SZGUI v Minister for Immigration
[2006] FMCA 838
•25 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 838 |
| MIGRATION – RRT decision – Chinese person claiming persecution for activities in underground church – Tribunal found claims fabricated – significance of possible error by interpreter at hearing – no jurisdictional error found. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A(1), 424A(3)(a), 424A(3)(b), 425, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
| Applicant: | SZGUI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1902 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 25 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1902 of 2005
| SZGUI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 19 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 May 2005 and handed down on 21 June 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as the powers of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in September 2004 on a short visitor’s visa. Two days after his arrival an application for a protection visa was lodged on his behalf by migration agent, Priscilla Yu. The application attached a four‑page typed statutory declaration containing a history upon which the applicant sought protection in Australia against return to his country of nationality, The People’s Republic of China.
In brief, he said he was a young man born in 1983 “from a Christian family” which had “refused to join religious practices at the official church, instead, they became regular participants in family church, which is also called as “underground church” for the reason that it is not allowed by the PRC authorities”. He said he was told Bible stories and had been impressed by them. However, his parents did not allow him to be directly involved in activities of the underground church.
In 2001 he began to participate in such activities during a school summer holiday, when a teacher at his school “organised about 10 students including me to study the Bible, and to distribute some of religious propaganda materials provided by the underground church”. He assisted the teacher to organise a small Bible study group, which continued until March 2002, when the authorities took notice of the teacher’s activities, dismissed him and sentenced him to “one‑year labour reform. I was given an administrative punishment – kept studying at the school but under surveillance, and also had to submit a self‑examination report”.
He claimed that in December 2002, after he left school, he helped another person in his province to establish a secret Bible study group, and “I quickly became a major activist to assist Mr X in development of his group”. He helped organise another group in the same town in May 2003, and “we had regular religious gatherings, and we also distributed religious propaganda materials in [the] area”.
His statutory declaration continued:
j)However, during one‑year period, we have experienced many difficulties, because the PSB and the local officials tried every means to destroy religious practices and gatherings of our organization. In October 2003, I was arrested by the policemen together with other 3 members of the youth Christian group, while we were distributing some religious propaganda materials in a small village. I was detained for 3 days, and then was released after I was asked to pay RMB 5000 yuan as penalty.
k)On 1st March 2004, I was arrested for the second time by the PSB when I joined a secret gathering in [a] Village. I was denounced to organize illegal religious gathering and I was detained in the detention centre of [town] PSB. During the following one‑month period, I was subjected to interrogation many times, and was physically mistreated by the policemen. In order to force me to confess activities of the underground church, the policemen even locked one of my hands with one of my feet together, so that I was forced to maintain in an extremely difficult posture. However, I refused to co‑operate with the policemen from the beginning to the end. Eventually, the policemen had to release me on 31st March 2004, but required me to report to the local police station once a week. The PSB also warned me not to have any religious activities again; otherwise, I would be subjected to severe punishment.
The applicant claimed that he was then advised to leave the country, and contacted a person who “knew a lot of international guides who worked for different travel agency. [The person] used his contacts to secretly arrange my trip to the overseas. It is with his help that I eventually escaped from China”.
No supporting material was presented with his application, nor to the Department subsequently, and a delegate refused the visa application on 31 January 2005.
The applicant lodged an appeal to the Tribunal assisted by his agent on 8 March 2005. He enclosed a submission disputing the reasoning of the delegate, but no additional supporting material was presented until the applicant attended a hearing on 20 May 2005.
The applicant attended the hearing with a migration agent who was present throughout. At the hearing he presented a statement from a pastor of a Christian Fellowship Centre at Petersham which said:
To whom it may concern
This is to inform that [the applicant], he has been attending our Church Sunday worship meeting since 19 Sep 2004. [The applicant] appears to be well behaving person.
If you need any more information regarding the above member, Please do not hesitate to contact me.
Thank you
You’re sincerely
In the course of the hearing, the applicant claimed to have been mistranslated in relation to an early response to a question of the Tribunal which asked: “are you Catholic or Protestant?” The interpreter had interpreted the response as “Catholic” and maintained that translation after listening to the tapes. However, the applicant and his agent maintained that he had used a Chinese word for “Protestant” or “Christian”. The discussion about the true translation occurred, on the description given by the Tribunal, about halfway through the hearing which then continued.
