SZHEW v Minister for Immigration - [2008] FMCA 1714

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHEW v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1714

MIGRATION – Review of decision of Refugee Review Tribunal – Protection (Class XA) visa – res judicata – Anshun estoppel – whether jurisdictional error – whether adequate interpreting services provided to applicant – whether applicant denied opportunity to give meaningful evidence to the Tribunal – applicant’s credibility re his command of Mandarin language – whether breach of s.425 of the Act – procedural fairness – credibility of applicant’s claims – merits review not function of judicial review – whether breach of s.91R(3) of the Act – meaning of “conduct … in Australia” in s.91R(3).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 425, 427, 474

SZHEW vMinister for Immigration & Anor [2006] FMCA 1483
SZHEW v Minister for Immigration & Anor (No.2) [2006] FMCA 1750
SZHEW v Minister for Immigration and Citizenship [2007] FCA 243
MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1387
Applicant 321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342
Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192
NAIB v Minister for Immigration & Anor [2006] FMCA 1124
Ramsey v Skyring [1999] FCA 907
SZKJM v Minister for Immigration [2008] FMCA 23
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister of Immigration & Ethnic Affairs & J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105

Applicant: SZHEW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3263 of 2007

Judgment of: Orchiston FM

Hearing dates: 28 May, 9 September, 8 October 2008

Date of Last Submission: 29 October 2008

Delivered at: Sydney

Delivered on: 22 December 2008
REPRESENTATION

Counsel for the Applicant: Mr S Prince

Solicitors for the Applicant: SBA Lawyers

Counsel for the Respondent: Ms T Wong (on 28 May and 9 September 2008); Mr A Markus (on 8 October 2008)

Solicitors for the Respondent: Australian Government Solicitors
ORDERS
(1)The further amended application is dismissed on the grounds of res judicata.
(2)In the alternative, the further amended application is dismissed on the grounds of Anshun estoppel.
(3)In the further alternative, the Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
(4)The application, amended application and further amended application before this Court are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY
SYG 3263 of 2007

SZHEW
Applicant
And

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth), Part 7 Division 4 and s.476 of the Migration Act 1958, as amended (the Act), and s.75(v) of the Constitution, seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 August 2005 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

The applicant was born on 26 August 1959. He claims to be a national of the People’s Republic of China, of Han ethnicity, and of Falun Gong faith.
The applicant arrived in Australia on 5 November 2004 on a Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on 15 December 2004 on the basis that he commenced the practice of Falun Gong in 1999. He claimed that nothing happened to him during this period of practice but that it would be dangerous for him to return to China since practitioners of Falun Gong are persecuted in China (Court Book (CB) 19-21).
On 7 March 2005 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 29-36) (see Legislative framework).
On 6 April 2005 the applicant applied to the Tribunal for review of the delegate’s decision (CB 37-42).

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

On 26 May 2005, the Tribunal sent a letter to the applicant inviting him to appear before it on 27 July 2005 to give oral evidence and present arguments (CB 43-44).
The Tribunal did not receive a reply from the applicant to its hearing invitation (CB 45).
However, on 27 July 2005, the applicant attended the Tribunal. The Tribunal arranged for a Mandarin interpreter to attend at short notice, and proceeded to conduct the hearing on that day (CB 46).

The applicant’s claims and evidence (CB 56-58)

In his application for a protection visa, the applicant claimed that:

a)      he practised Falun Gong in 1999 due to a severe skin condition, which improved after he commenced its practice;
b)      he practised secretly and also secretly introduced about thirty others to the practice and he “always lived in scared condition”;
c)      nothing happened to him during his period of practice but it would be dangerous for him to return to China as he could be arrested. His parents have informed him that the police have come to his home “investigating this matter”.

The applicant also provided a Statement to the Tribunal (CB 42) claiming that:

a)      it is not difficult to get a passport in China through the normal procedure;
b)      he was not one of the “great leaders in Falun Gong organisations or society” but is in danger as the Chinese authorities continue to crackdown on Falun Gong;
c)      his cousin is in prison because the applicant introduced him to Falun Gong;
d)      officers of the Public Securities Bureau (PSB) have gone to his home in China to search for him and he is certain he is on their list and would be in great danger if he were to return;
e)      he did not have supporting evidence because he was not aware he would have to apply for a protection visa. All information regarding his practice has been destroyed by his family or by the PSB.

At the Tribunal hearing, the applicant made the following additional claims:

a) he was held in detention from 17 May 2002 to 6 October 2002;
b) he practised Falun Gong for two years. He said he did not do the exercises but he listened to Falun Gong lessons each morning and thought about Falun Gong when he was going to sleep.

The applicant also handed to the Tribunal a copy of a photograph which he claimed was of himself with a Falun Gong badge, which he claimed he had received “the day before yesterday” from his hometown. The facsimile date on the copy was 25 February 2003.

The Tribunal’s findings and reasons (CB 67-69)

The Tribunal found that the applicant’s knowledge of facts relating to Falun Gong was “incommensurate with his claims of being a Falun Gong practitioner” (CB 62), noting that:
a)     he did not know who was the founder of Falun Gong;
b)     he did not know the number of Falun Gong exercises;
c)     he did not know that Zhuan Falun was the main text of Falun Gong;
d)     he did not know when the Chinese authorities banned Falun Gong.
The Tribunal was satisfied that the substantial new claim made by the applicant during the course of the hearing, namely, that he had been detained by the authorities in 2002, had been fabricated. It did not accept that he had ever been detained, nor that his cousin was in prison because the applicant had introduced him to Falun Gong. The Tribunal did not accept that the PSB had searched for the applicant nor that he was on their list.
The Tribunal also did not give any weight to the copy of the photograph provided by the applicant, in particular given its contrary facsimile date and its poor quality.
The Tribunal concluded (at CB 63-64) that:
Looking at the evidence as a whole and given the applicant’s apparent lack of knowledge of facts pertaining to Falun Gong, the Tribunal rejects the applicant’s claims that he was ever a Falun Gong practitioner or that he was involved in any Falun Gong activities. It follows that the Tribunal does not accept that the applicant was ever detained or that his cousin is in prison because the applicant had introduced him to Falun Gong, nor does the Tribunal accept that PSB had gone to the applicant’s home searching for him or that he is on their list. In essence and for the reasons outlined above, the Tribunal does not accept that the applicant had suffered any of the claimed harm.
On the basis of the evidence as a whole, the Tribunal is not satisfied that the applicant had suffered any Convention-related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention related reason.
On 18 August 2005, the Tribunal sent a letter to the applicant notifying him of its decision to affirm the decision of the Minister’s delegate (CB 52).

Previous judicial review proceedings

The applicant filed an application for review of the Tribunal’s decision in the Federal Magistrates Court on 23 September 2005 (the original application).
On 25 September 2006, Scarlett FM dismissed the proceedings under Rule 13.03A(c) of the Federal Magistrates Court Rules, due to the non-appearance of the applicant: SZHEW vMinister for Immigration & Anor [2006] FMCA 1483 (the first FMC determination).
On 3 November 2006, the applicant filed a Notice of Motion in the Federal Magistrates Court seeking to set aside the orders made by Scarlett FM in the absence of the applicant.
On 27 November 2006, Scarlett FM dismissed the application for re-instatement, holding that an independent examination of the grounds of application did not disclose any arguable case of jurisdictional error and that the applicant had failed to give a satisfactory explanation for his earlier failure to attend Court: SZHEW v Minister for Immigration & Anor (No.2) [2006] FMCA 1750, (the second FMC determination).
The applicant appealed against the second FMC determination to the Federal Court of Australia. On 1 March 2007, Gilmour J refused leave to appeal against the second FMC determination and dismissed the application with costs: SZHEW v Minister for Immigration and Citizenship [2007] FCA 243.

The present proceedings before this Court

The applicant filed the application in this Court on 19 October 2007 setting out four grounds of review of the Tribunal’s decision. The applicant filed an amended application on 7 November 2007 setting out eleven grounds of review. The applicant now relies only on the further amended application filed on 8 October 2008.
Mr Prince of counsel appeared for the applicant at the hearing before the Court. Ms Wong of counsel appeared for the first respondent on 28 May and 9 September 2008; Mr Markus of counsel appeared for the first respondent on 8 October 2008.

