SZGWM v Minister for Immigration

[2006] FMCA 1161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGWM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1161

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – use of interpreter – role of interpreter – standard of interpretation – dialect of interpreter.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 91X, 425, 427, 483A

Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
NAIF v Minister for Immigration [2003] FMCA 458
Perera v Minister for Immigration [1999] FCA 507
Singh v Minister for Immigration (2001) 115 FCR 1
Soltanyzand v Minister for Immigration [2001] FCA 1168
VWFY v Minister for Immigration [2005] FCA 1723
WACO v Minister for Immigration [2003] FCAFC 171

Applicant: SZGWM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2035 of 2005

Judgment of: Lloyd-Jones FM

Hearing dates: 13 June 2006, 5 July 2006

Delivered at: Sydney

Delivered on: 13 October 2006

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Fuqing interpreter

Advocate for the Respondents: Ms T Quinn

Solicitors for the Respondents: Phillips Fox Solicitors

ORDERS

1. The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.

2. The application for judicial review filed 2 August 2005 is allowed.

3. A writ of certiorari issue quashing the decision of the second respondent handed down on 7 July 2005.

4. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent, dated

   
   

   3 February 2005.

5. The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2035 of 2005

SZGWM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 2 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 17 June 2005 and handed down on

   
   

   7 July 2005, affirming the decision of a delegate of the first respondent made on 3 February 2005, refusing to grant the applicant a Protection (Class XA) visa.  The applicant seeks relief against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGWM”.

Background

1. The Tribunal decision of Mr Rodney Inder, reference N05/50673, provides the following background information. The applicant, who claims to be a citizen of The People’s Republic of China (“the PRC”), arrived in Australia on 29 May 2004. On 9 July 2004, she lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 3 February 2005, a delegate of the Minister refused to grant a protection visa and on 28 February 2005, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 84)

2. The applicant claims to fear persecution because of her involvement in the “Shouter Group”. She made the following statements in support of her claims:

   a)Her mother was a pious Christian in the Shouter Group and took the applicant and her siblings to secret religious gatherings. (CB 86)

   b)In 1975, her mother was arrested by the Public Security Bureau (“PSB”) for her involvement in this group and was held in detention.  She subsequently passed away due to a serious heart condition which had been aggrevated by the birth of another child, and torture and mistreatment during detention. The applicant was 10 years old when her mother passed away. (CB 87)

   c)In 1983, the Shouter Group were banned by the authorities.  When her brother was organising a protest on 4 August 1983, against these new restrictions, there was a raid on the applicant’s house, but the brother was able to escape through a back door when the police arrived.  The brother was later knocked down by a police car and killed.(CB 87)

   d)The applicant’s first child was born on 7 December 1985 without a birth permit as the applicant was not legally married.  This resulted in a fine from the Birth Control Office.  The applicant became pregnant again, which required her to have the child in secret in a small village away from her home.  However, this was discovered and she was forced to be sterilised and pay a substantial fine.(CB 87)

   e)The applicant claims the operation was unsuccessful and she became pregnant again.  She declined to have an abortion due to her religious beliefs and was again forced to have her child in secret in a remote village.(CB 87)

   f)The applicant was forced to have a second sterilisation operation which badly affected her health. During this period of convalescence she became more deeply involved in the activities of the underground Shouter Group.(CB 87)

   g)In January 1993, she set up her own bible study group which consisted mainly of victims of the birth control.  This group grew to 67 members in five villages.(CB 88)

   h)The applicant organised the distribution of illegal religious material, and was arrested and placed in detention on 6 April 1996.  Her husband had to raise RMB10,000 to bribe a police officer for her release.(CB 88)

   i)After her release, the applicant became aware that she was under PSB surveillance and it became impossible for her to continue her religious practice in her hometown.  In July 1996, she moved to Puding County, Guizhou Province and worked in a small hotel run by another secret member of the Shouter Group.  This came to the attention of the authorities, which again resulted in her detention.  She fled detention with a view to escaping to Australia.(CB 88-89)

The Tribunal’s findings and reasons

1. The Tribunal did not accept that the applicant was a prominent member of the Shouter Group in the PRC, because she had no real knowledge of the religion and her claims were unsupported by documentary evidence. It found that she only had attended church in Sydney to strengthen her claims. It therefore disregarded her conduct in Australia under s.91R of the Act.