According to the Tribunal, at the end of the hearing:
His agent, Mr Huang, told the Tribunal that there were no further questions he could suggest should be put to his client, and that he did not wish to make any oral submissions. As noted above, it was agreed that a written submission would be provided by 26 May 2005.
This referred to the Tribunal allowing the agent to make a submission on the matter of the alleged mistranslation. Such a submission was presented to the Tribunal by letter dated 25 May 2005. The applicant’s agent presented an opinion of an interpreter with a similar level of qualifications as the interpreter at the Tribunal’s hearing, which was to the effect that the applicant had used the word for “Protestant” or “Christian” and not the word commonly translated as “Catholic”. The translator’s opinion was that the translation made by the interpreter at the hearing was “an error”.
In its statement of reasons, the Tribunal shows at an early stage in its description of the hearing that it was fully aware of this dispute when it came to write its reasons and arrive at its decision. It referred to the early question and the applicant’s translated response “that he was a Catholic”, and then said in brackets “(this was a subject of debate later at the hearing – see below)”.
The Tribunal then, before describing how the issue of the mistranslation was raised, recounted questioning which explored the applicant’s account of his schooling and introduction to a religious group. It also recounted questioning in which it attempted to assess the applicant’s knowledge of Christianity. It did this by asking general questions to discover the applicant’s knowledge of the Bible, including the New Testament and the Old Testament, and knowledge of the Lord’s Prayer. The Tribunal also questioned the applicant about his involvement as an organiser of a youth group conducting Bible studies. In the course of this questioning, the Tribunal put to the applicant various concerns that it said it had.
The Tribunal then referred to an adjournment of the hearing for ten minutes, and continued its description:
On resuming, I asked [the applicant] to name the person who was most senior in his church. He responded that he was “just Christian, not Catholic”. I told him that he had been interpreted earlier as saying he was Catholic. He responded that he had used the word for “Christian”, not “Catholic”. At this point his agent, who had been making typed notes on a laptop computer throughout the hearing, showed me the screen, in which he had written [the applicant’s] answer at that point as “Catholic?”. We then replayed the relevant section of the tape several times, after which the interpreter expressed certainty that [the applicant] had used the word for “Catholic”, which was “Tian Zhu”, and not “Jidu”, which was the word for “Christian”. The agent expressed the opinion that his client had merely said he was “Christian”. I told him that I would take his view into account but that I was inclined to rely on the professional interpreter’s opinion. It was subsequently agreed that the agent, Mr Huang, would make any submissions he wished on this matter by 26 May 2005.
The Tribunal then referred to further questioning of the applicant about his claimed age when leaving school, his obtaining of his passport and his travel to Australia.
The Tribunal described at the end of the hearing that:
[The applicant] said there was nothing else of significance he wished to tell the Tribunal. I told him that I would have to consider the plausibility of his claims about being a Christian and about his religious activities in China. He responded that there were some “underground” churches in China that were “registered” but his was different. I asked him if it was attached to any particular underground church, and he said it was attached to the “Fujian Underground Church Organisation”. I told him that I had not heard of this organisation, and asked him if he could suggest any source of evidence confirming its existence. He responded that he could not.
Putting those concerns to the applicant, the Tribunal recorded the applicant’s agent telling the Tribunal “that there were no further questions he could suggest should be put to his client, and that he did not wish to make any oral submissions”.
What happened at the hearing is central to the applicant’s grounds for review which I shall address below. He was directed at a first court date held before me to file any evidence by way of affidavit, and specifically that “evidence of a Tribunal hearing shall be presented as a transcript verified by affidavit”. The applicant did not file such a transcript, appearing therefore to accept and rely upon the Tribunal’s description of the hearing, and he was content to do that today at the hearing before me.
When preparing for today’s hearing I found on the Court file an affidavit filed by the Minister’s solicitors, attaching a transcription which I assumed would be read by the Minister. I assumed that it had been served on the applicant. However, counsel for the Minister informed me that this had been filed by mistake and was not served on the applicant, and that, in the circumstances, he did not consider that he could or should rely upon it. A copy was given to the applicant, but obviously he did not have that opportunity.