Grounds of the further amended application

The grounds of the further amended application, as set out below, raise, in effect, three substantive grounds which are stated at paragraphs 22, 23 and 24 therein, and which for convenience, I shall hereinafter refer to as grounds 1, 2 and 3 respectively:
1. The applicant seeks relief under part 7 Division 4 and s.476 of the Migration Act 1958, s.75(v) of the Constitution and s.39B of the Judiciary Act 1903.
The Grounds of the Application are:
2. The applicant is a Chinese National, born in Fuqing City in 1959.
3. The applicant speaks Fuqing as a native, has a basic understanding of Mandarin and does not speak English.
4. The applicant is completely illiterate having never received any formal education.
5. In early 1999, the applicant was introduced to Falun Gong by his neighbour and soon after became a Falun Gong practitioner.
6. The applicant has been practising Falun Gong daily since his introduction and remains a Falun Gong practitioner today.
7. Between 2001 and 2004, the applicant was persecuted by Chinese authorities for being a Falun Gong practitioner.
Particulars
(a)     In February 2001 the applicant was arrested and detained overnight on suspicion of being a Falun Gong practitioner.
(b)     In May 2002 the applicant was arrested, tortured and detained overnight on suspicion of being a Falun Gong practitioner.
(c)     Between 1999 and 2004 the applicant was verbally threatened on numerous occasions by the Chinese authorities for being a Falun Gong practitioner.
8. On or about 4 November 2004 the applicant fled China fearing persecution on the grounds of being a Falun Gong practitioner.
9. In or about December 2004 the applicant’s uncle contacted a migration agent for assistance in lodging a protection visa application for the applicant.
10. The migration agent never met with or contacted the applicant directly.
11. On 15 December 2004, a migration agent lodged an application to the first respondent for a protection visa purportedly on behalf of the applicant.
Particulars
(a)     The application was prepared entirely by the migration agent without confirmation from or communication with the applicant.
(b)     The applicant never saw the application, did not know of its contents and never signed the document.
12. On 7 March 2005 a delegate for the first respondent refused that application for a protection visa.
13. On or about 5 April 2005 the migration agent lodged an application to the second respondent for review of the first respondent’s decision.
14. On 27 July 2005 the applicant attended a hearing with the second respondent (“RRT hearing”).
15. The second respondent had not booked in advance an interpreter for the applicant.
16. Within about one and a half hours from the discovery that the applicant had not been provided with an interpreter, the second respondent located a Mandarin interpreter known as Tina Gui (or Tina Qui)(“Madam Interpreter”) and proceeded to use her as the interpreter for the RRT hearing.
17. Madam Interpreter did not speak or understand Fuqing.
18. Madam Interpreter was not a NAATI accredited interpreter in either Mandarin or Fuqing.
19. The applicant was prevented from properly giving evidence as Madam Interpreter did not speak or understand Fuqing,
Particulars
(a)   the applicant was made to give evidence in Mandarin in which he is neither fluent or educated
(b)   the applicant could not properly tell the story as he did not know enough Mandarin words nor have an adequate grasp of the language to explain himself
(c)   the applicant could not understand the questions being put to him and was unable to effectively respond.
20. The second respondent was prevented from receiving meaningful evidence from the applicant
(a)   Madam Interpreter did not always understand the applicant in his attempt to communicate in Mandarin.
21. On or around 18 August 2005, the second respondent affirmed the first respondent’s decision not to grant the applicant a protection visa.
22. The second respondent erred in law in arriving at its decision by failing to provide the applicant with sufficient interpreter, contrary to s.427(7) of the Migration Act.
Particulars
(a)   The applicant repeats paragraphs 3, 4 and 15 to 20 above.
23. The second respondent erred in law in arriving at its decision by failing to comply with s.425 of the Migration Act
Particulars
(a)   The applicant repeats paragraphs 3, 4 and 15 to 20 above.
24. Further and in the alternative, the second respondent failed to comply with s.91R(3) of the Act in that it took into account two actions of the applicant whilst he was in Australia in circumstances where it was not satisfied that conduct in Australia was otherwise than for the purpose for strengthening the applicant’s claim to be a refugee.
Particulars
The second respondent considered that in the course of the Refugee Review Tribunal hearing the applicant:
(a) “made up a substantial new claim namely that he was detained from 17 May 2002 until 6 October 2002”; and
(b) provided the second respondent with a facsimile of a photograph and that the oral evidence given by the applicant about its origins was contrary to the evidence on the facsimile itself.

Res Judicata and Anshun estoppel

The first respondent submits that the further amended application should be dismissed on the grounds of res judicata, or in the alternative, on the grounds of Anshun estoppel.

Res judicata

The first respondent submits that:
The cause of action in the current proceedings, namely a claim of jurisdictional error in the Tribunal’s decision, is the same as the issue in the previous proceedings before the Federal Magistrates Court, such that the principle of res judicata applies and the proceedings should be dismissed.
In MZWHU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1387 at [22], Middleton J summarised the principles applicable to determining whether an application should be dismissed on the grounds of res judicata:
The rule of res judicata is that, generally speaking, no proceeding can be maintained on a cause of action upon which judgment has been entered. The cause of action is said to merge in the judgment, in the sense that it no longer has an existence independent of the judgment.
The applicant submits that the principles of res judicata do not apply in this case for the following reasons:
The respondent contends that the determination by Scarlett FM of the application for review filed 23 September 2005 (“the previous application”) is a final judgment. The assertion is, with respect, wrong.
The Orders [made by Scarlett FM on 25 September 2006] show that the previous application was dismissed under Federal Magistrates Court Rules (“FMCR”) r 13.03A(c) due to the non-appearance of the applicant. An explanation for the non-appearance of the applicant has now been given and it is submitted that the Court should find it reasonable. In summary, the explanation is that a Mandarin interpreter was provided at the directions hearing on 28 August 2006 and this interpreter told the applicant that the hearing would be listed in October, when in fact it was listed in September. It is not known if the interpreter mistakenly told the applicant it would be October instead of September, or if there was a serious problem in communication between the interpreter and the applicant due to the fact that again, the applicant had been provided with a Mandarin interpreter and not a Fuqing interpreter.
The respondent has cited Linprint Pty Limited v Hexham Textiles Pty Limited (1991) 23 NSWLR 508 as authority for the proposition that a judgment handed down in the absence of a party, while liable to be set aside, is still a final judgment. This proposition is inapplicable to the present case upon a closer analysis of the rules of Court in that case and the nature of this Court’s Rules which led to the dismissal of the previous application.
The reasoning in the decision in Linprint turned on the provisions of the County Court Act 1958 (Vic), under which the first judgement was made. in Section 73 provides of the County Court Act was of particular significance to the reasoning, it provided that:
“Every judgment and order made in any action or matter by the court or a judge, except as in this Act provided, shall be final and conclusive between the parties”.
The Federal Magistrates Court rules do not contain an equivalent provision to s 73 of the County Court Act and so the principles espoused in Linprint cannot apply.
Rather, the proper determination of the nature of the Orders is made with reference to Applicant A184 of 2003 v Minister for Immigration and Multicultural Affairs [2004] FCA 1076. There it was held that as the decision to dismiss the earlier proceedings was made under Federal Court Rules (“FCR”) r 21(2)(c) due to the non- appearance of the applicant, res judicata and issue estoppel did not apply.
It is noted that r 21 (2)(c) of the FCR is essentially identical to r 13.03A(c) of the FMCR and as such the same reasoning can be adopted in this case as in Applicant A184. Significantly, a relevant principle espoused is as follows:
“it is clear that there is no universal rule that a default judgment will found a successful pleas of res judicata”
An order made under FMCR r 13.03A(c), does not establish any fact or point of law. Indeed, all that the Orders establish is that the applicant did not appear before the court: see Applicant A184 at [112] – [113].
There has been no hearing on the merits of the case. Accordingly the approach to res judicata adopted by Lander J in Applicant A184 should be applied. His Honour said at (at [113]):
“This was simply an order entered for an undisclosed failure to attend a hearing of which the applicant might or might not have had notice. In my opinion, it would not be appropriate to decide this application adversely to the applicant on this ground”.
The significance of the dismissal of the previous application being made under FMCR r13.03A(c), is that no findings of fact were made or issues decided by His Honour. As such, no question of issue estoppel arises.
Further, as an explanation for the non-appearance on 25 September 2006 has now been given and the cause of which echoes the source the jurisdictional error the substantive proceedings, it can hardly be said that it would be unreasonable to allow the present proceedings to be heard: see Macquarie Bank Ltd v National Mutual Life Association of Aust Ltd (1996) 40 NSWLR 543.

