SZGYM v Minister for Immigration

Case •

[2007] FMCA 1418

•

23 August 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGYM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1418
MIGRATION – Application to review decision of Refugee Review Tribunal – interpreter not fluent in particular dialect – hearing conducted in language requested by applicant in response to hearing invitation – whether failure by Tribunal to comply with s.425 of the Migration Act 1958.
Migration Act 1958, ss.424A, 425
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex parte H (2001)75 ALJR 982
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SYYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR 1
SZGYK v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 446
Applicant: SZGYM
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2162 of 2005
Judgment of: Barnes FM
Hearing date: 9 August 2007
Delivered at: Sydney
Delivered on: 23 August 2007

REPRESENTATION

Applicant: In person
Counsel for the Respondents: Mr A. Izzo
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2162 of 2005

SZGYM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 July 2005 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 October 2004.  She applied for a protection visa.  Her husband and adult son each made separate applications for protection visas.  The applications were refused and the applicant and her family members each sought review by the Tribunal. 

  2. In her protection visa application the applicant claimed to be a member of the “Shouters” underground religious group which gathered every Sunday, which the government had “announced to be an underground illegal church” and had started investigating.  She claimed that their home was the place for gathering and that she was the head of the branch.  She claimed that some members were detained in August 2004 and that she and her husband were wanted by the local police and that if caught they would be sent to gaol.  She claimed that her daughter was in hiding in China and that their home had been sealed up by the government. 

  3. In her application for review by the Tribunal the applicant repeated her claim to be wanted by the authorities as a member of the “Shouters” group.  She provided the Tribunal with a document and translation headed Order for Arrest dated 2 November 2004. 

  4. In her protection visa application the applicant had indicated that the only language she spoke, read and understood was Mandarin.  In the review application she indicated that she required a Mandarin interpreter.  She did not specify a dialect.  On 13 April 2005 the Tribunal wrote to the applicant inviting her to attend a Tribunal hearing on 27 May 2005.  In a completed response to hearing invitation form the applicant indicated that she needed a Mandarin interpreter.  No dialect was specified.  Similarly her husband requested a Mandarin interpreter on the forms that he completed. 

  5. However it appears from a Tribunal file note, that in a conversation of 18 May 2005 between a Tribunal staff member and the applicant’s husband (conducted in Mandarin) in relation to whether there would be one hearing or separate hearings on different days for each member of the family, the applicant’s husband stated that they preferred a “Fuzhou” dialect interpreter to a Mandarin interpreter.  It was recorded that the applicant’s husband also said that they could go ahead with a Mandarin interpreter but that it would be with difficulty.  It was recorded that the applicant’s husband confirmed his full understanding of the contents of this telephone call. 

  6. The Tribunal wrote to the applicant on 19 May 2005 confirming that a joint hearing would be conducted on 27 May 2005 so that she, her husband and son would not be required to come to the Tribunal on different days.  The Tribunal stated that “as requested” it would try to arrange a “Fukkien/Fuzhou dialect interpreter” for the hearing.  On 27 May 2005 the Tribunal wrote to the applicant advising that an interpreter in “the Fuzhou dialect” had now been secured for the hearing which would now be on 9 June 2005.  The applicant attended the hearing on 9 June 2005. 

  7. In its reasons for decision the Tribunal recorded that an interpreter who spoke both Mandarin and the Fuzhou dialect had been provided for the Tribunal hearing.  However at the commencement of the hearing the interpreter had raised concerns about the language he would use, as having spoken to the applicants, he did not feel that the Fuzhou dialect was their dialect.  The Tribunal recorded that it raised with the applicants the possibility of the hearings being conducted in Mandarin (noting the references to Mandarin in each protection visa application and the request for a Mandarin interpreter in the response to hearing invitation).  The Tribunal recorded that the applicant husband and wife agreed that they could conduct the hearing in Mandarin, that if they experienced any difficulty with interpreting questions could be repeated and that they were invited to raise their concerns as the hearing progressed. 

  8. The Tribunal also recorded that while the applicant, her husband and son each stated that they were happy to have a joint hearing, they were informed that each was entitled to a separate and distinct hearing. They agreed with the proposal that the Tribunal would explain the hearing process with all three present, but that each would then give evidence without the presence of the others. 

  9. The Tribunal recorded that the applicant’s husband claimed that their travel documents had been organised for them by a “snakehead” and that he and his wife travelled to Australia together.  Thereafter evidence was taken from each applicant individually. 