I discussed the matter with the applicant. In view of his statement to me that “it was not necessary to read it”, I proceeded with the hearing, and have not taken into account the contents of the transcript when arriving at my conclusions indicated below. I should record, however, that I did consider its contents when satisfying myself that it was fair to this unrepresented applicant to proceed with the hearing on that basis. In my opinion, if the transcript had been received in evidence, it would not have materially advanced the applicant’s case.
The Tribunal’s statement of reasons, after describing the hearing, contained a description of its researches into general country information concerning the situation of Christians in China, and in the applicant’s province of Fujian in particular. The information suggested that the official attitude was more liberal in that province than in other parts of China. The Tribunal also referred to information concerning exit control procedures from China.
Under the heading “Findings and Reasons”, the Tribunal gave brief reasons for affirming the delegate’s decision. At times the Tribunal makes some errors in its syntax, but these do not cause me to think that the Tribunal did not give proper consideration to the claims made by the applicant.
At the start of its findings, the Tribunal referred to the applicant’s responses to its questions exploring his knowledge of Christianity:
At the hearing [the applicant] was able to recite the Lord’s Prayer and to state the significance of Easter and Christmas. As I accept he has been attending church services since his arrival in Sydney, without more I am unable to infer from this that he learned these things while in China. He was unforthcoming as to what he had learned as an adult about the Bible and, despite being invited to illustrate his understanding about his claimed religion, did not do so.
The Tribunal then expressly indicated how it had treated the dispute as to the alleged mistranslation at the start of the hearing:
The Tribunal has been asked not to draw any adverse inferences about [the applicant’s] credibility arising from whether he described himself as “Catholic” or simply “Christian” in response to my question as to whether he was “Catholic” or “Protestant”. I have noted that the professional interpreter present throughout the hearing was confident that [the applicant] used the term for “Catholic”, while an interpreter with the same level of NAATI accreditation has expressed the view that [the applicant] used the term for “Christian”. As the applicant spoke almost inaudibly throughout the hearing (having to be reminded that it was to his benefit to speak more loudly for the benefit of the taped record on several occasions) I accept that both interpreters must have had difficulty hearing [the applicant’s] response to this question. For that reason I am prepared to give [the applicant] the benefit of the doubt and accept that he may have used the term for “Christian”, rather than the term for “Catholic”.
Immediately following that paragraph, the Tribunal made a critical assessment of the level of the applicant’s knowledge of Christianity:
[The applicant] has submitted no documentary evidence in support of any of his claims. His responses to my questions throughout the hearing were consistently hesitant, vague and brief. During the debate over his use of the term “Christian” or Catholic” (see above) he did not exhibit any understanding of the difference between the various terms for “Catholic”, “Protestant” and “Christian”. While I appreciate that he may have been nervous in an unfamiliar environment, [the applicant] did not strike me as a person who was sufficiently knowledgeable about Christianity to have been chosen to establish a Christian group, nor to have been the “main teacher” in such a group, nor to be sufficiently self‑motivated or focussed to have done the things he described.
I shall return to a consideration of this paragraph when I consider the question of rationality below. I shall refer to the preceding paragraph, when I consider the questions of procedural fairness below.
The Tribunal then addressed various aspects of the applicant’s account of his personal history in Fujian and his claimed involvement in Bible study groups. It found various aspects “very difficult to believe”, “highly unconvincing”, showing “confusion”, and “highly implausible”.
Its final conclusions were:
[The applicant’s] account was not generally consistent with the independent evidence to which I have referred, and his account of the events leading to his departure from China lacked cogency. I am unable to accept that those events occurred. I do not accept that he was involved with an underground Christian church in China or that he was ever suspected of being involved with one.
While I accept that he has been attending a church in Sydney, I do not accept that that reflects anything more than a wish to strengthen his application for a protection visa, and do not accept that he has become a Christian since his arrival in Australia.
I am satisfied for all these reasons that [the applicant] has fabricated his claims to refugee status. I am satisfied that he was not, at the time he left China, of any adverse interest to the authorities for any Convention reason nor that he would be of adverse interest for a Convention reason if he were to return to China. I find that [the applicant] does not have a well‑founded fear of persecution for a Convention reason.