The applicant’s submission deals only with the first FMC determination in which His Honour dismissed the application because of the non-appearance of the applicant at Court. However, any consideration of whether res judicata applies also needs to take into account the second FMC determination and the Federal Court appeal from the second FMC determination.
Following the first FMC determination, the applicant filed a Notice of Motion on 3 November 2006 seeking to set aside the orders made by the Court in his absence, and to give the applicant an opportunity to explain why he did not appear at the September Court hearing.
In the subsequent hearing before Scarlett FM on 24 November 2006, the applicant gave evidence concerning his non-appearance at the hearing in September: SZHEW (No.2) at [9]-[11]. Importantly, the applicant also gave evidence concerning his substantive application filed on 23 September 2005: SZHEW (No.2) at [13]-17].
In his judgment in the second FMC determination, at [18]-[27]), Scarlett FM set out the grounds of the original application and reached conclusions for dismissing those grounds, and therefore the cause of action, as well as making findings on the issue of non-attendance at the earlier Court hearing. He stated, inter alia, that:
In the case before me, the Applicant had sought a Protection (Class XA) visa as he claimed a fear of persecution should he return to the People’s Republic of China because of his practice of Falun Gong. He attended a hearing of the Refugee Review Tribunal on 27^th July 2005 and gave oral evidence. The Tribunal affirmed the delegate’s decision not to grant a protection visa, finding that his level of knowledge of facts relating to Falun Gong was incommensurate with his claims that he was a Falun Gong practitioner. Because of this, the Tribunal rejected his claims that he was ever a Falun Gong practitioner or that he was involved in any Falun Gong activities.
The Applicant has not filed any amended application in respect of his substantive claim, although he has had the benefit of legal advice from a barrister. His application for review filed on 23rd September 2005 claims these two grounds of review:
1. The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the Tribunal failed to consider the fact that the applicant is illiterate, which may affect his ability to study Falun Gong, of which the applicant claims to be a follower.
2. Important evidence ignored by the Tribunal: the applicant submitted a photocopy showing him with a Falun Gong badge. This evidence was not accepted by the Tribunal merely because the facsimile date showing on the paper contradicts the applicant’s claim that he received the copy two days before the hearing. The applicant claims that he received the facsimiled copy by post from China two days before the hearing.
Contrary to the Applicant’s claims, the Tribunal did consider the fact that he cannot read (at Court Book page 58) but was not persuaded by that explanation (at Court Book page 63). The Tribunal was entitled to make the finding that it did about the copy of the photograph on the basis of the evidence.
As to whether the Tribunal made an attempt to deal with the review in a bona fide manner, in so far as the application alleges a breach of good faith, I am unable to discern any evidence in support of that claim. The Full Court of the Federal Court set out in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [42] – [48] the principles applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review (see also SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076).
An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review. In this case, I can find no evidence of a lack of a bona fide attempt to exercise the power of review by the Tribunal.
The Applicant’s grounds for review do no more than seek to challenge the Tribunal’s factual findings, but merits review is not available to an Applicant in an application for judicial review. There was evidence available to the Tribunal that would justify the Tribunal’s factual findings.
I am aware that the Applicant is not legally represented.
My independent examination of the material does not disclose any arguable case of jurisdictional error. In my view, the Applicant’s substantive application has no reasonable prospects of success.
Even if I were satisfied that the Applicant had given a reasonable explanation for his failure to appear, reinstatement would be futile because his application for review cannot succeed. I am not satisfied that the Applicant has given a reasonable explanation for his failure to appear. The Court wrote to him at his address for service that he had provided only about a fortnight earlier. The Applicant says that he told his migration agent who said he had advised the Court, but there is no evidence to corroborate that assertion. I am not satisfied that it is true.
In my view, the Applicant has not given a satisfactory explanation for his failure to attend Court. In any event, reinstatement would not achieve anything, as his substantive application has no reasonable prospect of success.
The application will be dismissed with costs.
On appeal from the second FMC determination, Gilmour J, at [17]-[18], observed that the decision by Scarlett FM was broader than merely consideration of the reasons for the non-attendance of the applicant:
The learned Federal Magistrate had due regard to the principles applicable to a motion for reinstatement namely a consideration not only of the explanation given for non-attendance at the hearing but also as to whether reinstatement would be futile where there are no reasonable prospects of success: SZCPY v Minister for Immigration & Multicultural Affairs [2004] FMCA 646 at [12].
This, in my opinion, was the correct approach.
In considering the matters raised in the Notice of appeal, Gilmour J, at [23]-[30], reached the following conclusions:
The draft notice of appeal contains the following grounds:
The appellant contended in the FMC that the Tribunal failed to deal with his review application in good faith as the Tribunal ignored important evidence he provided, which is a photocopy showing him with a Falun Gong badge. This evidence was not accepted by the Tribunal merely because the facsimile date showing on the paper contradicts to the applicant’s claims that he received the copy. The Tribunal also failed to invite the applicant to explain on such contradiction.
This ground plainly challenges the decision of the Tribunal, and not the Federal Magistrate. I will nonetheless deal with the ground as stated. The Tribunal in its reasons dealt with the evidence of the photograph in this way:
The applicant handed up a copy of a photograph (Folio 34) and said that was his photograph showing him with a Falun Gong badge. The Tribunal indicated to the applicant that the copy is very unclear and that indeed it is difficult to see the badge and whether it is him or not. The Tribunal asked the applicant when he received this copy. He said it was sent to him "the day before yesterday" from his hometown. The Tribunal put to the applicant that the copy has a facsimile date of "Feb. 25 2003 01.11" contradicting his claim that the copy was sent to him the day before yesterday.
Accordingly the Tribunal considered the relevant photograph but gave it no weight. It was open to the Tribunal to do so. The contradiction in the dates was put to the applicant by the Tribunal. No jurisdictional error is evident. The applicant did not cause it to be satisfied as to the applicable criteria: SJSB v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 and SZBCS v. Minister for Immigration [2005] FMCA 25.
In any event, a lack of good faith is a serious allegation involving "a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker": SCAS v MIMIA [2002] FCAFC 397 at [19]. I find no support for such an allegation. To the extent that this ground may be regarded as an allegation of bias, the applicant has failed to meet the requirement that bias be firmly and distinctly made and clearly proved: MIMA v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J.
The ground of appeal relied upon cannot succeed.
I have carefully considered the reasons of both the Tribunal and the Federal Magistrate as well as the grounds before me and I am unable to discern any jurisdictional error on the part of the Federal Magistrate.
I am of the opinion that no arguable ground of appeal is raised by the applicant, or putting it another way, the decision below is not attended by sufficient doubt to warrant an appeal going forward leave to appeal will be refused: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543. I am also of the view that no substantial injustice would arise upon such refusal assuming the decision below to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. This is because the substantive grounds for review of the Tribunal’s decision, in my opinion, adopting as I do the Federal Magistrate’s reasons, have no reasonable prospects of success.
It follows in my opinion that in this case leave to appeal should be refused. The application will be dismissed with costs.
Having considered this litigation history, I consider that Scarlett FM, in the second FMC determination, entered a judgment on the cause of action raised in the original application, which judgment was upheld by Gilmour J, so as to constitute a final judgment on that application.
The applicant has now sought in these proceedings to raise various new grounds of application, none of which were referred to in the original application or in the application for leave to appeal to the Federal Court.
I do not consider that the raising of these new matters necessarily attracts any exemption from the application of the res judicata doctrine. In Applicant 321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 at [13]-[14] and [18], the Federal Court held that the fact that current proceedings seek to re-litigate the same claim for relief that was sought in the earlier proceedings suffices to attract the res judicata principle. It does not matter that the re-litigation is based upon an argument that was not previously advanced:
The essential problem confronting the applicant is that the jurisdiction he seeks to invoke in the present proceeding is the same jurisdiction that he invoked in the earlier proceeding. As I have mentioned, the previous application, that was made to this Court and remitted to the Federal Magistrate’s Court, was made under s 39B of the Judiciary Act. There was no limitation or qualification on the width of the jurisdiction which was invoked. Section 39B(1) says that, subject to some immaterial exceptions:
‘[T]he original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.’
Those words are almost identical to the words of s 75(v) of the Constitution; in other words, the claim that the applicant seeks to make in the current proceeding is a claim for relief identical to the claim that he unsuccessfully made in the earlier proceeding. The difference between the two cases, according to Mr Burwood, is that the applicant now seeks to put a different argument to that considered and rejected by Raphael FM.
The fact of the matter is that the present application seeks to re-litigate the same claim for relief that was sought in the earlier proceeding. It matters not that the re-litigation is intended to be based upon an argument that was not previously advanced. The principle of res judicata applies to this case.
Both the original application before Scarlett FM, and the further amended application presently before this Court, seek relief from the decision of the Tribunal handed down on 18 August 2005. Applying the approach in Applicant 321 of 2002, I consider that merely raising new grounds for this relief does not suffice to circumvent the application of the res judicata principle. I agree with the submission by the first respondent that:
To conclude otherwise would enable applicants to bring multiple sets of proceedings in the Federal Magistrates Court.
I am thus satisfied that the applicant is prevented by the principle of res judicata from raising the grounds set out in the further amended application in the present proceedings. If I be wrong in this determination, I turn now to consider the alternative ground of Anshun estoppel raised by the first respondent.

