as his adviser (8 August 2006 – CB 185 to CB 187), insisted that he preferred, and wanted, the use of a “Huadu” (the immediate location in China from which the applicant originally came) interpreter, rather than on a general Cantonese-speaking interpreter. However, the applicant’s complaint that the Tribunal misunderstood his claims because of interpretation difficulties and therefore failed to adequately deal with his claims is not made out. The applicant was given the opportunity to provide comments on the report of the first Tribunal hearing, and the Tribunal plainly took these comments into account.

9. The Tribunal said in its decision record at CB 361.6:

   “The applicant attended a tribunal hearing on 2 June 2005.  The current Tribunal has considered the applicant’s contention that there were interpretation problems of the first hearing that the interpreter text is therefore unreliable and that those proceedings should be regarded.”

10. The Tribunal plainly rejected this suggestion for the comprehensive reasons that it gives in its decision record. In its “Findings and Reasons” the Tribunal squarely addressed not only the issue of the level of interpretation but the “presentation of claims” (see CB 378.3 to CB 380.2).  It specifically found (at CB 378.5):

    “The Tribunal is satisfied that the applicant could in fact express his refugee claims in Cantonese – based on his repeated indications right up to 28 August 2006 that this was his preferred language of communication, his performance at the first Tribunal hearing and his extensive business in a Cantonese speaking area outside his immediate area.”

11. But even now, apart from the general complaints which it appears Mr Varess seeks to re-agitate before this Court, there is nothing before this Court to show that the Tribunal misunderstood any of the applicant’s claims, or aspects of his claims, and therefore thereby failed to properly, and adequately, deal with these claims.

Ground One in the Amended Application – Level of interpretation inadequate

1. Mr Varess indicated at the hearing before the Court that he still sought to rely on ground one as separate but linked to the immediate complaint above. This ground asserts that the quality of the interpretation before the Tribunal of the applicant’s evidence at the hearing conducted pursuant to s.425 was inadequate, and thereby prevented the applicant from having a real opportunity to present his case.

2. I note further to what is set out above that in relation to the hearing of 2 June 2005 conducted before the previously constituted Tribunal, the applicant’s subsequently expressed concerns were fully considered by the Tribunal (see CB 378.3 to CB 379.3).

3. In her affidavit of 15 May 2007, Ms Chen asserts that there is a difference between Cantonese spoken in Hong Kong and differences in Cantonese spoken in different districts of Guangzhou. Further, that the applicant was born in Huadu district and when he spoke in this dialect to her (at the time she assisted Mr Varess in “marking up” the first Tribunal’s account of the hearing of 2 June 2005 – see CB 306 to CB 309 and paragraph 21 of her affidavit) she could not understand him.

4. While there may be differences in dialects and while she could not understand the Huadu dialect does not go directly to the issue of whether the level or standard of interpretation at the hearing of 2 June 2005 fell short of the standard required (see Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 (“Perera”), Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 (“Singh”)). Further, Mr Varess did not take the Court to any part of the transcript of the hearing now provided as annexure “A” to Ms Chen’s affidavit to point to any such instances.

5. On what is before the Court, I cannot see that it was not open to the Tribunal to find (with Perera in mind – CB 378.4) that the applicant’s complaints were not made out (CB 379.2), “there were no significant difficulties with language or dialect” (CB 379.3) and that the applicant’s complaints were “that the applicant manufactured his language problems, with the intention of obstructing the conduct of the review” (CB 379.4).

6. Ultimately, the applicant, whatever the situation with the first hearing of 2 June 2005 before the earlier constituted Tribunal, had two opportunities before the currently constituted Tribunal to attend a hearing and give his evidence.

7. In relation to the hearing on 29 August 2006, the applicant’s complaints now before Court do not particularise any parts of that hearing in relation to which the applicant claims to have received an inadequate level of interpretation (Perera, Singh). The applicant’s complaints now are still that the Tribunal did not provide a “Huadu” interpreter, and he takes issue with the Tribunal’s findings that the applicant had manufactured his concerns: “at the last minute” (CB 367.7). But no particulars are put forward as to how the level of interpretation was inadequate.

8. That the applicant now asserts that he did not want a Cantonese interpreter, but wanted a Huadu-speaking interpreter, does not in itself reveal that the Tribunal hearing of 29 August 2006 was conducted with an interpreter who did not provide an adequate level of interpretation. The short extract of a transcript of that hearing provided at annexure “A” to the affidavit of Ms Wooster does not go to this issue. While the applicant has provided evidence in relation to the hearing of 2 June 2005 the only evidence before the Court relevant to the issue of the level of interpretation as at the hearing of 29 August 2006 is the Tribunal’s own account of what occurred, and the “general” evidence as to dialect etc, of Ms Chen in her affidavit, which again appears primarily focused on the hearing of 2 June 2005.