2. The Tribunal was satisfied that the applicant was of no interest to the authorities in the PRC and referred specifically to the inconsistent information she had provided to the Tribunal about obtaining her passport.(CB 104)The Tribunal also considered the applicant’s claim of forced sterilisation but found that she would not be persecuted because she had breached the one child policy.(CB 106-107)

Application for review of the Tribunal’s decision

1. On 2 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act. On 10 November 2005, the applicant filed an amended application containing the following grounds:

   (particulars of fraud or bad faith it alleged (Order 54B, rule 2 Federal Court Rules)

   1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error;

   2.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

   Particulars

   1.The Tribunal failed to comply with its obligation under s424A(1) of the Act.

   (a) I believe that the following pieces of “information” should be considered under s424(1) of the Act.

   (i)   While the Tribunal sought to explore my views about my faith, I failed to give any indication that I had any real knowledge of the Bible or the Christian religion;

   (ii)  I did not have any evidences from China in support of my claims except several letters about my involvement in the church in Sydney;

   (iii) The central matter is whether for my religious belief or any other reason I could experience serious harm amounting to persecution for a Convention reason if I return;

   (iv) I legally obtained my passport and then left China;

   (v)   I provided no evidences regarding to my sufferings from cruel policy of birth control and being forced sterilization;

   (vi)Relevant independent country information;

   (b) The issue is that the Tribunal, according to s424A of the Act (1) must:

   (i)   give me particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and

   (ii)  ensure that I understand why those pieces of information are relevant to the review; and

   (iii) invite me to comment on them.

   (c)   I never ever believe that the Tribunal, at any stage, clearly gave me the particulars of the information listed in above.  I accepted the Tribunal indeed asked me a few of questions in relation to the information.  However, the Tribunal has, apparently, failed to ensure me to understand why those pieces of information are relevant to the review; and the Tribunal has, definitely, failed to invite me to comment on the information.

   (d)   As a matter of fact, it is definitely unfair if the Tribunal just simply discussed with me about some issues at the hearing; because I must need sufficient time (at least 28 days) to carefully think about some issues, such as the issue regarding to my religious faith and knowledge and understandings of the Bible or the Christian religion; or the issues regarding to the documentary evidences, which the Tribunal has regarded the as the reasons or part of the reasons to affirm the decision under review, and I had to need time to provide my comments and try my best to seek any necessary information or evidences in support of my claims.

   2.The Tribunal ignored important information and evidences which strongly supported my claims:

   (a)   The Tribunal ignored important independent country information, such as US State Department’s Report on Human Rights in relation to Freedom of Religion in China;

   (b)   The Tribunal has, apparently, made a bias assessment regarding to 3 supporting letters from the church in Sydney.

   (c)   As a matter of fact, the Tribunal was of a view that to explore my views about my faith and real knowledge of the Bible or the Christian religion is very important for its decision.  If it was the case, the Tribunal could easily find the answers to those issues by contacting people in the church in Sydney, such as writers of 3 supporting letters, or even the priests or other leaders of the church in Sydney, because they have jointly participated in religious practices together with me since I came to Australia.  Unfortunately, the Tribunal failed to do so.

   3.The Tribunal failed to comply with its obligations under s425 of the Act.

   (a) Under s425 of the Act, I should have two common rights at the hearing before the Tribunal as follows:

   (i)   To give oral evidence, and

   (ii)  To present arguments relating to the issues arising in relation to the decision under review.