Anshun estoppel

Under the principle of Anshun estoppel, an applicant is estopped in further proceedings from raising a ground of review that the applicant reasonably could have raised in previous proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 354-356; Somanader v Minister for Immigration & Multicultural Affairs [2000] FCA 1192, NAIB v Minister for Immigration & Anor [2006] FMCA 1124 at [10]-[13].
On this basis, the first respondent submits that:
The grounds raised by the applicant in these proceedings properly belonged in the earlier proceedings and with reasonable diligence ought to have been raised at that time. The doctrine of Anshun estoppel therefore applies to the present case.
In this regard, I have compared the matters raised by the applicant in the present further amended application with those raised in the original application for judicial review before Scarlett FM and on appeal before Gilmour J.
As set out in the decision of Scarlett FM in SZHEW (No.2) at [19], the original application contained two grounds:
1.The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the Tribunal filed to consider the fact that the applicant is illiterate, which may affect his ability to study Falun Gong, of which the applicant claims to be a follower.
2.Important evidence ignored by the Tribunal: the applicant submitted a photocopy showing him with a Falun Gong badge. This evidence was not accepted by the Tribunal merely because the facsimile date showing on the paper contradicts to the applicant’s claim that he received the copy two days before the hearing. The applicant claims that he received the facsimiled copy by post from China two days before the hearing.
Scarlett FM also observed that:
The applicant has not filed any amended application in respect of his substantive claim, although he had had the benefit of legal advice from a barrister [emphasis added] (at [19]).
Gilmour J, at [16], also made the same observation that the applicant had the benefit of legal advice. He further stated, at [16], that:
On 15 December 2006 the applicant filed an application for leave to appeal, a supporting affidavit and a draft notice of appeal. The application for leave to appeal asserts that the "grounds of the application appear in the annexed affidavit". The affidavit effectively repeats the ground raised in the draft notice of appeal and also asserts that if the applicant returned to the PRC he would be persecuted as a result of his practice of Falun Gong. This latter assertion, as the first respondent submitted, amounts to a re-statement of his refugee claims and does not constitute a proper ground to be raised on an appeal.
The draft notice of appeal contains the following grounds:
The appellant contended in the FMC that the Tribunal failed to deal with his review application in good faith as the Tribunal ignored important evidence he provided, which is a photocopy showing him with a Falun Gong badge. This evidence was not accepted by the Tribunal merely because the facsimile date showing on the paper contradicts to the applicant’s claims that he received the copy. The Tribunal also failed to invite the applicant to explain on such contradiction.
Whilst the grounds of the original application, (and the grounds of appeal thereon), clearly differ from the present grounds set out in the further amended application, I consider that it was reasonably open to the applicant in the original application, (and the appeal to the Federal Court), to have raised the grounds pleaded in the present further amended application. I consider that the matters now raised by the applicant for the first time in the present proceedings, concerning the interpreter services provided at the Tribunal hearing in July 2005, (paragraphs 22 and 23 of the further amended application) and alleged breaches of s.91R(3) of the Act (paragraph 24 of the further amended application), are matters that could, by the exercise of reasonable care, have been raised at the time of the filing of the original application, and which, if raised, could have been decided in those previous proceedings. The applicant had ample opportunity to raise any concern regarding either matter when formulating the original application, or in deciding whether to file an amended ground of application at that time, in particular, given that he had the benefit of legal advice. Likewise, he could have sought leave to raise any of these fresh matters when formulating his grounds of appeal to the Federal Court.
The applicant submits that:
the applicability of Anshun estoppel is not automatic. The courts must exercise caution when putting out of court a party who could and should have litigated the matter in an earlier proceedings: see discussion in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598. The Court should adopt a bias in favour of a resolution on the merits against shutting out of litigation a party who has never had such a resolution: see O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 at 611, 628. This is especially so as the applicant’s non attendance at the previous application’s hearing was neither intentional nor was it the fault of the applicant.
I do not consider that there are any special circumstances in the current proceedings which would warrant the Court declining to apply the Anshun estoppel principle. I do not consider that putting forward an explanation as to why the applicant did not attend the first of three judicial review hearings, in 2006 and 2007, constitutes a valid special circumstance for not applying the principle of Anshun estoppel. These principles are concerned rather with the quite separate question of the grounds of application that were, or could reasonably have been, put forward by the applicant when first seeking judicial review of the Tribunal decision.
It is also immaterial that the applicant may believe in the justice of his claims and may or may not understand that they have been authoritatively and finally rejected (cf Ramsey v Skyring [1999] FCA 907, Sackville J, at [56], quoting Toohey J in Jones v Skyring [1992] HCA 39, 66 ALJR 810 at 813).
For the above reasons, I am satisfied that the applicant is estopped from now pleading the grounds of the further amended application in the present proceedings. In the event that I be wrong in this conclusion, and that neither the principles of res judicata nor Anshun estoppel apply in the present case, I turn now to consider whether any of the grounds now raised by the applicant in the further amended application establish jurisdictional error on the part of the Tribunal.

Ground 1 (paragraph 22) of the further amended application

Ground 1 of the further amended application states that:
The second respondent erred in law in arriving at its decision by failing to provide the applicant with sufficient interpreter, contrary to s.427(7) of the Migration Act.
Particulars
(a) The applicant repeats paragraphs 3, 4 and 15 to 20 above.
Sub-section 427(7) provides that if a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
I accept the submission by the applicant that:
despite the use of the term ‘may’, s 427 of the Act imposes a positive obligation on the Tribunal to ensure that an interpreter is present at a Tribunal hearing to assist non-English speaking applicants: see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 17; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at 8.
The applicant, in effect, is arguing, that the Tribunal, in providing an interpreter who spoke Mandarin but did not speak or understand Fuqing, failed to provide him with adequate interpretation services.
The applicant in his application for a protection visa requested an interpreter in Mandarin (CB 13). Likewise, the applicant in his application to the Tribunal for review of the delegate’s decision requested a Mandarin interpreter (CB 41). In neither instance did the applicant request an interpreter in Fuqing, nor otherwise indicate that his native language was other than Mandarin.
Mr Prince submits however, that:
The applicant did not request a Mandarin interpreter. The applicant clearly stated [in his affidavit filed 7 November 2007] that he did not dictate, sign nor know of the contents of any of his applications to the Minister or the Tribunal. The applicant was not cross-examined on this point and as such it must be accepted.
The applicant is seeking to assert, for the first time, now over two years after the Tribunal hearing, that he was not aware of the contents of his own applications. Nonetheless, he confirmed at the Tribunal hearing that the contents of the Statement accompanying his Tribunal application were “true and correct” (CB 57).
Furthermore, the transcript of the Tribunal hearing reveals that the applicant, at no stage during the course of his evidence, requested the services of a Fuqing, as opposed to a Mandarin, interpreter or that he complained to the Tribunal about the adequacy of the translation services provided to him in Mandarin at any time during the course of the hearing. There is also no evidence that the applicant made any complaint in this regard to the Tribunal at any time thereafter in the one month period prior to the handing down of its decision; nor that he raised any such complaint in the earlier proceedings for judicial review before Scarlett FM in SZHEW (No.2), nor on appeal before Gilmour J.
The applicant has stated under this ground of the further amended application that:
14.On 27 July 2005 the applicant attended a hearing with the second respondent (“RRT hearing”).
15.The second respondent had not booked in advance an interpreter for the applicant.
16.Within about one and a half hours from the discovery that the applicant had not been provided with an interpreter, the second respondent located a Mandarin interpreter known as Tina Gui (or Tina Qui) (“Madam Interpreter”) and proceeded to use her as the interpreter for the RRT hearing.
By way of clarification, the transcript of the Tribunal hearing (Annexure A to the affidavit of Christina Joanne Grygiel, sworn 7 November 2007) indicates that the reason the Tribunal had not booked an interpreter in advance was that the Tribunal did not know that the applicant intended attending the hearing “because you [the applicant] have not responded to your invitation” (Tribunal transcript, (TT), p.4). In these circumstances, contrary to the applicant’s assertion, I am satisfied that no blame can be attributed to the Tribunal for not having already organised the availability of an interpreter.
I also consider that the Tribunal acted in a proper manner in arranging an interpreter in the Mandarin language, at short notice, given that the applicant had requested a Mandarin interpreter in his application to the Tribunal. The Tribunal transcript records that the applicant clearly indicated to the Tribunal that he had no objection to the Mandarin interpreter that the Tribunal had arranged (TT. Pp.4-5):
Tribunal:First thing I am going to ask you about Madam Interpreter is if you are having any difficulty understanding her.
Applicant:Me?
Tribunal:Yes, you.
Applicant:No, I don’t really have many problems, but sometimes, some of the words I don’t understand.
Tribunal:Well, why don’t you understand some of the words?
Applicant:I haven’t got much education therefore some words in Mandarin I don’t quite understand.
Tribunal:Can I ask you then, if you don’t understand a word to ask me or Madam Interpreter to explain it to you and to try to use another word.
Applicant:Okay.
Tribunal:The second question I’d like to ask you about Madam Interpreter is if you have any objections to her whatsoever.
Applicant: No objections [emphases added].
Relevantly, the applicant in the above-quoted passage, attributes any lack of understanding on his part solely to his limited education. He makes no mention at all of his present assertion that Fuqing, not Mandarin, is his primary language.
Nonetheless, Mr Prince submits that:
The applicant’s deliberate use of the words “in Mandarin”[in the above-quoted passage] demonstrate that Mandarin was not his mother tongue and put the Tribunal on instant notice of this fact.
I reject this submission. At no stage, either before or at the Tribunal hearing, did the applicant give any indication that his mother tongue was other than Mandarin. It is for the applicant to inform the Tribunal on a matter of this nature, not for the Tribunal to be called upon to infer such a construction from the use of these two words, “in Mandarin”, as they fell in the context of an on-going conversation.
There is also no evidence from the applicant to corroborate any such intentional use by him of these two words to connote the construction for which Mr Prince now contends. I consider that such a construction represents a fanciful over-dissection of these two words, in circumstances where their plain meaning is evident on their face in the context in which they are used.
Moreover, as stated above, a fair reading of the above passage from the Tribunal transcript indicates that the applicant stated that his only problem with Mandarin was that he did not understand some words because of his lack of education. This type of problem can arise even in a native tongue for someone who is not sufficiently educated. The Tribunal transcript records that the Tribunal then counselled the applicant on what to do if he did not understand a particular word. In these circumstances, as the first respondent submits:
it is difficult to imagine how the Tribunal could have conducted itself differently.
I further accept the submission by the first respondent that:
The applicant has not suggested that there was any miscommunication between the Tribunal and the applicant and/or the applicant and the interpreter in this portion of the transcript. The applicant’s answer[s] to the first of the Tribunal’s questions [see above] demonstrates that the applicant understood that the Tribunal was asking whether he was having any difficulties with the interpreter. Notwithstanding the applicant’s awareness of the issue being raised by the Tribunal and the applicant being given an opportunity to voice his concerns about the interpreter provided by the Tribunal, the applicant chose, of his own volition, to continue to use the services of a Mandarin interpreter [emphasis added].

