SZKFD v Minister for Immigration and Anor (No.2)
[2008] FMCA 823
•26 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKFD v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2008] FMCA 823 |
| MIGRATION – Application for reinstatement – explanation for inability to attend scheduled final hearing not satisfactory – merits of the substantive application to the Court – no merit in substantive application – no jurisdictional error – application for reinstatement dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426 Migration Regulations 1994 (Cth), reg.4.35D Federal Magistrates Court Rules, rr.13.03A(c), 16.05 |
| SZKFD v Minister for Immigration and Anor [2008] FMCA 327 SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 SZEFM v Minister for Immigration& Multicultural & Indigenous Affairs [2006] FCA 78 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 241 Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 Xiao v Minister for Immigration and Multicultural Affairs[2000] FCA 1472 Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SZGBT v Minister for Immigration and Citizenship [2007] FCA 565 Ex Parte Applicant M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 86 | ||
| Applicant: | SZKFD | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 495 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 April 2008 |
| Date of Last Submission: | 10 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms B Anniwell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 28 March 2008 is dismissed.
The applicant pay the first respondent’s costs of the application set in the amount of $1,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 495 of 2007
| SZKFD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 28 March 2008 that orders made on 10 March 2008 dismissing an earlier application made by the applicant on 14 February 2007 under the Migration Act 1958 (Cth) (“the Act”), pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (“the Rules”) because of the non-appearance by the applicant at the scheduled final hearing in this matter (see SZKFD v Minister for Immigration and Anor [2008] FMCA 327) (“the earlier Judgment”).
Background
In her originating application of 14 February 2007, the applicant sought review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 12 January 2007, and notified to the applicant on 23 January 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Substantive Application to the Court
The grounds in the application made on 14 February 2007 are in the following terms:
“The Grounds of the Application are:
1.I was struck by dizziness on 14/12/2006. RRT did not give me enough time to recover;
2.Because of the dizziness and huge pressure at the hearing my brain went blank;
3.The interpreter has made a lot of mistakes as I put forward on my written response on 12/01/07. RRT did not exercise their power properly and give rise to legal error.”
In support of her current application, the applicant has also filed an affidavit made on 12 February 2007, and forwarded to the Court, by facsimile, on 10 march 2008 copies of a medical certificate and clinical notes. Copies of these documents were also before the Court on 14 March 2008 when orders were made dismissing the original application.
Hearing for Reinstatement
At the hearing to have her original application reinstated, the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms B Anniwell appeared for the first respondent.
The applicant stated that that she was absent from Court on the previous occasion because she was sick, and had sent a medical certificate in support of that claim. She submitted that it would be “unreasonable” were her case to be rejected due to the fact that her medical condition prevented her from attending Court. The medical certificate and clinical notes which were before the Court on 14 March 2008 make reference to the applicant having been the subject of a robbery in January 2008, being examined by a medical practitioner on 8 March 2008. Although it was recorded by the medical practitioner that the applicant presented with “clinically no abnormality”, the applicant appears to have been sent for a brain scan: “she wishes to have CT brain scan check up” (see [2]-[3] of the earlier Judgment).
The applicant now claims that the police had a record of her having reported this robbery, but the applicant did not produce any copy of any police record, or report, to the Court.
At the hearing for reinstatement, I explained to the applicant that although I had not accepted her explanation (provided by way of the medical certificate and clinical notes) for her failure to attend the hearing on the previous occasion, that I was prepared to re-visit the issue in light of whatever explanation the applicant wanted to put before the Court now.
Second, that I was prepared to look at the merits of the substantive application that the applicant had previously put before the Court to determine whether any issue arose that in the interests of justice should be allowed to be heard at a final hearing.
In this regard I asked the applicant to elaborate on her complaints about the Tribunal decision. In effect to provide her with the opportunity to make her case had she appeared before the Court on the earlier occasion. She submitted that she was “actually a refugee”, and complained that the Tribunal said that she was not a refugee.
Further Background to the Current Proceedings
The originating application to the Court was made on 14 February 2007. On 22 March 2007, the applicant appeared before a Registrar of this Court. She was assisted on that day by an interpreter in the Mandarin language. Amongst other orders, the Registrar made an order granting the applicant leave to file any further amended application setting out complete particulars of the grounds to be relied upon.
The applicant was given until 18 May 2007 for that purpose. The matter was set down by the Registrar for callover on 22 June 2007. On 2 June 2007, the applicant sent a communication by facsimile to the Court claiming that she could not attend the callover on that date due to a medical appointment. But nonetheless appears to have ultimately attended on that day. The matter was set down for final hearing. Her failure to appear at the final hearing on 10 March 2008 was the subject of consideration in the earlier Judgment.
The Applicant’s Explanation
I explained to the applicant that the task for the Court was not only to consider the explanation for her failure to attend at the final hearing, but also whether any useful purpose could be served (even if I was not to accept her explanation now) in setting the matter down for final hearing again. In this regard, the applicant was told of the difference between the roles of the Tribunal and the Court, and the Court’s function being directed not to the question as to whether or not she was a refugee, but as to whether particular legal error could be discerned in the Tribunal’s consideration of that question.