   (b)   Firstly, I got some troubles during the hearing, because I could not well understand the interpreter at that time for the reason that I normally speak my dialect (Fujianese) in most time of my life ane I actually could not understand Mandarin very well; and

   (c)   Secondly, the Tribunal failed to clearly gave me the particulars of the information listed in above.  The Tribunal failed to ensure me to understand why those pieces of information are relevant to the review; and the Tribunal  has, in fact, deprived of my comment rights to comment on the information.

   4.As a matter of fact, the Tribunal erred in a number of respects, including, that it

   (a)   failed to properly determine my application including whether the harm feared amounted to persecution and whether that fear was “well founded”

   I do indeed have a real chance of being persecuted on my return, and my fear of persecution must be well-founded.

   (b)   misunderstood my claims and failed to consider an essential claim in the application.

   I do indeed have sound religious knowledge, and I have been a major activist in the Local Church (“Shouters”) in China, which is the main reason why I fear to return.

   (c)   asked itself a number of wrong and irrelevant questions, failed to identify and consider the relevant issues to be determined, and incorrectly assessed my credibility.

   As I have mentioned above, the Tribunal completely ignored the fact that I got some troubles during the hearing, because I could not well understand the interpreter at that time for the reason that I normally speak my dialect (Fujianese) in most time of my life and I actually could not understand Mandarin very well.

   5.In summary, I never ever believe that the Tribunal has assessed my application fairly and carefully.

Reasons

1. The applicant is a self-represented litigant and appeared with the assistance of a Fuqing interpreter.  The matter was originally listed for final hearing on 10 May 2006 with a Mandarin interpreter.  The Court was advised by the Court-appointed interpreter that the applicant could not understand the interpreter and requested a Fujian interpreter.  The hearing was adjourned to 13 June 2006.  On that date, the Fujian interpreter advised the Court that they had difficulty communicating and conveyed that the applicant requested a Fuqing interpreter.  The interpreter had been able to determine before the hearing that the applicant spoke Fuqing and only had a limited understanding of Fujian.  The interpreter indicated to the Court that she was not fluent in Fuqing.  Consequently, I adjourned the hearing to 5 July 2006 in order to enable it to proceed with a Fuqing interpreter.

2. The original visa application filed with the Department on 9 July 2004 was completed by Priscilla Yu of Priscilla International Co Pty Ltd on behalf of the applicant.(CB 1-35)  Question 8 of Form C of that application reads, “If you are called for an interview will you need an interpreter?”.  The applicant answered “Yes”.  In answer to the sub-question “In what language or dialect”, the applicant answered “Chinese/Mandarin”.

3. The Court file contains an information sheet completed by unrepresented litigants which the applicant completed at the first court date.  On that information sheet, the applicant indicated that she needed an interpreter in the following language: “Mandarin (Fuqing preferred)”.  Similarly, on another form on the Court file in relation the free legal advice scheme, the applicant completed that she needed an interpreter in “Mandarin – would prefer Fujian dialect”.  This was subsequently crossed out and replaced with “Fuqing”.  Finally, the confirmation form from the panel lawyer who provided the advice states that a Mandarin interpreter was available for that meeting.

4. The Tribunal records in its decision under the heading ‘Claims and Evidence’ that the applicant was accompanied to the Tribunal hearing of 21 April 2005 by her daughter, a witness and a supporter.(CB 86)  There is no reference in the Tribunal decision as to whether the daughter, witness or supporter gave evidence.  Neither is there indication that any of these parties raised with the Tribunal that there were problems with the interpreting service or that the applicant was experiencing difficulties with the language used.

