SZGUW v Minister for Immigration
[2008] FMCA 1721
•11 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1721 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether bias, breach of ss.424A or 425 of the Migration Act 1958 (Cth) or other jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230` Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NAJO Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356 |
| Applicant: | SZGUW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1624 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr M Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1624 of 2008
| SZGUW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal, signed on 27 May 2008 and handed down on 5 June 2008, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People's Republic of China, arrived in Australia in December 2004 and applied for a protection visa. The application was refused and he sought review by the Tribunal. The Tribunal as originally constituted (which I will refer to for convenience as the first Tribunal) affirmed the decision. The applicant sought judicial review and the matter was remitted by consent by this Court. The reconstituted (second) Tribunal again affirmed the decision under review. This Court dismissed an application for review, but on appeal, the Federal Court remitted the matter for reconsideration. It is that reconsideration by the Tribunal that is before the Court in these proceedings. The Tribunal invited the applicant to attend a hearing. He did so.
In its reasons for decision the Tribunal referred to the fact that it had before it the Department's file and the Tribunal files including the tape of the hearing before the second Tribunal. The applicant did not attend a hearing before the first Tribunal. The Tribunal summarised the applicant's claims in writing accompanying his protection visa application and set out in some detail his evidence at the two Tribunal hearings.
In the statement accompanying his protection visa application the applicant claimed that he had been persecuted in China in particular by the Fuqing City government for reason of his membership of a particular social group, consisting of “farmers of deprived land fighting for living right.” He claimed that in 1992 a particular economic zone had acquired “10,000 square kilometres” (sic) of land without the consent of the farmers or related government approval. In 2000 his house and the house of another named person had been demolished and their belongings confiscated so that they had nowhere to live. They were fighting the government to protect farmer’s rights. Fees were paid to the farmers, but the farmers had sued the government to protect their rights over a period of eight years. He claimed that 30 members of the group had been detained, arrested and sentenced.
On 20 June 2003 300 farmers who had lost their land gathered together to protest after an “unsatisfactory” inquiry and publicity. He claimed that the government sent hundreds of police and others out to supervise him and other delegates fighting for farmers. The applicant claimed that on 24 June 2003 he and others led 400 farmers to the city government to seek a solution. Many armed police arrived. The applicant claimed that they arrested him and the named person and 20 other representatives and that he was detained for 10 days during which time he was hit and tortured. He claimed that after a month they received a decision from the provincial government refusing to review their appeal. He claimed that two other people “backbone members of the group” had been officially arrested, but that he and the other person had escaped from China. He claimed he had been informed by relatives that the government was trying to arrest them and he feared detention, torture and arrest if he returned.
As indicated, the Tribunal detailed the evidence given by the applicant to the second Tribunal, the contents of a s.424A letter sent to him on 26 October 2006 and the applicant's response to that letter which had raised, in particular, some discrepancies in his evidence and the question of his delay in leaving China.
The Tribunal referred to the fact that in a written submission dated 22 April 2008 the applicant's solicitor/migration agent claimed that the applicant feared persecution on Convention grounds of membership of a particular social group of dispossessed farmers and political opinion based on his involvement in farmers' protests against the resumption of their land. The representative provided the Tribunal with copies of documents headed "notice of detention" and "certificate of release from detention", stating that the applicant had been detained on 24 June 2003 until 3 July 2003.
The Tribunal also referred to country information provided to it by the applicant's representative and a further submission of 21 May 2008 addressing the applicant's residence at particular times, which was said to have been described incorrectly in the protection visa application. It also addressed the applicant's claims about where he lived, in what circumstances and whether he was living in his ancestral home or his wife's ancestral home.
The Tribunal detailed what occurred at the hearing it conducted. The Court has before it a transcript of the Tribunal hearing which appears to be a complete transcript, including both what was said in English and the correct translations of what was said in Mandarin. I will return to what occurred in the hearing in considering the grounds raised by the applicant.