  10. In its reasons for decision the Tribunal recorded that the applicant stated that she was a Christian, that she had not attended any churches in China because they did not have churches but that at the request of some “sisters” (who she described as believers of Christ) she had provided her home as a venue for religious gatherings.  She claimed that she did not have an opportunity to participate in the meetings and Bible reading activities because she was busy preparing food and drink for those attending.  She claimed such gatherings occurred sometimes on Tuesdays, Thursdays and Sundays.  She also claimed to be illiterate and that hence she could not tell the Tribunal much about the Bible.  She claimed to believe in God and Jesus.  She said she only knew bits and pieces and forgot things, but also stated that the Bible had a New Testament and an Old Testament and that as a Christian if a brother got sick others would visit and help them.

  11. The Tribunal recorded that when it put to the applicant that there were Christian churches in China she claimed they visited a church when they went to the cities but that she had only attended church twice in Australia having only just become aware that there were churches with services in Chinese and Mandarin. 

  12. The applicant told the Tribunal that her husband had been arrested because they had come looking for her but she was not at home, that two of the “sisters” had been arrested because someone had tipped off the authorities about the gatherings and that she feared arrest. 

  13. When asked whether the authorities had attempted to arrest her for “criminal activity” in January 2003 described in the order for arrest she claimed she had stayed away from her home from January 2003 until August 2004 when she travelled to Australia.  The Tribunal also recorded that it discussed its concerns about the authenticity of the order for arrest with the applicant. 

  14. The Tribunal asked the applicant whether there were other things she wished to tell the Tribunal about.  It recorded that she stated that she did not have anything further she wished to raise with the Tribunal. 

Tribunal decision

  1. In its findings and reasons, after referring briefly to country information in relation to the practice of Christianity in the province from which the applicant claimed to have come and the number of registered churches and registered meeting points in that area, the Tribunal summarised the applicant’s claim as a claim to be a Christian and to have organised religious gatherings at her home and that for these reasons the authorities sought to arrest her and that she feared arrest should she return to China. 

  2. However the Tribunal found that the applicant was not credible in respect of key aspects of her claims for protection and as it was not satisfied in respect of these aspects of her claims it concluded that she was not in genuine fear of persecution and that there was not a real chance of persecution on her return to China. 

  3. The Tribunal stated that it considered the applicant’s oral evidence in respect of her religious beliefs and practices to be “equivocal and hesitant”.  It noted that she was unable to provide any meaningful detail on her claimed religious convictions or religious associations, such that the Tribunal was unable to be satisfied that she was a Christian.  It did not accept as plausible her claim that her inability to elaborate on her claimed religious belief was “for reasons that she easily forgets things, is illiterate and that she was unable to participate in the religious gatherings in her home because she was busy preparing refreshments and therefore had limited religious knowledge”.  It also found that the applicant was “not forthcoming” in relation to her religious practices stating that since her arrival in Australia she had attended a church once or twice.

  4. The Tribunal did not accept that the applicant had organised illegal religious gatherings at her home.  It was not satisfied on her evidence that she was a person of particular or strong religious convictions.  It considered her evidence in respect to the claimed religious gatherings to be “minimalist and surreal”.  It was not convinced that her inability to provide detail on these gatherings was by reason of the fact that she was busy with the preparation of food.  It considered that given that she claimed such gatherings were held at her home up to three times a week “whatever hostess responsibilities she may have had, she would nonetheless be able to provide more relevant detail on these religious gatherings”. 

  5. The Tribunal did not accept that the authorities sought to arrest the applicant in China or that they would arrest her on return to China because it did not accept her claimed reason for the authorities seeking to arrest her and because it found her evidence in relation to this claim to be “ambiguous and limited”.  As discussed with the applicant in the hearing, it did not place weight on the claimed arrest warrant, given the “dubious details and format” of that document.  It referred to the fact that the warrant was issued in November 2004 (after the applicant arrived in Australia) but related to criminal activity said to have occurred in January 2003. 

  6. The Tribunal concluded that “considered collectively” these matters led it to reject the applicant’s claim to be a Christian involved in organising illegal religious gatherings who now feared harm from the authorities of the People’s Republic of China by reason of her religion.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason on her return to China. 

This application

  1. The applicant sought review by application filed in this Court on 12 August 2005.  She relies on an amended application filed on 13 October 2005.  She filed written submissions. 