9. In any event, as referred to above, the parts that can be said to possibly have general applicability, that is, her evidence which relates to the applicant being a Huadu speaker, and that she had difficulty in understanding him when he spoke Huadu (see paragraph 21 of her affidavit), does not assist the applicant in revealing that there was an inadequate level of interpretation provided at the hearing of 29 August 2006.

10. No complaint is made about the hearing on 20 September 2006.

11. This ground also does not succeed.

Ground Four in the Amended Application – Child registration

1. The remaining particular to ground four is that the Tribunal either misunderstood or did not adequately take into account or make a finding on the applicant’s claim that he did not state at the 2 June 2005 Tribunal hearing that his children were (or that his second child was) registered.

2. In relation to the applicant’s complaints and his claimed fears flowing from China’s “one-child policy,” the Tribunal accepted that the applicant and his wife had three children as claimed (albeit with some difficulty) (CB 383.9), but did not accept that the children were unregistered (CB 384.1).

3. In submissions, Mr Varess asserted that following “amendments” to the record of the hearing of 2 June 2005 (see in particular annexure “A” to the affidavit of Ms Chen at page 18), that the applicant’s position in relation to the registration of his children was: “officially up till this point they do not have the official registration.” The submission was that the Tribunal’s analysis failed to understand that the applicant’s final position in relation to his children’s registration at the 2 June 2005 hearing was that they were not registered. That it failed to have regard to explanations provided by the applicant after the 2 June hearing in relation to why his evidence at that hearing may have seemed inconsistent, and that in a statement on 22 June 2005 (CB 147 to CB 151) the applicant explained that household registration is a matter administered by provincial public security authorities, and that while none of his children were so registered, they were registered with local authorities. This was put forward as the explanation now as to the misunderstandings by the Tribunal.

4. The Tribunal’s relevant analysis is set out at CB 383.8 to CB 385, where it deals in turn with the various claims relating to the registration of the children, and the payment of fines, in relation to each of the three children. The Tribunal’s analysis plainly reveals that it noted claims made by the applicant, and on his behalf, as to what was said, and what was claimed not to have been said, at the hearing of 2 June 2005. The Tribunal, however, arrived at its conclusions and made its findings of fact on the basis of other relevant material.

5. In relation to the first child, the applicant’s claim (his “rationale”) and explanation as to why he had not registered the first child (“his rationale”) was found not to “stand up to scrutiny” (CB 384.4). The Tribunal found that the first child was “indeed registered contrary to the applicant’s current claims” (CB 384.5) on the basis that the first child, in any event, having regard to the policy was “not illegal.” There was no bar to its registration. Further, relying on the applicant’s own evidence before it (at the hearing of 20 September 2006) that the family planning authorities had records of local births regardless of registration, it noted the applicant’s claims that they were acting on these records when they allegedly mistreated the family from 1995. On this basis, the Tribunal reasoned that the applicant had no basis to think that the non-registration of the first child would have any impact on the ability of the family planning authorities to detect and punish subsequent “out of plan” births (this being the rationale for not registering the subsequent births). The Tribunal reasoned that there was no reason for the applicant to have denied the firstborn child registration with the consequent disadvantages that that entailed 9CB 384.2 to CB 384.5).

6. In relation to the second child, the Tribunal accepted the applicant’s own evidence given at “the most recent hearing” that the authorities had enforced a fine and tried to have his wife undergo a tubal ligation. For the reasons that it gives (CB 384.6 to CB 384.10), the Tribunal accepted the applicant’s evidence that his wife paid a fine of some insignificant amount, which was consistent with country information in this regard, and that this “paved the way for the second child’s registration.”

7. In relation to the third child, the Tribunal accepted the applicant’s evidence and claims that this child was: “out of plan and that the family was therefore subject to a larger fine.” It accepted, on the material before it, that a fine of RMB 10,000 was levied in 1995, and that this was paid in full by 1997, and that the child was then registered 9CB 385.1 to CB 387.3).

8. The findings were all open to the Tribunal on what was before it. I cannot discern error in its analysis or its findings which were directed to the applicant’s claims as ultimately put.

9. In all, therefore, I cannot see that any alleged misunderstanding said to have occurred as to what the applicant said, or claimed to have said at the first hearing of 2 June 2005, resulted ultimately in any misunderstanding by the Tribunal of the applicant’s claims and the resolution of this aspect of his claims relating to registration and the one-child policy. In all, therefore, this complaint also is not made out.

10. Further, I also separately accept submissions made by Mr Reynolds that the Tribunal’s conclusion (CB 381.8):

    “that the applicant did not have genuine fear of persecution in China at any time before his detention in 2005 [noting that the applicant arrived in Australia in February 1998 – CB 16 – and was taken into detention by the first respondent in 2005] but that his protection visa application was lodged solely as a means of prolonging his stay in Australia”

    was comprehensive in forming a basis for affirming the decision under review as it related to the child registration issue given that relevant events and claims in this regard occurred prior to 2005.

Conclusion

1. The applicant’s grounds put forward with legal assistance do not reveal jurisdictional error on the part of the Tribunal. This application is therefore dismissed.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  7 December 2007