In its findings and reasons the Tribunal commenced by considering the approach to be taken to claims made by putative refugees. It stated however that, as it had indicated to the applicant in the course of the hearing, it considered there were good reasons for concluding that the claims made in the statement accompanying his protection visa application were not true. In forming a view about the applicant's credibility, the Tribunal took into account his claims that he was not well educated, that he did not know how to say some things in Mandarin, and that because he did not know the law he did not know how to say things in accordance with the law. However, the Tribunal found that, as it had put to the applicant, it did not accept that his lack of education explained his claimed inability to remember events in which he claimed to have been involved. It did accept that his level of education may explain the fact that at both hearings he had been very vague with regard to dates (for example as to when he moved to live with his wife's family in a named place) but observed that it was conspicuous that the applicant claimed to be able to remember the specific dates mentioned in the statement accompanying his original application. The Tribunal formed the view, which it had put to the applicant in the course of the hearing, that while he was able to repeat what was in the statement he was not able to explain it or go beyond that account.
The Tribunal gave as an example the claims the applicant made in relation to the area of land acquired by the economic zone. In the protection visa application and at the hearing before the second Tribunal, the applicant had claimed that the zone had acquired “10,000 square kilometres” of land. The Tribunal recorded that at the hearing it had put to the applicant that his representative had produced a document (country information) suggesting that the zone itself had a developed area of only 10 square kilometres. The applicant claimed that this was perhaps a mistake made by his friend who helped him to prepare his application. However when the Tribunal noted that the claim had been repeated at the hearing before the second Tribunal in 2006, the applicant confirmed the claim, suggesting that perhaps the reference to 10 square kilometres in the document produced by his representative was a mistake. On his evidence the Tribunal was of the view that the applicant clearly had some conception of the measurement of area. It preferred the evidence in the document produced by the applicant's representative that the zone had a developed area of only 10 square kilometres. The Tribunal considered that in claiming that 10,000 square kilometres had been acquired the applicant was “simply repeating what had been said in the statement accompanying his original application without regard for the truth.”
The Tribunal also referred to difficulties it had with the applicant's claims about what occurred in June 2003, including that he had been unable at the hearing to explain how, if hundreds of police and public servants and leaders were carrying out 24 hour supervision of himself and others, they had been able to lead 400 farmers to the city government. It had regard to his inability to give any details at all with regard to his claimed involvement in eight years of appeals to the city government, provincial government and the central government in Beijing. It had put to him that it considered that these would have been significant events in his life and that if he had been telling the truth he would be able to remember something about them. It did not accept his explanation was that he had now been in Australia for some years, had a job in the building industry and did not think much about what had happened in China. The Tribunal did not consider that this explained the applicant’s inability to go beyond anything that was said in the statement accompanying the original application. The Tribunal considered that someone else had drafted the statement and that it bore “no relationship to the truth.”
The Tribunal also had regard to changes in the applicant's evidence in what it described as significant respects in relation to details of the land on which he claimed he had worked at particular times, his earnings from farming and the area of the land that he had owned. It considered that these changes were relevant to his credibility. It did not accept the claims made in the statement accompanying his protection visa application were true.
The Tribunal then addressed the documents that had been submitted to it by the applicant's representative, purporting to be copies of a notice of detention and a certificate of release from detention issued by the Fuqing City Public Security Bureau. The originals of these documents had been produced at the hearing. The Tribunal referred to the fact that, as it had put to the applicant, the Department of Foreign Affairs and Trade had advised that any official document could be bought or forged in China and had suggested that little evidentiary weight could be placed on any official Chinese document. The Tribunal addressed the applicant's explanation that the documents were real or true documents, and that he was one of the truthful people, but, for reasons given, did not accept that he was one of the “truthful people” and having regard to the advice of the Department of Foreign Affairs and Trade, did not give the documents great weight and did not consider that they outweighed the problems the Tribunal had with the applicant's own evidence.