Expert Evidence of Ms Qian

The applicant relies upon the affidavit of Ms Yan Qian sworn on 24 January 2008 (the Qian affidavit), her expert report, (the Qian Report, Annexure B to the Qian affidavit), and her oral evidence to this Court.
Ms Qian is a Lecturer in Translation and Interpreting in the Linguistics Department of Macquarie University and has held level 3 NAATI accreditation as a translator and interpreter between Mandarin and English.
The Qian Report states that:
When listening to the tape [of the Tribunal hearing] I have found that the applicant seemed to me that he could understand Mandarin most of the time in his communication with the interpreter but sometimes he had difficulty; that the applicant seemed to me that he could express himself adequately in Mandarin when giving short and simple answers, but he had difficulty in expressing himself in Mandarin when he needed to give longer explanations; and that the applicant spoke Mandarin with a heavy accent and his accent at times made it difficult for the interpreter to understand him, thus causing confusion.
The Qian Report contains five examples which demonstrate alleged difficulties experienced by the applicant and the interpreter in effectively communicating with each other during the Tribunal hearing. Importantly, Ms Qian acknowledged in cross-examination that she had included in her Report all of the significant examples upon which she relied in forming her conclusions regarding the alleged interpretation difficulties (CT, 28 May 2008, pp 32. 20-32.24), as follows:

Example 1

Ms Qian asserts that there was some confusion between the applicant and the interpreter when the applicant was seeking to describe the consequences of his practising Falun Gong in China, as the interpreter did not seem to understand the applicant’s use of the Mandarin word “kongzhi” which means “control” (Qian Report, p 3).
In cross-examination, however, Ms Qian conceded that once the applicant began to use the word “detention” instead of “control”, there was no confusion between the applicant and the interpreter over this issue (CT, 28 May 2008, p 35.28-35.29). I accept the submission by the first respondent in this regard that:
The portion of the [Tribunal] transcript included in the first example by Ms Qian demonstrates that any confusion was therefore limited and was rectified by the interpreter at the earliest opportunity.
The applicant does not appear to dispute this submission. However, the applicant further submits that:
Although the confusion between the applicant and the interpreter over this issue did not continue, and matters moved on, the interpreter did not explain to the [Tribunal] that she didn’t understand the applicant, and that she has interpreted him incorrectly.
The result of this is that the [Tribunal] received a non-responsive/confused answer which she [has] believed to be the fault of the applicant rather than the interpreter. That conclusion was significant as the [Tribunal] accuses the Applicant of being evasive during the hearing.
I do not accept this submission. I see nothing on the face of the Tribunal transcript of the evidence before it, nor in the Tribunal’s Findings and Reasons, to indicate that the Tribunal drew any adverse consequences as alleged by the applicant. I accept the submission by the first respondent in this regard that:
the evidence being given by the applicant at that time was not in response to any questions being asked by the [Tribunal], and therefore could not have contributed to any adverse view regarding the applicant's credibility.

Example 2

Ms Qian refers to possible confusion between the meaning of “nearly” and “about” in regard to how long the applicant claimed to have practised Falun Gong in China (Qian Report, p 3).
I consider that the difference in meaning between the words “nearly” and “about” to be minor and, in the context, to constitute an over-zealous dissection of the evidence which could not reasonably have caused any material prejudice to the applicant. I also note that the applicant later clarified in his evidence to the Tribunal that he had been practising Falun Gong for “a little bit more than 2 years” (TT, p 11.3), which was the evidence effectively referred to by the Tribunal in its Findings and Reasons when it stated that:“The applicant gave evidence that he practised Falun Gong for over two years” (CB 57).
I thus accept the submission by the first respondent on the point that:
There was therefore no material misunderstanding between the applicant and the interpreter, nor any error of interpretation that was material to the conclusions of the Tribunal.

Example 3

Ms Qian states that the applicant’s use of the Chinese word “yinian” was not understood by the interpreter, who interpreted “yinian” as “thinking” about Falun Gong, instead of “practice in thought or idea” (Qian Report, p 4).
The applicant submits in support of this example that:
The use of the word ‘yi nian’ was the point where the interpreter steps in to inform the Member that she doesn’t think the Applicant can understand the word ‘practice’. Clearly communication has broken down here in many different ways. This is of utmost significance because the Member’s decision expressly states:
The Tribunal asked the applicant if he was a Falun Gong practitioner. He said he did not practise but had thought about Falun Gong when sleeping. He said he was “just thinking about it ...” He said that every morning from 4.30 until 5.00 he listened to Falun Gong lessons and thought about Falun Gong when he was going to sleep.
What the Applicant actually said was “Practice, it means I joined the activities. [He said] that ‘practice in thought’, ‘practice in thought’, means you think about Falun Gong and you are practising” (Qian Report at 4).
In cross-examination, Ms Qian conceded, however, that it was possible that the word “yinian” could be used in a context which has no connotation of “practice” and that it could be used to mean “mindful or thought” (CT, 28 May 2008, p.36.4), or to convey the meaning that someone was “thinking about something” (CT, 28 May 2008, p.37.10-37.24. This concession is consistent with the above interpretation given by the interpreter at the Tribunal hearing.
It is also consistent with the evidence of the first respondent’s expert witness, Ms Xie, who stated that:
I say yinian literally means ‘mindful’ or ’thought’ or ‘thinking of something’ (affidavit of Ms Cathy Yong Xie, sworn 1 February 2008 at paragraph 8, (the second Xie affidavit); CT, 9 September 2008, pp.45.10; and at 52.30-52.47).

Example 4

Ms Qian asserts that the applicant had difficulty grasping the Chinese word “jianli” or “founder” when being asked about who was the founder of Falun Gong (Qian Report p 5). Her basis for this conclusion was that the applicant repeated the word twice, and that the interpreter chose to express the same idea using a different word (CT, 28 May 2008, p 41.31-41.36).
The applicant submits in this regard that:
The evidence demonstrates that the interpreter demonstrated that she knew the applicant did not understand the word ‘jinali’ and thus the question, but that she did not tell the [Tribunal]. The interpreter chose to interpret unresponsive answers instead.
I am not satisfied that the evidence of Ms Qian demonstrates any material translation error by the interpreter, or that there was a material misunderstanding between the applicant and the interpreter which can be inferred in this context. Rather, I accept the submission by the first respondent that:
The applicant did not ask for any clarification from the interpreter regarding the meaning of “jianli”, and has not given evidence that he did not understand the word “jianli” (the burden resting on the applicant to demonstrate such a failure in understanding). In any event, the interpreter assisted the applicant by using two different words for “founder”, being “faqi” as well as “jianli”. The applicant then gave the same answer as he had given previously, namely that he did not know who the founder [of Falun Gong] was as he did not read: Tribunal Tr. at 13.4-5.
I do not accept the applicant’s submission that the answers the applicant gave were “unresponsive” and that the interpreter should have told the Tribunal that the applicant could not understand the word “jianli”. As pointed out by the first respondent:
the applicant's response that “I can't read the books so I don't know” [who was the founder of Falun Gong] was the same answer given after the question was asked a second time: Tribunal Tr. at 13.3-5.