  2. The grounds of the amended application are as follows:

    1.  The Tribunal stated at page 9: “The Tribunal has come to the conclusion that the Applicant is not credible in respect of key aspects of her claims for protection.  Not being satisfied in respect of these aspects of her claims, which are discussed below, leads the Tribunal to conclude that the Applicant is not in genuine fear of persecution nor is there a real chance of persecution on her return to China.”

    The above statement is induced by the actual bias of the officer, there is no evidence and materials to justify the making of the above conclusion.

    2.  The Tribunal’s Satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

    3.  The Tribunal refuse to consider our application in details because my husband and I was illiterate, and the Tribunal could not understand us and did not try to clarify more details from us.

    4. The Tribunal did not observe Migration Act 1958 properly to making the decision.

    The Tribunal did not refer to adequate particulars of the independent information.

    I will provide more documents to support my claims.

  3. This application for review was listed for hearing on 30 January 2007 at the same time as the separate applications of the applicant’s husband (see SZGYL v Minister for Immigration & Multicultural Affairs [2007] FMCA1397) and her son (SZGYK v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FMCA 446). I note that the applicant’s son did not appear on that day or on the date to which his application was adjourned and his application was dismissed for non-appearance.

  4. On 30 January 2007 the applicant’s husband told the Court that while he spoke a little Mandarin he had not understood the Tribunal questioning and that he had told the Tribunal that he needed an interpreter who spoke his dialect, which he said was “Fuqing”.  The same issues were said to arise in relation to his wife, the applicant in these proceedings. 

  5. In light of the issues raised by the applicant’s husband (which were also raised on behalf of the applicant) and the fact that the grounds in the amended application included a complaint of bias and that the Tribunal could not understand the applicants, the hearing was adjourned until 13 March 2007.  The solicitors for the first respondent were ordered to provide a copy of the tapes of the Tribunal hearing to each applicant within seven days.  Orders were made requiring each applicant to file and serve any further evidence on which he or she wished to rely, including a copy of a transcript of the Tribunal hearing, on or before 6 March 2007.  They did not do so. 

  6. On 13 March 2007 the applicant’s husband told the Court that they had not obtained information on how to have the tapes of the Tribunal hearing transcribed until 28 February 2007 and that as it would take three weeks for such tapes to be transcribed there had not been time to do this before the hearing date.  The hearing was adjourned again.  Orders were made for the applicant to file any transcript of the Tribunal hearing by 5 April 2007.  The applicant did not file any further evidence.  It later became necessary to adjourn the hearing until 9 August 2007.  However the applicant did not file any further affidavit evidence or a transcript of the Tribunal hearing. 

  7. At the start of the hearing on 9 August 2007 the applicant’s husband told the Court from the bar table that “someone had told him” the tape recording of the Tribunal hearing which had been provided to him by the respondent’s solicitors in February 2007 (and which he had brought to court) was not his tape and that it was not his voice.  This was the first time such a concern had been brought to the attention of the Court or the respondent’s solicitors. 

  8. In order to clarify that the correct tapes had been provided to each of the applicants and to consider whether any further adjournment was appropriate, part of the tapes were played in open court.  The first tape played (the second of two) commenced with questioning of an applicant.  The applicant’s husband maintained that he was not the person being questioned.  After listening to this tape for some time it emerged that the questioning followed the pattern of questioning described by the Tribunal in relation to the applicant.  I accept that, as the applicant’s husband contended, he was not the person being questioned on this part of the tape.  Rather I am satisfied that it was the applicant.  From the commencement of the first tape it was clear that the hearing tapes provided to each of the applicant and her husband were the hearing tapes that related to the combined hearing of the applicant wife, her husband and son, all of whom were identified at the start of the hearing by name and also by file numbers that accord with the file numbers on Tribunal documents in the material before the Court.  The individual hearing in relation to the husband commenced after the initial process was explained to all three applicants.  After some time the applicant’s husband conceded that this was so and that the correct tapes had been provided to them by the respondent’s solicitors. 

  9. In these circumstances I was satisfied that the applicant had had ample opportunity to obtain a transcript of the hearing had she wished to do so.  While the applicant did not specifically request a further adjournment, I formed the view that no further adjournment was warranted.  I note also that while the tapes were listened to for the purposes of ensuring that they were in fact the correct tapes, nothing on those parts of the tapes that were played in Court led either to a submission from the applicant (or her husband) or to the Court forming the view that it was in the interests of justice or the parties for the tapes to be listened to in their entirety or for further time to be allowed for the production of a transcript in light of the claims made by the applicant.  Those parts of the tapes played accorded with the Tribunal account of the hearings in its reasons for decision.  There was no suggestion by the applicant or by her husband that any interpretation or comprehension difficulties were raised with the Tribunal at any time by either of them. 