The Tribunal accepted that the applicant was a farmer from China, but not that he had moved from one village to another because his ancestral home in the first village was confiscated and demolished or because any land he owned in either village was compulsorily acquired, whether for the economic zone or for any other purpose. It found the applicant moved from one village to another because his wife's parents did not have a son and his wife's father had passed on the land in the second village for him to farm. Having regard to the applicant's evidence at the hearing the Tribunal did not accept that he or his relatives were involved in appeals to any level of government in relation to the compulsory acquisition of land or that he was a member of any group or organisation formed by farmers to protect their rights. Nor did it accept his claims about involvement in leading farmers to protest, that he was supervised, arrested and detained for 10 days, tortured, beaten or mistreated. In this respect it had regard to the fact that the applicant had altered his evidence in relation to the manner in which he claimed to have obtained his release from detention at two different Tribunal hearings.
The Tribunal found that the fact that the applicant had obtained a passport in what he claimed was his true identity cast doubts upon his claims about arrest and detention, having regard to country information it had put to him that a person who had come to the adverse attention of the government would have difficulty in obtaining a legal passport. It had regard to the applicant's explanation that he had used his wife's household registry as his address when he obtained his passport, but also to the fact that he had told the Tribunal that he had entered into his wife' household registry long before he claimed to have been arrested and detained in 2003. Hence it did not accept that any adverse records would not have been apparent to the PSB in the applicant’s place of registered residence.
The Tribunal also addressed the applicant’s claims that he paid money to obtain a passport and had the assistance of a friend, but referred to country information which led it to remain of the view that the fact that he obtained a passport in his own name cast doubts on his claims about arrest and involvement in a protest. It reiterated that having regard to the advice of the Department in relation to documents it did not give great weight to the documents and did not consider they outweighed the problems it had with the applicant's evidence.
As the Tribunal did not accept the applicant's claims about arrest and detention and having come to the adverse interest of the Chinese government before he was issued with a passport, it did not accept that the police were still looking for him. It did not accept that the applicant was ever involved in farmers' protests in relation to land issues or in any other government protests or appeals in China, or that there was a real chance he would be involved in such activities on return. Nor did it accept that the applicant's relatives had been involved as claimed, or that there was a real chance the applicant would be imputed with an anti-government political opinion as a result of involvement of his relatives. The Tribunal concluded that it did not accept there was a real chance the applicant would be arrested, detained, tortured or otherwise persecuted for reason of real or imputed political opinion if he returned to China now or in the reasonably foreseeable future.
The Tribunal also considered the applicant's claims based on membership of a particular social group consisting of farmers of deprived land fighting for living rights or of dispossessed farmers. However, to the extent that the persecution feared by the farmers was being dispossessed or deprived of their land, the Tribunal considered that the suggested particular social group used the feared persecution to define the group in a way that was not permissible having regard to Applicant A and Another v Minister for Immigration & Ethnic Affairs and Another (1997) 190 CLR 225 and Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387. For the reasons given, the Tribunal also did not accept that the applicant was involved in fighting for the living rights of farmers or that there was a real chance he would be involved in such activities if he returned to China.
Nor on the evidence before it did the Tribunal accept that “farmers” as a particular social group were persecuted for reasons of their membership of that group in China, having regard to information put before it by the applicant's adviser. Notwithstanding the claims to that effect, the Tribunal considered that the material put before it in fact suggested that farmers were treated in the same way as everyone else in China and that urban residents were equally affected by problems caused by requisition of land.
The Tribunal concluded that it had considered the applicant's claims in their totality, but for reasons given, did not regard him as a credible witness and did not accept his claims. It did not accept that he had a well-founded fear of being persecuted for a Convention reason if he returned to China now or in the reasonably foreseeable future.