Example 5

Ms Qian asserts that the applicant and the interpreter did not understand each other on the difference between Jinqu’ (joined in ) and ‘jinzhi’ (banned). The applicant thought that the Tribunal question to him was when did he join Falun Gong in China, whereas he was being asked when Falun Gong was banned in China (TT, pp 11-12) (Qian Report, p 5).
The applicant submits in support of this example that:
Ms Qian’s evidence in cross examination was that the applicant did not understand the word ‘banned’, and thought the interpreter was saying the word ‘joined’. The evidence demonstrates that the interpreter incorrectly interpreted the applicant’s first use of ‘joined’ and said ‘banned’ in the example cited in the affidavit. From then on the interpreter correctly interpreted the applicant’s use of the term ‘joined’ (as ‘joined’), however the applicant still misunderstands the Interpreter’s use of the word ‘banned’ (for ‘joined), and keeps responding in a way consistent with an incorrect understanding that the [Tribunal] is asking him questions about joining Falun Gong. This continues to the end of page 15 [of the Tribunal transcript]. Whilst the interpreter corrects her mistake very quickly in the English, no explanation appears to be given to the applicant to allow him to resolve his mistake/ confusion.
I consider that the Tribunal transcript demonstrates that, notwithstanding some initial misunderstanding, the applicant eventually correctly understood the distinction between the words “ban” and “join” and responded to the question concerning when Falun Gong was banned in China, as follows:
Tribunal Member: “I’m not asking when you joined in. I’m asking when did the Chinese authorities ban Falun Gong.”
Applicant:“I don’t know since I don’t read. And when I joined Falun Gong the teacher didn’t tell me” (TT, p 14.9).

Other examples of alleged interpretation errors

The applicant relies upon the following further examples of alleged interpretation errors or confusion between the applicant and the interpreter.
The applicant asserts that:
when asked to identify the main text of Falun Gong the interpreter incorrectly failed to interpret the word ‘yi nian’ into the English language and thus conveyed the meaning that the word ‘yi nian’ was advanced by the applicant as a title of a well known book regarding Falun Gong: (Tribunal transcript 13-14). This assumed significance as the adverse decision against the applicant explicitly noted “[t]he applicant did not know that the text Zhuan Falun was the main text of Falun Gong. He said it was “Yi niam”.
Ms Xie concedes in cross-examination that she would “most likely” have translated the word ‘yi nian’ into English (CT, 9 September 2008, p 44). Nonetheless, it is clear from the evidence of both Ms Qian and Ms Xie that while the Tribunal was not provided by the interpreter with an English meaning of the word ‘yi nian”, the applicant equally did not give the correct answer to the Tribunal question regarding the name of the main text of Falun Gong. I accept the submission by the first respondent that:
there is no indication in the transcript or affidavit evidence to demonstrate that the applicant did not understand the question that was being asked of him. No prejudice could therefore have been caused to the applicant by any alleged error.
The applicant also asserts that confusion was caused by the failure of the interpreter to translate “Lu Shi” into English during the opening stages of the Tribunal hearing. The Tribunal transcript indicates that the interpreter had referred to “Ms Lu Shi” rather than translating the words “Lu Shi”, (which means “lawyer” in Fuqing):
Tribunal:Now [applicant] I did not know you were coming to the hearing today because you have not responded to your invitation.
Interpreter: The letter was still with Lu Shi and I haven’t got the letter. They didn’t give me the letter.
Tribunal:So how did you know to come here today, if you did not have the letter?
Interpreter: They just tell me about the hearing.
Tribunal:who is “they”
Interpreter: Ms Lu Shi
Tribunal:Who is Lu Shi? I don’t know you are talking about
Interpreter: Lu Shi is the person who helped me to apply (TT, p 4).

According to the applicant’s submission:
Late in the course of the cross examination on the first day [of the present Court hearing], a line of cross examination designed to test the applicant’s general honesty was embarked upon concerning the use by him of the word “Lu Shi”. Indeed, this line of cross examination necessitated an adjournment once it became clear (the Court’s interpreter doing his best to ensure no misunderstanding in the proceedings) that the word “Lu Shi” meant lawyer.
It is now an accepted fact, by operation of a Notice to Admit Facts, that “Lu Shi” does in fact mean lawyer in the Fuqing language.
That fact is consistent with the evidence volunteered by the applicant in his evidence in chief spontaneously and well before any cross examination on the point as to confusion at the Tribunal concerning the use of ‘lawyer’ (CT 28 May 2008 at 70.6-.19
The cross examination was leading to a point where sufficient confusion about the word “Lu Shi” as being the name of a person who helped the applicant to prepare his application (CT 28 May 2008 91-94) which could have involved an adverse view of credit (more accurately character) similar to the confusion which occurred (uncorrected) in the Tribunal on the same issue.
I do not consider that this error on the part of the interpreter materially affected the Tribunal’s view of the applicant’s evidence and his credibility. There is no suggestion that the Tribunal attached any significance to the matter. The Tribunal did not refer to it in its Findings and Reasons, and there are no findings of fact made by the Tribunal which were dependent on this matter.
The applicant further asserts that there were communication difficulties between the applicant and the Tribunal during a series of questions by the Tribunal regarding the failure of the applicant to mention in his protection visa application his claim that he had been detained in 2002 (CT, 8 October 2008, p.22, referring to TT, pp.9-10).
I consider, however, that a fair reading of the Tribunal transcript, concerning the questions put to the applicant about his claim to have been detained in China from May to October 2002, demonstrates that any difficulty which arose in this regard, was as a result of the applicant repeatedly failing to answer the Tribunal’s questions, which the Tribunal was entitled to put to him. The Tribunal drew to the applicant’s attention that he was not answering its questions and sought on a number of occasions to obtain a response from him.
I accept the submission by the first respondent in this regard that:
The applicant's expert [Ms Qian] did not suggest that there was any error in the manner in which the [Tribunal’s] questions were interpreted to the applicant, and the applicant did not give evidence that he did not understand the questions being put to him.
The applicant also relies upon comments made by the interpreter during the Tribunal hearing to the effect that the applicant was not speaking clearly. These matters are addressed by Ms Xie in her affidavit, sworn 14 November 2007 (the first Xie affidavit). Ms Xie stated that, after she had listened to the tape of the Tribunal hearing, she concluded that the applicant gave his answers at the Tribunal hearing in adequate Mandarin, which could be understood and was adequately interpreted (at paragraphs 6-9). She stated that:
I say that from listening to the hearing tape it seems to me that the applicant spoke adequate Mandarin – he used proper words, proper form and proper sentence construction (first Xie affidavit, paragraph 11(a)).
She concluded that:
Having listened to the hearing tape I say the standard of interpretation was adequate enough for the applicant to understand the questions put to him and for his answers to be correctly represented to the Tribunal member (first Xie affidavit, paragraph 12).
Ms Xie further stated that:
I say that the applicant seemed to understand Mandarin and did not appear to have any significant difficulty understanding the interpreter particularly when the interpreter used the same word in Mandarin many times. I say the applicant spoke in accurate Mandarin when giving short and simple answers and could express himself adequately in Mandarin when giving longer explanations (second Xie affidavit, paragraph 2) …
I say the applicant spoke with a Fujian accent but I also say the interpreter understood the applicant and when there were difficulties in the interpreter understanding the applicant’s accent these were resolved during the course of the [Tribunal] hearing (second Xie affidavit, paragraph 3).
I accept the evidence of Ms Xie on these matters (see below).

Expert evidence of Ms Xie

Ms Cathy Yong Xie, a NAATI accredited interpreter at level 3 in the Mandarin language was called as an expert witness in the respondent’s case. She was of the opinion that overall, during the course of the Tribunal interview, the interpreter “did a good job”, that the standard of interpreting was adequate, and that the applicant’s command of Mandarin was “adequate to express himself freely.”
Mr Prince has sought to challenge Ms Xie’s evidence on various grounds, including:
Ms Xie’s evidence was affected by an assumption that the Chinese government was effective in imposing adequate level of Mandarin comprehension on the entire Chinese population (CT 9 September 2008 at69.04 to 69.25). This affected her assumption that the applicant had a reasonable comprehension of Mandarin (CT 9 September 2008 at 67.25 to 67.44, 68.48).
Ms Xie conceded that when she formed her opinions of the applicant’s level of comprehension of Mandarin (including the assumption that Mandarin is the universal and well known language of China) she did not know that the applicant was illiterate and had never received any education (CT 9 September 2008 at 67.25 to 67.44).
Ms Xie’s assumption that the applicant could speak Mandarin and that the Chinese authorities had been successful in imposing Mandarin knowledge and comprehension was based on an assumption that the applicant could read newspapers and attend school (CT 9 September 2008 at 86.00 to 86.40).
Ms Xie was not properly briefed and was not informed that the Tribunal interpreter was not NAATI accredited (CT 9 September 2008 at 77.35 to 77.45).
I found Ms Xie to be a most competent and impressive witness who demonstrated a depth of knowledge of her subject matter. I accept her evidence over that of Ms Qian to the extent of any differences between them.
I accept the opinion of Ms Xie, from her listening to the tapes of the Tribunal proceedings, that the applicant was able to speak accurately in Mandarin when giving short and simple answers, and could express himself adequately in Mandarin when giving longer explanations. I thus accept her conclusion that the applicant’s level of comprehension and understanding of Mandarin, was adequate at the Tribunal hearing.
I further accept her opinion that the standard of interpretation provided at the Tribunal hearing was adequate for the applicant to understand the questions put to him and for his answers to be correctly represented to the Tribunal. I reject the applicant’s submissions that her conclusion in this regard “should be given no weight” and that “the evidence of Ms Xie is supportive of the applicant’s submission that the interpretation did not meet the standards required to comply with the requirements of the Act.”