The interpreter issue

  1. It is convenient to consider first the argument raised by the applicant husband on behalf of himself and his wife in oral submissions (albeit that it was not raised in the original application, the amended application or in the written submissions) that the interpreter used at the Tribunal hearing did not understand the applicants’ language and that he had asked for a “Fuqing” dialect interpreter and that the Tribunal had provided a “Fuzhou” interpreter.  The applicant husband told the court in submissions that he had not understood the interpreter but that he did not dare say so to the Tribunal.  The applicant submitted that at the Tribunal hearing she did not understand or speak Mandarin and that she was very scared. 

  2. Under s.425 of the Migration Act 1958 (Cth) the Tribunal is under an obligation to invite an applicant to appear before it “to give evidence and present argument relating to the issues arising in relation to the decision under review”. The invitation must not be a hollow shell and a failure to provide an adequate interpreter may in some circumstances mean that the Tribunal has not met its obligations in this respect (see in particular Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 and Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).

  1. However there is no evidentiary basis for such a claim in this case.  The evidence before the Court consisting of the Tribunal reasons for decision does not establish the applicant’s claim.  Moreover, it is apparent that, despite the fact that the applicant had in three prior documents requested a Mandarin interpreter, the Tribunal responded to a request for a “Fuzhou” dialect interpreter as recorded in the file note and as notified to the applicant in two letters before the hearing.  There is no evidence that the applicant requested a Fuqing interpreter before the Tribunal hearing. 

  2. When the Tribunal was made aware by the Fuzhou interpreter (who was also a Mandarin interpreter) that there was an issue about the dialect that the applicants spoke, the Tribunal discussed this matter with the applicants, who agreed that the hearing should be conducted in Mandarin.  There is no suggestion that either the applicant wife or her husband (or their son) raised any concerns or difficulties with the Tribunal about their comprehension or ability to communicate in Mandarin or any other issue about the interpreter or conduct of the hearing (despite being invited to do so) either during the hearing or thereafter.

  3. The applicant has not established that she was “effectively prevented” from giving his evidence (Perera at [38] – [41] or that she was in effect deprived of a hearing by any failure by the Tribunal to provide a competent interpreter (SYYB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 24 at [12] per Mansfield J). There is nothing to suggest that the interpreter provided could not “effectively interpret” the applicant’s statements or the Tribunal’s statements.

  4. Nor is there any evidence of lack of comprehension or communication difficulties such as to support a claim either as to a breach of s.425 or, indeed, actual or apparent bias or any lack of procedural fairness on the part of the Tribunal, insofar as it may be intended to suggest that this was established by the Tribunal proceeding with the hearing without a Fuqing interpreter.

  5. The only claim made by the applicant is that she did not understand or speak Mandarin (despite the content of her protection visa application and prior requests for a Mandarin interpreter).  She had more than adequate opportunity to file further evidence, including a transcript of the Tribunal hearing, to support her claim in this respect.  She did not do so.  The claim made by her husband at the commencement of the hearing on 9 August 2007 that it was “not his voice” on the tape was not such as to persuade me that there should have been an adjournment for further information to be provided.  As indicated above, while the tape was listened to for the purposes of identifying the participants in the hearing, there was nothing in the parts of the tape listened to to indicate that the Tribunal did other than as is recorded in the Tribunal reasons for decision.  Moreover I note that the applicant does not suggest that she told the Tribunal that she was having the difficulties which she now claims that she experienced.  There is no particularisation of any manner in which that may have led her to provide incomplete or inadequate evidence, despite the fact that the Tribunal member told the applicant that if she had difficulties she was to bring it to the attention of the Tribunal. 

  6. Insofar as the conduct of the hearing is recorded in the Tribunal reasons for decision it is not established that there were any difficulties in interpretation, comprehension or communication through the Mandarin-speaking interpreter. 

  7. I am not satisfied on the material before the Court that the interpretation provided at the hearing was so inadequate that it could be said that the applicant was effectively prevented from giving evidence (see Appellant P119/03 v MIMIA [2003] FCAFC 230). There is no evidence before the Court suggesting that particular questions were misunderstood by the applicant or that particular claims were not elaborated on. Nor is there any particularisation of the manner in which her claimed inadequacy in Mandarin prevented the applicant from understanding and responding to the Tribunal questions.