Notwithstanding a problem of syntax in the last paragraph, in my opinion, the Tribunal should be understood to have clearly rejected the credibility of the applicant’s central claims. I consider that in the second of the paragraphs I have extracted above, the Tribunal implies a positive finding that the applicant did not become a Christian before attending church in Sydney, and doubting that he had become a Christian since arrival. Only by reading the paragraph in that way would the subsequent finding of fabrication be able to be properly understood. Similarly, I consider the last paragraph should be read as containing findings that the applicant was not of adverse interest to the Chinese authorities when he left China, and would not be of adverse interest if he returned to China.
The applicant’s grounds for judicial review were stated in an original application, and have been restated with some rearrangement in an amended application. I do not think there is any point raised in the application which I cannot address by reference to the amended application. It presents an argument over several pages and is not organised in the manner that a legal representative would have arranged separate allegations of jurisdictional error. I do not think it useful for me to set it out in full. Assisted by the analysis performed by counsel for the Minister, I consider that six contentions should be addressed. Some of these were amplified by the applicant in his address to me today.
The first contention focussed upon the concern that the Tribunal had been given a mistranslated response to its early question on whether he was a Catholic or Protestant. I have recorded how this occurred above, and how the Tribunal addressed the issue both in the course of the hearing and in its reasons. The applicant’s complaints are explained in the amended application (references to the Court Book are omitted):
3.Particularly–:
a.Although the Tribunal, in its decision, said that it had not drawn any adverse inferences about my credibility arising from whether I described myself as “Catholic” or simply “Christian” in response to the Tribunal’s question as to whether I was “Catholic” or “Protestant”, the Tribunal has, apparently, ignored that–:
b.Neither the interpreter herself at the hearing before the Tribunal is Catholic, nor is Christian (she chose “affirmation” while she was required to make a declaration at the beginning of the hearing). It is inevitable to infer from this that she may not be able to correctly interpret particular religious terms, such as exact different meaning between “Catholic” and “Protestant”; or the one between “Christian” and “Protestant”; or the one between “Catholic” and “Christian”; because the interpreter did not have necessary religious knowledge and background;
c.During the hearing, I might speak inaudibly, but my voice was clearly enough to describe myself as “Christian” but not “Catholic” while I was asked by the Tribunal about relevant question. It is clearly that the interpreter at the hearing has made a significant mistake. It is definitely unfair to deny or lubricate such a significant mistake;
d.The above‑mentioned interpreter’s mistake was happened in the very early period of the hearing. It has led the Tribunal to a completely wrong direction that it believed I was a “Catholic” but not “Christian”; which made the Tribunal doubt my claims on one hand (because it would be much different from my claims in written materials); and on the other hand, which caused the Tribunal inevitably ask wrong questions.
e.Especially, such a significant mistake made me confused many times during the hearing. I believed that I had clearly informed the Tribunal I was a Christian but I was confused by those questions regarding to “Catholics”.
f.In such a situation, the Tribunal has, obviously, made a wrong finding – the Tribunal found that I “did not exhibit any understanding of the difference between the various terms for “Catholic”, “Protestant” and “Christian …” and I “did not strike” the Tribunal “as a person who was sufficiently knowledgeable about Christianity to have been chosen to establish a Christian group …”.
In his oral address to me, the applicant sought to identify this circumstance as showing a jurisdictional error, being a failure by the Tribunal under s.425 of the Migration Act. Decisions of the Full Court have construed this section as containing an obligation not only to post an invitation to a hearing, but also to give an applicant “an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture”, and requires the Tribunal “to provide a real and meaningful invitation” (see Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]‑[37], and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30]).
It has been accepted by the Full Court in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [15]‑[16] that this may encompass the providing of a standard of interpretation which allows an applicant effectively to give his evidence. Their Honours said:
15Failure to provide adequate interpretation services in the hearing before the Tribunal could, in some circumstances, constitute a failure to observe the procedures in connection with the making of the decision that were required by the Act or the Migration Regulations as then required by s 425(1) of the Act. Section 425 of the Act provided at the time of the Tribunal hearing:
‘425…
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’
16As the Full Court of this Court said in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at 299 [33]‑[37]:
‘Pursuant to s 425 of the Act the tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]; 64 ALD 395.