The applicant’s evidence in the present proceedings

In his affidavit, sworn 5 November 2007, the applicant claimed that:
I did not understand a word the interpreter used or a question that she asked [emphasis added], I would ask her for clarification. If I still did not understand what she was saying I would simply guess what was being asked and would respond accordingly. I know that many times I guessed wrongly because the Tribunal member kept asking me the same questions after I had already responded to it (paragraph 42).
However, contrary to his affidavit evidence, on a number of occasions during cross-examination, the applicant conceded that he could understand, and speak, at least some Mandarin, as demonstrated in the following exchange of questions and answers (at CT, 9 September 2008, pp.9-17):
MS WONG: Sir, are you able to say, "I joined FalunGong" in Mandarin?
INTERPRETER: Yes, I do know.
MS WONG: And can you say that you joined FalunGong in May 1999 in Mandarin?
INTERPRETER: Yes.
MS WONG: And are you able to say in Mandarin, "If I practised FalunGong I could apply for protection as a refugee"?
INTERPRETER: FalunGong and refugee - yes, I heard that. When I home I've heard that FalunGong protect refugee.
MS WONG: If I could ask the question again, sir? The question is, are you able to say in Mandarin, "If I practised FalunGong I could apply for protection as a refugee"?
INTERPRETER: This is not the problem whether I can speak - I can speak any sentence in Mandarin or not because I suffer persecution in China and I didn't know that FalunGong practitioner can apply for protection for refugee. But I've heard in China that in Australia you can take part in FalunGong freely so I came here (CT, pp 11.47-12.22).
and
MS WONG: When you said you can only speak a couple of sentences [in Mandarin] to your neighbours in Fan Ming City, the fact is, sir, that you could communicate in Mandarin with them also, isn't it?
INTERPRETER: What do you mean by "communicate"?
MS WONG: You could speak with them in Mandarin on a range of topics?
INTERPRETER: Yes, I admit that I can speak some Mandarin but how can you believe me? How can I make you believe me that sometimes I don't know how to speak in Mandarin? (CT, pp 17.5-17.15):
and
MS WONG: And I say to you, sir, and you can agree or disagree that you were able to communicate with your customers in Mandarin.
INTERPRETER: Yes, I use Mandarin when I can speak Mandarin (CT, pp 17.43-17.46).
I accept that the above quoted passages from the applicant’s evidence, in the words of the first respondent, “substantially undermined” his affidavit evidence that his command of Mandarin was “very poor”.
Furthermore, I accept the evidence of Ms Xie that, from her listening to the tape of the Tribunal proceedings, the applicant only sought clarification from the interpreter on one occasion (first Xie affidavit, paragraph 8).
I also consider that the applicant sought to distance himself in his oral evidence from any involvement in or knowledge of the contents of both his protection visa application and his Tribunal application, (even whilst stating at the Tribunal hearing that his Statement accompanying his application was true and correct), to overcome the fact that a Mandarin interpreter had been requested in both these applications.
I further consider that the applicant sought to distance himself in cross-examination from any use by him of Mandarin in the ordinary incidents of his life. Indeed, he originally sought to convey to the Court the impression that all communication in Mandarin, with other people, was through his wife. Particularly significant in this respect, was his evidence that he spoke through his wife when speaking to his Falun Gong friends. This evidence becomes all the more incredible in the context of his claims in his protection visa application that:
I let my relatives and friends know about the miracle curing of my illness. When they asked how it happened, I would tell them that it was Falun Da Fa that cured it. And then if someone interested in it, I would come to visit him/her to teach him/her to learn. By these methods, I have got more than 30 people joined Falun gong [emphasis added].
Further examples of the applicant seeking to distance himself from his capacity to speak Mandarin, are found in his evidence in cross-examination on the first day of the Court hearing (CT, 28 May 2008, pp.72-81) where he stated that he did not go out often, usually with his wife; that he did not know what goods were needed to repair tyres in his business, his wife did; that his wife did all the communicating and contacting everyone; that she worked with him changing the tyres; that she spoke to all the customers; and spoke to his fellow Falun Gong supporters on his behalf.
However, on the second day of the Court hearing, (CT, 9 September 2008, p.17), the applicant gave evidence that he communicated with neighbours and with customers in Mandarin “when I can speak Mandarin.” This evidence was clearly inconsistent with his previous evidence on these matters.
I also accept the submission by the first respondent that:
His evidence is also contradicted by the transcript of the RRT hearing itself, which demonstrates that the Applicant was able to form sentences, had an adequate vocabulary in Mandarin and was able to give responsive answers to the questions asked of him by the RRT. Nor did the Applicant make any complaint during his hearing before the RRT about the interpretation services offered or his inability to understand what occurred at the hearing, even though the Member offered the Applicant an open-ended opportunity to tell the RRT anything further he wished to say: see RRT Tr. at 16.
In SZKBL v Minister for Immigration & Citizenship [2008] FCA 1064, in circumstances not materially distinguishable from the present, Reeves J stated that (at [22]-[23]):
As to the appellant’s related complaint that she was unable to give her oral evidence properly and accurately, nowhere in the transcript does she complain that she has not been able to properly explain herself, nor that she has been unable to properly put her claims to the Tribunal. In addition, at the conclusion of the hearing, the Tribunal offers the appellant an open ended opportunity to say anything more she wishes to say, an opportunity which she accepts …
As to my initial concerns about the tenor of some of the Tribunal’s questions, I have ultimately concluded that this arose out of the evasive and vague responses the appellant gave to many of the Tribunal’s questions, rather than as a result of any impropriety on the part of the Tribunal. It is clear that the Tribunal member was forced to repeat her question to the appellant a number of times before receiving any meaningful response to the question she was asking. The questions were simple and direct and there is no indication that the appellant’s repeated failure to address the question was caused by emotional distress or interpretation problems …
The same conclusion should be reached in the present case (first respondent’s Supplementary written submissions, paragraphs 36-37).
Overall, I did not find the applicant to be a credible or reliable witness in his evidence to this Court. I accept the evidence of Ms Xie that he had an adequate command of the Mandarin language when he gave evidence before the Tribunal. I am satisfied that his recent claims, which he has never previously raised, concerning his lack of knowledge of the contents of his protection visa and Tribunal applications, and the failure of the Tribunal to provide him with adequate interpreting services, have been fabricated to support his second application to this Court.
I do not consider the fact that the interpreter was not NAATI accredited in Mandarin denied the applicant procedural fairness in the circumstances of this case. I note that s.427(7) of the Act itself poses no such accreditation requirement. Nonetheless, even if it might otherwise be suggested that the applicant was thereby denied procedural fairness, apart from the isolated examples provided by Ms Qian in her very careful scrutiny of the matter, the applicant has not sought to assert that the interpreter was otherwise deficient in Mandarin. I consider that the examples of miscommunication relied upon by the applicant do not demonstrate areas of material misunderstanding. As stated above, I accept the evidence of Ms Xie, also upon her very careful scrutiny, that the “standard of interpretation was adequate enough for the applicant to understand the questions put to him and for his answers to be correctly represented to the Tribunal member” (first Xie affidavit, paragraph 12).
As relevantly observed by Smith FM in SZKJM v Minister for Immigration [2008] FMCA 23 at [15]:
The present evidence shows a number of points where it is agreed that some ‘better’ translations into, and from, Mandarin are available with hindsight than were given at the time by the interpreter at the hearing. However, I am not satisfied that similar points, and the same quantity of similar points, could not be made in relation to most hearings in the Tribunal, or in this Court, where reliance on an interpreter is inevitable. Perfect interpreting cannot reasonably be expected in any case [emphases added].
I am therefore not satisfied that the matters relied upon by the applicant, either individually or collectively, demonstrate that the standard of interpretation at the Tribunal hearing was such that the applicant was materially hindered, or prevented, from giving evidence at the Tribunal hearing, or that the Tribunal was hindered or prevented from hearing that evidence, or that any errors made by the interpreter at the Tribunal hearing were material to any conclusions of the Tribunal, adverse to the applicant.
This is clearly not a case where the interpreter has been demonstrated to be so incompetent that the applicant was denied the opportunity of giving meaningful evidence before the Tribunal: Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [38].
Furthermore, having not accepted the applicant as a witness of truth on these matters and having reached the conclusion that he had an adequate understanding and command of Mandarin, I do not consider that he was unfairly prejudiced in the giving of his evidence before the Tribunal.
I thus detect no procedural unfairness on this basis and am satisfied that no jurisdictional error has been demonstrated under this ground.
Accordingly, Ground 1 of the further amended application is rejected.