5. The application to the Tribunal filed on 28 February 2005 was again completed with the assistance of Priscilla Yu, migration agent.   Ms Yu was authorised to act for the applicant in relation to that application.  In response to the question on the application form, “Do you need an interpreter?” the applicant answered, “Yes”.  In response to the question, “If yes, in what language?” the applicant answered, “Chinese”.  For “Dialect” the applicant answered, “Mandarin”.(CB 48-51)

6. On 17 March 2005, the Tribunal invited the applicant to a hearing.(CB 58-59)  Attached to that invitation was a response to hearing form which appears to be completed by Priscilla International Co. Pty. Ltd. including that an interpreter would be required in Chinese, Mandarin.(CB 60)

7. After the Tribunal hearing, Priscilla International Co. Pty. Ltd. wrote to the Tribunal on 2 May 2005 attaching a letter from the applicant.(CB 63-64)  The typed letter contains the following statement:

   I attended a hearing before the Tribunal on 21 April 2005.  Unfortunately, I got some troubles during the hearing, because I could not well understand the interpreter at that time.  I am actually from countryside of Fujian province, and I normally speak my dialect (Fujianese) in most time of my life.  I actually could not understand Mandarin very well, and therefore I really could not understand what the Tribunal member say during the hearing and I always misunderstood him.

   I therefore request that -:

   1.    Could the Tribunal arrange another hearing for me with the assistance of an interpreter who is able to speak my dialect?

   2.    Could you please send me a copy of the record tape in relation to my hearing on 21 August 2005?(CB 64)

8. The Tribunal responded on 11 May 2005, advising that the scheduled handing down of its decision had been cancelled.  However, a new hearing was not to be scheduled as requested for the following reasons:

   When the response to the Hearing Invitation was received on 4 April 2005, the Applicant/adviser specified in 2b. of the form that a Chinese interpreter with a Mandarin dialect be used, and the Tribunal facilitated this;

   The Tribunal member very specifically asked the interpreter at the beginning of the hearing to notify him if there was any difficulty in the translation and, on several occasions during the hearing, the interpreter complied with this request;

   After using the interpreter for some time at the hearing, the Tribunal asked both the Applicant and the interpreter if they had any difficulty understanding each other.  When the Applicant responded, her answer did not make much sense to the interpreter so the Tribunal asked that the answer be clarified.  The Tribunal then simply asked her if the Applicant understood the interpreter.  The Applicant replied very clearly in the affirmative.  The Tribunal told the interpreter that it seemed that there were some problems with the interpreter from her side, and so told the interpreter that if there was any ambiguity or other issues this should be identified and resolved by asking the question a different way or repeating the question: something the interpreter undertook to do.  The Tribunal then asked the interpreter to explain this to the Applicant, which she did;

   The Applicant told the Tribunal at the beginning of the hearing that she had not had much schooling, did not do well at school and did not learn much there and only went to school for 5 years (leaving school in 1978, when she was only 13), and claims she cannot write.  These claims are accepted by the Tribunal which tried in consequence to keep its questions simple, direct and to the point;

   Asked specifically what languages she speaks, reads and writes, the Applicant replied she didn’t.  Asked if she can speak Chinese, Mandarin or Cantonese, the Applicant then clearly replied she can speak Mandarin;

   When on several occasions the Applicant did not appear to fully understand the question being asked, or answered indirectly, the Tribunal repeated the question (usually in a more simple manner) in order to ensure that it was correctly understood and her reply was also correctly understood by the Tribunal;

   In short, given her limited education, the Tribunal went to some lengths to ensure that the Applicant understood what was being asked of her, and that the answers she gave were relevant to the question being asked;

   The Member was fully satisfied during the course of the hearing with the interpreter and the interpretation she provided;

   The interpreter was helpful and fully professional in performing her task, and if at any stage she did not appear to understand the Applicant’s answer, she immediately told the Member so the question could be repeated or rephrased;

   There were several occasions when the Applicant, when asked a specific question, did not respond even after a very long gap.  However, the Applicant did not say or indicate in any way that she did not understand either the question or what she was being asked about, or otherwise indicate that she had any difficulty with the interpretation of the question.  On the contrary, the Tribunal is satisfied that on these occasions the Applicant failure to answer the question was not caused by any difficulty with the interpretation but rather because the Applicant was unable to answer the question put to her;

   Following your request, the Tribunal Member has replayed a copy of the tape of the hearing and is satisfied that, while the Applicant was nervous and at times a quite emotionally upset during the hearing, she understood the questions being put to her and for its part the Tribunal understood the answers she gave to them.