In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541; 187 ALR 348 the Full Court of this court considered the nature of the obligation imposed on the tribunal by s 425 of the Act. The question before the court in that case was whether, if the tribunal constituted for a particular review had been reconstituted after an oral hearing, the second member was required by s 425 to invite the applicant to appear again and give evidence and present arguments to that new member. Their Honours held that no such requirement was imposed by s 425 and went on to make the following observations, (at [44]):
“The right to a hearing is clearly an important and central right in the merits review system established by Pt 7 of the Act. This has been acknowledged in other contexts: see for example Amankwah v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 248 at [13]; 166 ALR 460; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [20]; 56 ALD 231. The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances. The right to be invited exists unless the applicant’s appearance is unnecessary from the applicant’s point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right. The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the parliament’s intention that, at least generally, there should be a right to be invited to appear before the tribunal.
Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the minister’s submissions that the applicant’s right to appear before the tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act. As we have noted, the Amendment Act provided a new right to present argument before the tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. Certainly there is nothing in the explanatory memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right.”
Section 425 is not a code setting out all of the requirements for a fair hearing by the tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself – this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation – only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the tribunal.
It is clear that s 425 of the Act does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.
On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the tribunal. The statutory obligation upon the tribunal to provide a “real and meaningful” invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.’
Counsel for the Minister did not concede that obligations arising under s.425 in respect of the quality of interpretation would duplicate obligations under common law which might otherwise be excluded by s.422B. However, in the present case I do not need to explore the authorities addressing this question. In my opinion, the procedures followed by the Tribunal after being alerted as to the controversy as to the correct interpretation, do not reveal the applicant being materially disadvantaged by the mistranslation, even if it occurred.
As I have indicated above, the Tribunal gave the applicant what, in my opinion, was an ample and sufficient opportunity for him to give further evidence in the course of the hearing and with the advice of his agent, so as to correct any misunderstandings which could have arisen during the first half of the hearing as a result of the mistranslation. He and his agent were given a further opportunity at the end of the hearing to present further evidence and make further submissions. The applicant availed himself of that opportunity. Moreover, when the Tribunal ultimately assessed the evidence which it had received at the hearing, it shows that it made that assessment alive to the claim of mistranslation, and it said that it gave the applicant “the benefit of the doubt” and made its assessment on the assumption that he had used the word for “Christian”, rather than the term for “Catholic”. I do not accept that, in fact, it did not do that.
I therefore do not accept that there was any unfairness in the proceeding in the Tribunal arising from the claimed mistranslation which could give rise to a breach of s.425 or any other procedural obligation on the Tribunal.
The second contention arising from the applicant’s written and oral submissions was that the mistranslation resulted in the Tribunal failing to address his claims upon a true understanding as to their content. I accept that, if this occurred, then there could be jurisdictional error upon principles discussed by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263. However, in my opinion when it came to reach its decision, the Tribunal was not acting under any material misconception as to which denomination of Christians the applicant claimed to belong.
I have also considered, although I do not think the applicant contended, whether the evidence before me established actual or apprehended bias on the part of the Tribunal in the sense that its questioning revealed a closed mind which refused to give proper weight to the accurate responses of the applicant to some questions concerning Christianity (compare NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328). However, I do not think that such a contention has an evidentiary foundation in the evidence before me.
This leads me to the fourth contention found in the applicant’s submissions. This raised for consideration the rationality of the Tribunal’s reasoning, in particular when it assessed his level of Christian knowledge. In particular, the further amended application alleged an inconsistency between the Tribunal’s giving the applicant the benefit of the doubt as to his denomination, and its finding in the next paragraph, which I have extracted above, that it had been left with an impression that the applicant’s knowledge was not consistent with the position of leadership he claimed to have had in Christian groups. The amended application said:
3.Particularly–:
…
g.The Tribunal’s decision is, apparently, inconsistent. On one hand, the Tribunal stated that it had not draw any adverse inferences owing to the error of the interpreter; but on the other hand, the Tribunal said that I “… did not exhibit any understanding of the difference between the various terms for “Catholic”, “Protestant” and “Christian” … and I “did not strike” the Tribunal “as a person who was sufficiently knowledgeable about Christianity to have been chosen to establish a Christian group …”. However, when the Tribunal made such a finding, the Tribunal ignored the fact that it was definitely impossible for me to “… exhibit any understanding of the difference between the various terms for “Catholic”, “Protestant” and “Christian” … or to “… strike” the Tribunal “as a person who was sufficiently knowledgeable about Christianity to have been chosen to establish a Christian group …”, because the interpreter was UNABLE to translate those religious terms correctly.