The applicant filed an application in this Court on 25 June 2008 seeking review of the Tribunal decision. He filed an amended application on 2 September 2008 and he made oral submissions which raised other issues which I have considered. The first ground in the amended application takes issue with the Tribunal's reliance on the advice of the Department of Foreign Affairs and Trade to reach the conclusion that the notice of detention and certificate of release from detention were not “true” documents. Additional copies of those documents were annexed to an affidavit filed by the applicant in these proceedings. It was claimed that the Tribunal neglected the fact that although in China any official document could be bought or forged, that did not necessarily mean that the documents provided by the applicant were also bought or forged.
In the hearing the Tribunal put to the applicant the information from the Department of Foreign Affairs and Trade suggesting that any official document could be bought or forged in China and that little evidentiary weight could be placed on any official document. It had regard to that advice and also to his explanation that the documents were real or true and that he was one of the truthful people, but for the detailed reasons it had given, did not accept that that was so. It was in those circumstances that it did not give the documents great weight and did not consider that they outweighed the problems that the Tribunal had with the applicant's own evidence.
These Tribunal's findings were based on country information and its view of the applicant's evidence. Such findings were open to it on the material before it for the reasons that it gave. Findings as to the weight to be given to particular items of evidence are a matter for the Tribunal and do not establish jurisdictional error as such. (See Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]). This is not a case in which the Tribunal failed to consider documents or made findings that documents were fraudulent or forged without more. I note that the concerns that the Tribunal had about the documents were put to the applicant for comment at the Tribunal hearing. Ground 1 does not establish jurisdictional error.
Ground two is that the Tribunal neglected the fact that a “low-educated farmer may not have the sense of measurement about what 10,000 square kilometre’s mean, because of the confusion between the concept of “square kilometres” and “square metres.”” However, in this case the Tribunal had regard not only to the fact that in the statement accompanying the protection visa application the applicant had made the claim about acquisition of 10,000 square kilometres of land, but also to the fact that he had also repeated this figure at the hearing before the second Tribunal in 2006 and he clearly had some conception of the measurement of area, since he was able to say that he had owned between 20,000 and 30,000 square metres of land, and acknowledged that 10,000 square kilometres was a very big area.
The Tribunal's rejection of the explanation for the inconsistency in the applicant’s evidence was open to it on the material before it and this ground is not made out. The Tribunal did not fail to have regard to the possibility that the applicant may not have a sense of measurement.
I note generally that in so far as the applicant now purports to take issue with the Tribunal's findings on the basis that there may be an alternative explanation for certain inconsistencies, the Tribunal gave the applicant an opportunity to explain and comment on issues of concern at the hearing. It has not then been established that the Tribunal failed to consider the explanations for inconsistencies provided by the applicant.
Ground 3 is that the Tribunal “put the doubts upon the applicant” but did not give him a chance “to explain and response to it.” In particular issue is taken with the fact that the Tribunal did not ask the applicant to give comments or respond, either orally or in written form, in or after the Tribunal hearing. Insofar as this suggests that the Tribunal should have put its provisional reasoning to the applicant, there is no obligation on the Tribunal under s.425 of the Act to give a running commentary on the applicant's evidence or to put to him what it thinks about the evidence being given at the hearing. (See SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152 at [48]). However in fact the transcript reveals that the Tribunal did thoroughly discuss and raise its doubts with the applicant at the hearing as it proceeded and gave him a chance to provide explanations.
If this ground is intended to raise s.424A or s.424AA, the doubts expressed by the Tribunal about the applicant's evidence were not information within s.424A(1) of the Act (as information does not include the Tribunal's subjective appraisals or thought processes as considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). The Tribunal was not obliged to put its doubts to the applicant under s.424A and hence no issue of the application of s.424AA arose. I note that the second Tribunal had sent a s.424A letter to the applicant to which he had an opportunity to respond and the Tribunal (as constituted on the third occasion) had regard to that letter and to the applicant's response in its reasons for decision. This ground is not made out.