  8. The Tribunal reasons for decision record quite detailed questions and responses.  While the Tribunal did have regard to what it described as equivocation and hesitancy in the applicant’s oral evidence and her failure to be forthcoming and ambiguity, it is apparent from the Tribunal reasons for decision that the Tribunal’s concern was with the applicant’s inability to provide any meaningful detail in the sense of any elaboration on her claimed religious convictions or religious associations.  It is also apparent that in that respect the applicant provided a number of explanations for such inability (none of which related to language difficulties).  Rather she suggested that she easily forgot things, was illiterate and was unable to participate in religious gatherings in her home because she was busy preparing refreshments and that therefore she had limited religious knowledge. 

  9. Further, while the Tribunal considered the applicant’s evidence in relation to the claimed religious gatherings to be “minimalist and surreal”, this was in the context of her recorded explanation that she did not have an opportunity to participate in the gatherings because she was busy preparing food and drinks for those attending.  Similarly the Tribunal’s concern about the ambiguous and limited evidence in relation to the applicant’s claim that the authorities sought to arrest her related to her oral evidence that her husband had been arrested because they had come looking for her, that two of the “sisters” had been arrested (although she could not recall when, as she forgot things) and that when asked if the authorities had attempted to arrest her for criminal activity in January 2003 (referred to in the order for arrest) prior to her arrival in Australia she stated that she had stayed away from her home from January 2003 until August 2004 when she travelled to Australia. 

  10. There is nothing in the material before the Court to indicate that the shortcomings in the applicant’s oral evidence referred to by the Tribunal were attributable to language difficulties.  In that respect it is significant that while the applicant provided several explanations to the Tribunal for her inability to elaborate on his religious beliefs (that she easily forgot things, that she was illiterate and that she was unable to participate in the religious gatherings in her home because she was busy preparing refreshments and therefore had limited religious knowledge) there is no indication that her answers were unresponsive or that she raised any difficulty with communication with or through the interpreter as an explanation when the Tribunal sought information on her beliefs (or indeed when it sought explanations for aspects of her claims).  In particular, there is nothing in the Tribunal account of the hearing to suggest that the applicant’s responses were unresponsive in a way that might indicate a lack of comprehension or communication difficulties such that the applicant could be said not to have had a meaningful opportunity to be heard.  There is no suggestion that the interpreter provided was not proficient in Mandarin – a language the applicant had claimed to speak, read and write and which had been requested by her in the review application and response to hearing invitation. 

  11. It is clear that when made aware of a difficulty with use of the “Fuzhou” dialect (the dialect apparently requested by the applicant’s husband in the telephone conversation before the hearing and that the Tribunal confirmed would be provided) the Tribunal discussed with the applicants whether the hearing could proceed with a Mandarin interpreter on the basis that they had each indicted they could speak, read and write Mandarin and had requested a Mandarin interpreter in the review application and response to hearing form. The applicant agreed to this course.  She does not suggest that she sought an adjournment of the Tribunal hearing.  Indeed, nowhere in the material before the Court is there any reference to the applicant requesting a Fuqing interpreter prior to or during the Tribunal hearing.  The applicant was given the opportunity to raise any concerns with the Tribunal as the hearing progressed.  She does not claim that she raised any concerns with the Tribunal or even that she asked the Tribunal to repeat any questions. 

  12. In all the circumstances, on the evidence before me I am not satisfied that the use of an interpreter who spoke Mandarin and Fuzhou meant that the interpretation was inadequate or that it could be said that the applicant was effectively prevented from giving evidence at the Tribunal hearing. No breach of s.425, actual or apparent bias or other jurisdictional error arising out of use of the Mandarin-speaking (rather than Fuqing dialect) interpreter is established.

Bias and no evidence issue

  1. The first ground relied on in the amended application contends that the Tribunal conclusion as to the credibility of the applicant was induced by actual bias and that there was no evidence or other materials to justify the making of such conclusion. 