Although the basis for the Tribunal’s adverse impression is left obscure, I am not prepared to find that this part of the Tribunal’s reasoning revealed that “the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds” within the language of the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]. There is not, in my opinion, a logical inconsistency between the two findings which the applicant’s amended application identifies, and I am not satisfied that its adverse finding was not open to it.
The Tribunal’s adverse finding as to the applicant’s knowledge of Christianity addressed areas of Christian knowledge which transcend the Catholic denomination. The Tribunal was, in my opinion, entitled then to form and rely upon general impressions from the applicant’s responses to questioning about an activity, in relation to which he claimed to have been persecuted, particularly in a case such as the present where the applicant presented his history in China with no corroboration. I am not satisfied that what occurred at the hearing in the present case could not, as a matter of law, have allowed the Tribunal to have formed the impression which it described.
Moreover this adverse finding is but one of several independent reasons the Tribunal identified for arriving at its ultimate adverse conclusion. The other reasons addressed rational and relevant considerations. In my opinion, the overall reasoning of the Tribunal shows a real and rational attempt to exercise its review jurisdiction. Other conclusions might have been open, and it is possible that a different Tribunal might have accepted the applicant’s credibility. However, these points do not establish jurisdictional error.
The fifth jurisdictional error which the applicant contends in his amended application, and which he also addressed in his oral submissions, was that the Tribunal failed to comply with its obligations under s.424A(1) of the Migration Act. The particulars of this contention are:
4.The Tribunal has failed to comply with its obligation under Section 424A(1) of the Act.
a.The Tribunal has considered following pieces of information as the reason, or a part of the reason, for affirming the decision that is under review–:
§ Information regarding to my religious knowledge;
§ I have submitted no documentary evidences;
§ The Tribunal has before it no evidence of the existence of a group called the “Fujian Underground Church Organization”;
§ Information regarding to my schoolteacher, [teacher’s name];
§ Information regarding to my own sister as a teacher;
§ My confusion with regard to my age;
§ Information regarding to police search to my home;
§ Information DFAT (1998) regarding to the stringency of border checking in China; etc.
b.However, the Tribunal failed to give me particulars of those above‑mentioned pieces of information;
c.The Tribunal failed to ensure me to understand why those above‑mentioned pieces of information are relevant to the review, and
d.The Tribunal, particularly, failed to invite me to comment on those pieces of information.
However, the obligation under s.424A(1) does not extend to information which is described in s.424A(3)(a) and (b):
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application;
I am not satisfied that any item of information referred to by the applicant in his particulars, if indeed it is a matter of “information” rather than assessments of the applicant’s evidence, was not information which the applicant gave to the Tribunal for the purposes of the review application in the course of the hearing which he attended. Indeed, in my opinion that was the source of all the information specifically about the applicant which the Tribunal relied upon as part of its reasons for deciding to affirm the delegate’s decision.
In relation to general information not specifically about the applicant, including the information from DFAT identified by the applicant, this was in my opinion clearly within the exemption of s.424A(3)(a).
The sixth contended jurisdictional error in the applicant’s amended application appears as follows:
5.The Tribunal’s decision has, apparently, ignored the most important relevant independent country information, such as–:
a.Amnesty International Report (
b.US Department of State, Human Right Report, China (
The applicant did not elaborate this contention by way of written or oral submissions. I accept the submission of counsel for the Minister that the two reports have not been shown to have been material which was, in fact, presented to the Tribunal or was otherwise part of the material which it was obliged to consider.
In his oral submissions, the applicant made a final submission that he had left the hearing of the Tribunal thinking that his claim was accepted, and that the Tribunal had erred by not warning him that in fact it had not accepted his claims. However, in my opinion the Tribunal was under no general duty to warn the applicant that his evidence might not be accepted or might be assessed adversely against him when the Tribunal made its decision. There is no evidence before me that the applicant has an objective basis for his claim to have been misled. I can find no evidence in the Tribunal’s description of the hearing, which supports a contention that the Tribunal misled the applicant in a way which unfairly caused him not to avail himself of the opportunity to present further material and submissions which was given to him and his agent by the Tribunal.
For the above reasons, I am not satisfied that any of the grounds contended in the applicant’s amended application have been made out, insofar as they raise contentions of jurisdictional error. The Tribunal’s decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding fifty‑four (54) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 June 2006
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