In oral submissions the applicant raised a number of issues, some of which overlapped with the grounds in the amended application. The applicant reiterated his concern about the fact that the Tribunal did not accept that the documents he had provided were genuine, a matter addressed in ground 1, which I have considered above.
The applicant also took issue with the Tribunal's approach to what it considered to be inconsistencies between his evidence at the first and second hearings. He claimed that he was not given an opportunity to comment on those inconsistencies. Whether or not the Tribunal was under such an obligation, it is clear from the transcript and the Tribunal account of the hearing that the applicant was given an extensive opportunity to comment on various inconsistencies in his evidence. There was no obligation on the Tribunal under s.424A to put such inconsistencies to him in writing.
The applicant also endeavoured to provide an explanation for what the Tribunal regarded as deficiencies in his evidence based on the fact that he was not a lawyer, just a farmer, and did not have a good education. He seemed to suggest that the Tribunal had had an inappropriate expectation of the accuracy of his evidence over time in all of the circumstances or that it had failed to take into account his particular characteristics and the possibility he might make mistakes.
However, as set out above, at the start of its findings and reasons the Tribunal set out the law in relation to the liberal attitude called for on the part of the decision-maker (see Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J). It also noted that this should not lead to an uncritical acceptance of any and all allegations made by applicants and that the Tribunal was entitled to attribute greater weight to one piece of evidence as against another.
Having outlined these and other principles the Tribunal expressly considered and took into account the applicant’s lack of education, his claim that he did not know how to say some things in Mandarin and that he did not know how to say things in accordance with the law. However, as it explained, it did not accept that his lack of education explained his claimed inability to remember events in which he claimed to have been involved beyond the specific events claimed in the statement accompanying the original application.
The Tribunal took these matters into consideration. The applicant’s contentions are not such as to establish that the Tribunal erred in the manner in which it assessed either those factors or the applicant's evidence.
The applicant also suggested that he did not have the assistance of a lawyer. However it is apparent from the Court Book that he did in fact have the assistance of a lawyer/migration agent when the matter was before the Tribunal. While he took issue with the extent to which that had assisted him, it is apparent that the migration agent made written submissions, provided documentation to the Tribunal and accompanied the applicant to the hearing. There is nothing in the applicant’s lack of legal qualifications or what he said about the legal assistance with which he was provided, that establishes jurisdictional error on the part of the Tribunal.
The applicant reiterated his concern about the Tribunal's approach to the area of land acquired, endeavouring to provide an explanation that he did not think much about these things, just told the Tribunal whatever he could think of and that it had been a long time. The explanations that he now seeks to provide do not establish that the Tribunal fell into jurisdictional error on the material before it at the time of the decision and based on the evidence of the applicant. I have already discussed this issue in considering the grounds in the amended application.
The applicant also took issue with doubts expressed by the Tribunal in the course of the hearing as to where he lived and the reasons he had moved from his village to another village. If the applicant takes issue with the Tribunal factual findings, those were matters for the Tribunal. The findings were open to the Tribunal on the material before it, for the reasons which it gave. The applicant my have been referring to the fact that the his representative had provided the Tribunal with fresh information in relation to the addresses at which he had lived, contrary to the information provided in his original protection visa application and some explanation in that regard. The Tribunal considered those issues. It outlined the evidence given both by the representative and by the applicant at the hearing. It had regard to his lack of education in accepting that that may provide an explanation for his vagueness in relation to dates such as when he moved to live with his wife's family. It made findings as to which aspects of those claims it accepted and which aspects it did not accept, in particular finding that he had moved from one village to another because his wife's parents did not have a son and his wife's father passed on land for him to farm. The concerns raised by the applicant do not establish jurisdictional error on the part of the Tribunal.