   However, in the interests of procedural fairness, the Tribunal is willing to receive from you or the Applicant another submission which indicates where the Applicant did not understand the question being put to her, what she understood she was being asked, and why she answered the way she did.  Please ensure this submission is received by the Tribunal no later than close of business 25 May 2005, after which the Tribunal will make its decision.

   The Tribunal decision records the contents of the above letter under the heading “Claims and Evidence – Supplementary Submission”.(CB 94-95)

1. I note that the applicant was represented by her migration agent, Priscilla Yu, from the outset at filing the original visa application.  Priscilla Yu of Priscilla International Co Pty Ltd was identified on the original application as the person who completed that application form and authorised to act and receive communications in respect of it.  In that form and subsequent documents, the applicant’s language was identified as Chinese and the dialect Mandarin.  The first time a problem in translation was raised, was in the applicant’s letter forwarded to the Tribunal after the hearing.(CB 64)  In that letter, the dialect identified by the applicant as being her native tongue was “Fujianese”.

2. In this Court, at the first scheduled final hearing of 10 May 2006, a Mandarin interpreter was booked.  The interpretation problem was identified prior to the commencement of the hearing and brought to my attention at the start of the hearing.  The hearing was adjourned, with a request that a Fujian interpreter be booked for the next hearing date.  At the commencement of the adjourned hearing of 13 June 2006, it was again relayed to me that the Fujian interpreter was not suitable and that a Fuqing interpreter would be required.  There continued to be difficulties with the applicant understanding and communicating through a Fujian interpreter.  The hearing was again adjourned and a request that a Fuqing interpreter be booked for the next hearing date of 5 July 2006.

3. Under s.427 of the Act, the Tribunal is required to provide an interpreter where the applicant is unable to give evidence without one: VWFY v Minister for Immigration [2005] FCA 1723 at [8] (“VWFY”). The Tribunal has a statutory obligation under s.425 of the Act to ensure that the invitation to a hearing is “real and meaningful”: Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16] (“P119/2002”).  This includes providing an interpreter of sufficient skill, such that the applicant is not denied his or her rights to a fair hearing: VWFY at [27]. For an applicant to establish that they have been denied a fair hearing because of interpretation problems, they must show one of the following:

   a)The standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal; or

   b)Errors made in interpretation at the Tribunal hearing were material to the conclusion of the Tribunal and adverse to the applicant: P119/2002 at [17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration [1999] FCA 507; Soltanyzand v Minister for Immigration [2001] FCA 1168.

4. When a complaint in respect of an interpreter is raised, the Court should consider whether there is a “correct” translation of the proceedings or document in question available, against which the interpreter’s performance can be compared: VWFY at [10]. In making any comparisons, it is enough if the translation is sufficiently accurate such that the idea or concept translated has been communicated: NAIF v Minister for Immigration [2003] FMCA 458 at [63]; WACO v Minister for Immigration [2003] FCAFC 171 at [26]. Other relevant factors to take into account are the manner of the applicant in their responses, including responsiveness to interpreter answers to questions asked, coherence of those answers, consistency between answers and the case sought to be made and, more generally, any evidence of confusion in exchanges between the Tribunal and the interpreter: Perera v Minister for Immigration at [41] which was applied in VWFY at [11] and P119/2002 at [20].

5. More specifically, the Court must consider whether the interpreter is qualified (eg. Qualification from the National Accreditation Authority for Translators and Interpreters Ltd.), although this is not a conclusive factor as to the adequacy of an interpreter: VWFY at [11].  Another consideration is whether the applicant was denied the opportunity to raise evidence at a hearing because exchanges were not translated for the benefit of the applicant: VWFY at [22] – [24]. Justice Finkelstein found in VWFY that if no one error was severe enough by itself, the combination of errors or deficiencies effectively deprived the applicant of a fair hearing: at [27].