Ground 2 (paragraph 23) of the further amended application

Ground 2 of the further amended application states that:
The second respondent erred in law in arriving at its decision by failing to comply with s.425 of the Migration Act
Particulars
(a)The applicant repeats paragraphs 3, 4 and 15 to 20 above.
To succeed in demonstrating a failure to comply with s.425 of the Act by reason of inadequate interpreting services, an applicant must establish that:
(a)the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal; or
(b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal, adverse to the applicant: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17]-[18].
These matters have already been considered in the context of the specific examples raised by the applicant under Ground 1 above, and under Ground 1 generally. I adopt my reasoning therein in the present context.
The applicant makes the further submission under this ground that:
The approach of segregating and analysing in isolation each example of misunderstanding is flawed. The evidence must be considered as a whole.
I note that the above approach, would appear to be clearly contrary to the approach adopted by the applicant under Ground 1 above, as evidenced by the discrete examples relied upon in that context. I accept, however, that each example should be considered in its particular context and in light of the evidence as a whole.
The applicant also submits that:
On a proper analysis of the evidence in its entirety, it is clear that the Tribunal built an impression that the applicant was being evasive and that the misunderstandings between the interpreter and the applicant undoubtedly contributed to that view, irrespective of whether some particular instances of the confusion were ultimately resolved. Even in the circumstances where the Minister contends the misunderstandings were resolved or were immaterial to the Tribunal’s conclusions, this does not exclude the possibility that the misunderstandings affected the Tribunal’s impression of the applicant in circumstances where impression was crucial to the tribunal’s conclusions.

I do not accept this submission. Again, these matters have already been dealt with under Ground 1 above. It is clear from the transcript of the Tribunal hearing that both the interpreter and the Tribunal experienced difficulties with the applicant’s answers on certain occasions. I consider, however, that the any problem in this regard, lay primarily with the evasive, vague and sometimes irrelevant responses given by the applicant to many of the Tribunal’s questions, rather than as a result of any interpretation or communication difficulties. Also, some of the answers given by the applicant on questions material to his application, for example, the name of the principal Falun Gong text, were plainly wrong. It is also clear that the Tribunal was required to repeat questions asked of the applicant a number of times before receiving any meaningful responses. The questions were simple and direct and there is no indication that the applicant’s repeated failure to address some of them was caused by any interpretation or communication problems.
As the applicant’s written submission itself relevantly concedes:
Indeed the [Tribunal] transcript reveals that the applicant’s answers are frequently unresponsive to the specific questions asked and, at times, unintelligible.
In assessing the applicant’s evidence and whether his claims had been fabricated, the Tribunal made it clear that it took into account his statement that he was unable to read (CB 58). Beyond that, it was for the Tribunal to reach conclusions as to the credibility of the applicant’s claims, based on the evidence before it. The Tribunal was not required to accept uncritically any or all of the allegations made by the applicant: Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451-2. As Heerey J observed in Selvadurai v Minister of Immigration & Ethnic Affairs & J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]. I consider that a fair reading of the Tribunal decision demonstrates that it was open to the Tribunal, based on the evidence before it, to reach the conclusion that the applicant had invented his claims concerning his involvement in Falun Gong activities in China.
The applicant further submits that:
The transcript of the Tribunal hearing plainly shows that the [Tribunal] Member never comments that she is satisfied that a misunderstanding has been resolved and that she is confident that the applicant is telling the truth. There is simply no indication that the Member recognised that misunderstandings existed between the interpreter and the applicant, and used such recognition to the credit of the applicant or to mitigate the impression of the applicant being evasive.
As stated above, I consider that any problem lay primarily with the evasive and vague responses that the applicant gave to many of the Tribunal’s questions, not with any alleged misunderstanding between the interpreter and the applicant. Furthermore, s.425 does not require the Tribunal at the hearing to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. As observed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47]-[48] in this regard:
It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …
…as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. if this were a rule of natural justice only the most talkative of judges would satisfy it …”
In conclusion, I do not consider that the interpreting service provided to the applicant prevented him from effectively giving evidence at the Tribunal hearing, nor that any interpretation errors that may have been made, were material to the conclusions of the Tribunal, adverse to the applicant.
Overall, I am satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act. The Tribunal at the hearing identified and put to the applicant the determinative issues in this case, in particular the plausibility of his claims and gave him the opportunity to give evidence and make submissions thereon in accordance with the principles in SZBEL at [33]–[48] before reaching its conclusions. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and his lack of credibility, in reaching its decision.
I thus detect no breach of s.425 in this case and am satisfied that the applicant was accorded procedural fairness in accordance with the statutory regime.
Accordingly, Ground 2 of the further amended application is rejected.

Ground 3 (paragraph 24) of the further amended application

Ground 3 of the further amended application states that:
Further and in the alternative, the second respondent failed to comply with s.91R(3) of the Act in that it took into account two actions of the applicant whilst he was in Australia in circumstances where it was not satisfied that conduct in Australia was otherwise than for the purpose for strengthening the applicant’s claim to be a refugee.
Particulars
The second respondent considered that in the course of the Refugee Review Tribunal hearing the applicant:
(a)“made up a substantial new claim namely that he was detained from 17 May 2002 until 6 October 2002”; and
(b)provided the second respondent with a facsimile of a photograph and that the oral evidence given by the applicant about its origins was contrary to the evidence on the facsimile itself.
Sub-section 91R(3) provides that the Tribunal must “disregard” any “conduct engaged in by [an applicant] in Australia” unless the applicant satisfies the Tribunal that he or she “engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.”
In SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105, the Full Federal Court stated that a Tribunal would be in breach of s.91R(3) if it went beyond disregarding an applicant’s conduct in Australia and sought to bring that conduct into account in determining whether the applicant satisfied the requirements for refugee status.
In support of this ground, the applicant submits that:
In the present case, contrary to s 91R(3), the Tribunal took into account two separate actions of the applicant whilst in he was in Australia (adversely to him) in circumstances where the Tribunal had not been satisfied that the conduct in Australia was engaged in otherwise than for the purpose of strengthening refugee claims.
The conduct in Australia which the Tribunal failed to disregard was as follows:
a.Firstly, the Member considered that in the course of the RRT hearing the applicant “made up a substantial new claim namely that he was detained from 17 May 2002 until 6 October 2002”. She later concluded “(l)ooking at the evidence as a whole, the Tribunal is satisfied that the making of this substantial new claim at the hearing indicates that it has been fabricated.”
bSecondly, the Member considered that at the same hearing the applicant provided the RRT with a facsimile of a photograph and that the oral evidence given by the applicant about its origins was contrary to the evidence on the facsimile itself. She concluded that “(i)n consideration of the evidence cumulatively, the Tribunal does not give any weight to the copy of the photograph provided to the Tribunal” …
In both cases the applicant’s conduct can only be said to have been engaged in for the purpose of strengthening his claim to be a refugee. Pursuant to s91R(3) of the Act, the Tribunal was required to disregard it and her failure to do so caused the decision to fall into jurisdictional error.
I do not accept this submission. I accept that the Tribunal’s findings regarding the oral and documentary evidence provided by the applicant, are findings of primary fact to which s.91R(3) does not apply. As relevantly stated in SZJGV at [22]:
91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin), the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application.
To adopt the construction of s.91R(3) sought by the applicant would require a Tribunal to disregard all oral and documentary information provided by an applicant while in Australia, both before and at the Tribunal hearing, unless the applicant satisfies the Tribunal that he or she provided that information “otherwise than for the purpose of strengthening the person's claim to be a refugee.” Such a construction would provide a patently illogical outcome, given that the ostensible purpose of an applicant providing information is to seek to establish his or her claim to be a refugee. I consider that the construction for which the applicant contends, misconstrues the proper characterisation of the words “conduct … in Australia” for the purposes of s.91R(3).
I accept the submission by the first respondent in this regard that:
The only conduct [in the present case] which could be said to have occurred in Australia was the making of the claim itself. However, s.91R(3) cannot apply to the mere fact of making a claim, as this would require the Tribunal to disregard all of the applicant's evidence.
I thus detect no breach of s.91R(3) of the Act by the Tribunal on this basis.
Accordingly, Ground 3 of the further amended application is rejected.

Conclusion

The further amended application is dismissed on the grounds of res judicata.
In the alternative, the further amended application is dismissed on the grounds of Anshun estoppel.
In the further alternative, the Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application, amended application and further amended application before this Court are dismissed.
I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 22 December 2008