The applicant raised as part of an explanation for what the Tribunal perceived as mistakes or deficiencies in his evidence, the fact that he had been in Australia for a long time and that he was discussing past events. However, the explanations that he now provides, some of which were provided to the Tribunal in relation to particular events, do not establish jurisdictional error or that the Tribunal was compelled to accept those explanations. For example, the Tribunal had regard to his inability to give any details at all about his claimed involvement in eight years of appeals to various levels of government. He provided an explanation that he had been in Australia for some years, had a job in the building industry and did not think much about what happened in China as to why he was unable to describe these events beyond repeating what was in the statement accompanying the original application. The Tribunal considered but did not accept this explanation, having regard to the significance of such events and its view that if the applicant were telling the truth, he would have been able to remember something about them. There is nothing in the material before me to suggest that the Tribunal failed to consider aspects of the applicant's claims and explanations that he provided in the manner that he now seems to be contending. In so far as he seeks merits review, merits review is not available in this Court.
The applicant took issue generally with the conduct of the Tribunal hearing. I considered whether what the applicant said and material before the Court was such as to establish a failure by the Tribunal to comply with its procedural obligations, in particular under s.425 of the Act, or whether the circumstances were such as to establish either actual or apprehended bias.
In relation to bias, the applicant contended that the Tribunal did not believe him from the start of the hearing and that it had made up its mind. There is, however, nothing in the material before the Court, including the transcript of the Tribunal hearing, to establish actual bias in the sense considered in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. As Gleeson CJ and Gummow J said at [72]:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
Their Honours continued:
Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
In this case the evidence does not establish that the decision maker approached his function with a closed mind so that notwithstanding whatever evidence or arguments were put before him his predetermined decision would not vary. Nor are the circumstances such as to establish apprehended bias on the part of the Tribunal from the perspective of the appropriately informed and fair minded lay observer or that such an observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision. (See Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982). On the contrary, it is apparent from the transcript of the Tribunal hearing that after explaining the context of the hearing, the Tribunal informed the applicant that it would consider relevant information and ask questions, but that it was not doing this because it had not made up its mind about those matters, but in order to be fair to the applicant and give him an opportunity to respond. The Tribunal also indicated to the applicant that if he needed a break at any time, he should just say so; that if he did not understand any of the questions to ask for clarification; that he was represented and could consult his migration agent/solicitor at any time in the course of the hearing; and that his representative would have an opportunity to comment if she thought there were certain areas that had not been mentioned during the hearing.
The Tribunal then commenced to question the applicant on aspects of his claims. In so far as the applicant took issue with the manner in which the Tribunal raised issues about his claims, in NAJO Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356, a Tribunal member was plainly sceptical of the appellant's claims and took a fairly vigorous approach in testing them. However Moore J found that this fell well short of establishing that the Tribunal approached its consideration of the claims with a closed mind. I note that no specific matters have been identified by the applicant. The claims which he makes in this respect and the other concerns he expressed today are not such as to establish either actual or apprehended bias.
Finally I have considered s.425 of the Act. The applicant's contention in this respect is that there may have been, although he could not identify them, some difficulties in translation in the hearing. He also suggested, and this was a suggestion raised with the Tribunal, that his poor Mandarin may have been an issue. He was not able to point to any particular difficulties, notwithstanding that the transcript he relies on contains both English and a translation of what was said in Mandarin. Rather he referred to the fact that in the documents he himself had provided there was what he described as an error in the translation into English, in that the certificates as translated stated that he was taken into detention on 24 June 2003 but also stated that the period of detention was from 23 June 2003 to 3 July 2003. This inaccuracy of itself is not material to the contention that the applicant makes about the hearing, except that he suggested that if the professional interpreters could get it wrong, then there may have been a problem in the Tribunal hearing. The transcript before the Tribunal and the submissions of the applicant are not such as to establish such incompetence or difficulties in interpretation that the applicant was effectively prevented from giving his evidence in the sense considered in Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, or that there were errors material to the conclusions reached by the Tribunal. (See Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230). No failure on the part of the Tribunal to afford the applicant the hearing required under s.425 of the Act has been established.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4000. There is nothing in the circumstances before me to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 24 December 2008