6. In respect of errors in interpretation material to the outcome of the decision, the Court must consider whether the “very substantial part of the hearing before the Tribunal appears to have been fully and accurately interpreted”: P119/2002 at [19]. Further, whether any of the exchanges suggest that the “the interpreter was mistaking important pieces of information or information critical to the applicant's claim as submitted”: NAIF v Minister for Immigration at [41]. Also, whether the difficulties faced by that particular interpreter were “real difficulties that any interpreter would have faced”: P119/2002 at [20].

7. There are a number of factors which suggest that the Tribunal did all it could to ensure that the applicant had a fair hearing.  At all stages prior to the Tribunal hearing, the applicant was assisted by a registered migration agent and a Mandarin interpreter was requested and provided.(CB 49, 60)  The correct procedure was followed – the interpreter was asked at the beginning of the hearing to raise any difficulties he or she experienced during translation.(CB 65)  The Tribunal member also raised the issue about accuracy of translation later in the hearing and gave directions to the interpreter to seek clarification for certain questions directed to the applicant which did not elicit a response.(CB 65)  The Tribunal allowed the applicant to file post-hearing submissions addressing communication concerns to do with the hearing.(CB 66)  Despite this opportunity, the applicant did not seek to amend her answers to the questions put to her by the Tribunal after having access to the Tribunal hearing tapes.(CB 102)  The Tribunal was satisfied that the interpreter was professional.(CB 66) 

8. The Tribunal was satisfied that the interpreter adequately translated questions relating to the Christian Gospel and other religious beliefs.(CB 100)  Nothing contained in the material suggests that the interpreter at the Tribunal hearing was aware that the applicant did not understand Mandarin or that the applicant spoke another dialect.  When this question was specifically put to the applicant, she confirmed that she understood Mandarin.  The Tribunal gave the applicant sufficient opportunities to respond to questions, including repeating them and asking alternative questions in an attempt to avoid confusion or misunderstanding.

9. However, there were a number of exchanges at the Tribunal hearing which are recorded in its decision and raise doubt about whether the applicant was given a fair hearing.  Unfortunately, there is no hearing tape or transcript in evidence in this matter.  The Court is forced to rely on the material contained in the decision record.

10. The first issue arises in respect of the applicant using a false name and how she could have obtained a passport under her real name.(CB 102-104)  When the applicant was asked about this at the hearing, she replied that she did not use her real name in Puding.  While the Tribunal accepted this, it pointed out that she did not use a false name until she left Puding, and that she left China legally on 24 May 2004 on the passport issued in Fujian.  The Tribunal put to the applicant that it was having difficulty understanding that the authorities would have issued her a passport and allowed her to leave China if she had been detained and under police surveillance.  The applicant’s response was that she used a false name in Puding. (CB 102-103)  This exchange indicates that the applicant did not know what was being asked of her and she effectively misunderstood the question.  This may have been a miscommunication, such that the focus was on her use of a false name in Puding, rather than the inference to be drawn from that.  The effect of this exchange was that the Tribunal inferred that the applicant was not arrested or under surveillance in Fujian.(CB  105)

11. The second issue concerns the applicant’s faith and what fears she holds if she were to return to China.(CB 102)  The Tribunal asked the applicant why she was afraid of being identified as a Christian.  The applicant replied that she would be labelled a counter revolutionary.  When asked to explain, the applicant replied that she did not know and that she would say “Jesus, Jesus” but that the authorities did not like it. (CB 102)  It is unclear whether the applicant, by her response, understood the question and directly answered it.  The effect of this exchange was that the Tribunal did not think that the applicant has a well-founded fear of persecution upon returning to China. (CB 102)

12. The third issue concerns the applicant’s faith and her preaching the Christian Gospel. (CB 90-91)  The Tribunal asked the applicant about John the Baptist and the books of the Corinthians.  When the Tribunal repeated its question asking what the role of John the Baptist was, the applicant claimed that she did not understand.  The Tribunal member then the question again this time hinting as to who John the Baptist was and repeated the question about his role in the Christian message.  The applicant did not reply.  This may indicate that the applicant was trying to evade the question and not answer, or alternatively, there may have been a miscommunication in respect of John the Baptist and the books of the Corinthians.  The effect of this exchange was that the Tribunal member concluded that the applicant did not understand the Bible or the Christian faith.