  2. There is no basis on the material before the Court for these contentions.  The Tribunal did consider the applicant’s claims made in connection with the protection visa application and to it.  Findings in relation to credibility are a matter for the Tribunal (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 67). The Tribunal findings on credibility were open to it on the material before it for the reasons that it gave, in particular the implausibility of the applicant’s evidence and explanations and her failure to provide specific details. The Tribunal considered, but rejected the applicant’s claims on this basis. The Tribunal also addressed the purportedly corroborative material provided by the applicant, the document headed Order for Arrest. It was open to the Tribunal to determine not to give weight to this document based on the timing of the alleged activities, the date of the document, the absence of a signature and the general format and appearance of the document. It raised its concerns with the applicant in the Tribunal hearing. It cannot be said that there was no evidence before the Tribunal to justify its conclusion in relation to credibility.

  3. Actual bias is also alleged.  As Von Doussa J stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37] “A finding of actual bias against a decision-maker is a grave condemnation of the ability of the decision-maker to discharge his or her functions with impartiality”. The allegation must be “distinctly made and clearly proved” (Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J). In this case there is nothing in the published reasons for decision to support a claim of bias either actual or apprehended in the sense identified by the High Court in Re Refugee Review Tribunal; Ex parte H (2001)75 ALJR 982 at [27] to [31].

  4. In this respect, as discussed above, the applicant was given the opportunity to put a transcript of the Tribunal hearing or other evidence before the Court in support of her general and unparticularised claims.  She did not do so.  I note that the applicant did not herself take issue with whether the tapes provided to herself and separately to her husband related to the hearing in which she participated.  The “issue” as to the identity of the applicant’s husband in the hearing tapes was raised for the first time at the start of the hearing on 9 August 2007.  Those parts of the hearing tapes to which the Court listened clearly related to the applicant and her family and provided no support for any claim of bias on the part of the Tribunal member.  The applicant has not particularised this claim beyond contending that the credibility finding was induced by bias and that there was no evidence to justify such a conclusion.  There is nothing in the material before the Court to establish bias on this or any other basis.  Ground 1 is not made out. 

Logic issue

  1. The second ground in the amended application is an unparticularised assertion that the Tribunal’s decision was based on reasoning which did not provide a rational or logical foundation for the Tribunal’s belief.  As set out above, the Tribunal reasoning was open to it on the material before it for the reasons that it gave.  No lack of rationality or logic is established, let alone in a manner constituting jurisdictional error.  Insofar as the applicant seeks merits review, merits review is not available in this Court. 

Illiteracy issue

  1. The third ground is that the Tribunal refused to consider the application in detail because the applicant is illiterate and the Tribunal could not understand her and her husband and did not try to clarify more details from them.  No evidence is adduced in respect of these assertions.  There is nothing in the Tribunal reasons for decision that gives any support to such claims.  It is apparent from the Tribunal account of the hearing that the applicant was given several opportunities to explain her claims and that measures were put into place at the outset to overcome any possible interpreting difficulties.  The Tribunal did not simply reject the application or refuse to consider it in detail because the applicant claimed to be illiterate.  The Tribunal considered the integers of the applicant’s claims.  It has not been established that it was obliged to attempt to clarify matters further in the manner contended for by the applicant. 

Section 424A issue

  1. Finally it is contended that the Tribunal did not observe the Migration Act 1958. In written submissions it was argued that there was a failure by the Tribunal to comply with s.424A of the Migration Act. However no particular information to which s.424A might apply is identified in the written submissions, other than a general reference to the Tribunal basing its finding on information or a lack of information contained in the applicant’s application for a visa. No breach of s.424A of the Migration Act 1958 is established.  First the applicant failed not because of information in her protection visa application or information from another source but rather because, based on her own evidence, the Tribunal did not accept the credibility of her claims. 

  2. Moreover there is no breach of s.424A by reason of the Tribunal’s decision not to place any weight on the arrest warrant, that being information given to the Tribunal for the purposes of the application for review within the exception to s.424A(1) in s.424A(3)(b). In any event, the Tribunal’s conclusion that weight should not be placed on that document is not information for the purposes of s.424A, but rather the product of the Tribunal’s subjective thought processes and appraisals (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 230 ALR 1 at [206]). No failure to comply with s.424A or any other provision of the Migration Act is established.

  3. It was also contended that the Tribunal did not “refer to” adequate particulars of the independent information. Insofar as this is intended to suggest that such information had to be put to the applicant by the Tribunal under s.424A(1), it was not necessary for it to do so. While it did cite independent country information, this information cannot be said to be the reason or part of the reason for the decision of the Tribunal within s.424A(1) as the applicant was found not to be credible based on the shortcomings in her evidence. In any event, even if such information was within the scope of s.424A(1) it would fall within the s.424A(3)(a) exception.

  4. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  23 August 2007

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