13. The fourth issue concerns the applicant’s spoken language.  Asked specifically what language she speaks, reads and writes, the applicant replied, she did not. (CB 95)  The Tribunal member restructured the question and asked the applicant if she can speak Chinese, Mandarin or Cantonese, which the applicant clearly replied that she could speak Mandarin.  However, the applicant was given a limited choice, with one option being “Chinese” which can be used to cover a range of languages and dialects.  The applicant may have understood that she was being given a choice and was obliged to select one.  The applicant may have simply picked the best alternative open to her on this very limited choice.  However, this question did not go to the applicant’s fluency in Mandarin.  The effect of this response was that the Tribunal was satisfied that the applicant spoke Mandarin, which may have ultimately led to its decision that a further hearing was not required. (CB 94-95)

14. The fifth issue concerns the Tribunal’s approach of repeating questions so as to make them clearer to the applicant when she appeared confused.  In relation to the passport issue, the Tribunal member used certain concepts without clarification before abandoning those lines of questioning and moving to new topics. (CB 102-105)  In relation to the preaching issue, the Tribunal member asked about the role of John the Baptist and then moved on to asking about who wrote the books of the Corinthians. (CB 90-91)

15. I acknowledge that the applicant has received limited education. (CB 90)  There is no information before me about her ability to read, however, I accept that her language skills appear to be substantially limited to Fuqing with a very limited understanding of Fujian and Mandarin.  There is no explanation before the Court as to how the applicant came to be represented by a registered migration agent who represents many Mandarin speaking applicants.  The agent did not bring to the attention of the delegate, the Tribunal or this Court that the applicant cannot adequately communicate in Mandarin and in fact speaks Fuqing.  The agent and the applicant also continued to request the services of a Mandarin interpreter at the respective hearings.

16. The Tribunal member acknowledged that there were difficulties during the hearing because of the Applicant’s lack of responsiveness when matters were translated to her. (CB 95)  It also noted that there was a lack of coherence in some of the answers, which led the Tribunal to raise the issue with the interpreter and to query the applicant. (CB 94-95)  I am not satisfied at the acceptance by the Tribunal of the applicant’s reply to the question about whether she spoke “Chinese, Mandarin or Cantonese”. (CB 95)  Although, Mandarin is the official language of the PRC, it is not necessarily a universal language of that country.  The generalisation that the people of the PRC speak either Mandarin or Cantonese is a gross simplification as Cantonese is only one example of a language or dialect belonging to a particular geographic location of the PRC.  Other dialects are spoken in other PRC provinces and people from those areas may have only limited abilities in communicating in Mandarin. The applicant’s response may have been a result of being faced with only two alternatives.  The applicant’s answer, “Mandarin”, a language which she has limited knowledge of, was chosen over the other option, “Cantonese”, a language she presumably had no knowledge of.

17. I am unable to satisfy myself as to whether the non-responsiveness of the applicant to key questions relating to her passport and her religion were due to a deliberate avoidance in answering the questions, or an inability to answer because she has no knowledge of the subject matter, particularly the questions raised in respect of the church.  Alternatively, whether the applicant was unable to understand the questions asked because of the difficulty with the interpreting service. In the circumstances, I believe that the matter should be returned to the Tribunal.

18. I am satisfied that an order for costs should be made in this matter. 

    
    

    I order that the first respondent pay the applicant’s costs and disbursements of and incidental to this application, fixed in the sum of $2,500.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  12 October 2006