I pointed out to the applicant that apart from making her application, which consisted of highly general assertions, she had, despite the opportunity and time (nearly one year), done nothing to further her case before the Court by the provision of any particulars to her complaints, let alone the filing of any relevant evidence before the Court. The applicant submitted that, given her language difficulties, she had relied on her migration agent to put relevant documents. (I understood this to relate to proceedings before the Court).
Ms Anniwell sought to cross-examine the applicant on the matters in her affidavit of 28 March 2008 (filed in support of her current application), and matters consequent to that affidavit. The applicant readily agreed.
The Applicant’s Evidence
Amongst other things, the applicant was unable to satisfactorily explain in her evidence, inconsistencies as to the date on which the claimed robbery which caused her injuries (which subsequently were the basis of her non-attendance at the final hearing) actually took place. The doctor’s report refers to this incident as having occurred in January 2008, whereas the applicant’s evidence was that it had occurred in mid-November 2007.
Nor, despite giving evidence that she had reported the robbery to the police, was she able to satisfactorily explain why she was unable to provide a copy of the police report to the Court.
Further, despite giving evidence that she had “constant headaches” since claiming to have been injured in the robbery in November 2007, she waited until 8 March 2008 to consult a doctor (being three days before the scheduled final hearing).
Also the applicant gave evidence that the doctor “recommended” that she had to have a brain scan. The applicant was unable to satisfactorily reconcile this evidence with what was asserted in the clinical notes (a copy of which she submitted to the Court) where the doctor asserted: “Clinically no abnormality. She wishes to have CT brain scan check up.”
The applicant also gave evidence in relation to her assertions in the grounds as stated in her originating application to this Court that she was “struck by dizziness” on 14 December 2006 (the date of the hearing before the Tribunal), and because of the dizziness, her mind went “blank” at the hearing before the Tribunal.
In this latter regard, I note that the Tribunal invited the applicant to a hearing by letter dated 30 October 2006 addressed to the applicant’s migration agent who assisted the applicant before the Tribunal (see the Court Boot – “CB” – filed by the first respondent in the earlier proceedings at CB 57). The scheduled date for the hearing was 15 December 2006. The applicant responded to this invitation and indicated that she would attend (see CB 60). This response was dated 3 November 2006 and was sent by facsimile communication to the Tribunal. On 14 December 2006, the applicant’s migration agent sent a facsimile communication to the Tribunal (CB 61) notifying the Tribunal that the applicant “is currently suffering from dizziness due to hypertension”, and would therefore be unable to attend the scheduled hearing the next day, and enclosed a medical certificate which is reproduced at CB 62 (also dated 14 December 2006).
Consideration of the Explanation of the Failure to Attend at the Final Hearing
In all, I am not satisfied that the applicant has provided a satisfactory explanation for her failure to attend at the final hearing of her matter before the Court. She was unable to satisfactorily explain inconsistencies in her evidence, and inconsistencies between her evidence and medical certificates that she herself has considered to be provided to the Court.
In my view, in making her applications both to the Tribunal and subsequently to the Court, the applicant has sought to extend her stay in Australia by avoiding attending at hearings until ultimately left with no option but to attend.
Her evidence before the Court was that she was injured in November 2007, yet waited until March 2008, three days before the scheduled final hearing of her matter, to consult her doctor who then inexplicably referred to her injury having occurred in January 2008, instead of November 2007. This remains unexplained. It reveals the implausibility of the applicant’s explanation for her failure to attend at the final hearing.
I am further strengthened in this view by the applicant’s own evidence given before this Court when the applicant was asked as to how, notwithstanding the evidence that she suffered from “constant headaches” and had medical difficulties, she was able to attend Court in relation to the application to have her case reinstated. The applicant’s evidence was: “if I failed to turn up today it basically means I have no way to explaining (sic: explain) myself”. In context, I understood this as the applicant perceiving her attendance to be a necessity that she could no longer postpone or avoid.
The applicant also gave evidence that she understood that as at 22 March 2007 (the first Court date before the Registrar), she was given the opportunity to file and serve an amended application giving complete particulars of grounds on which she sought to rely, but because of her “language barrier”, entrusted the prosecution of her case, that is, the filing of subsequent documents to her migration agent. The applicant confirmed that the agent was not a lawyer. Ultimately, it wishes evidence that she understood that the filing of documents in her matter before the Court was her responsibility.
In her affidavit of 28 March 2008 which was read into evidence before the Court, and which the applicant had filed at the same time as filing her application to reinstate her matter before the Court, the applicant asserted that her husband had “faxed” a “certificate of sickness” to the Court on 9 March 2008 in relation to the scheduled final hearing for 10 March 2008, and that this document was “faxed” again on 10 March 2008 (see paragraphs [3] and [4] of her affidavit).
The applicant gave evidence that she married her husband on 1 September 2007, and that her husband was “a Westerner”, and was “Australian” and an “English speaker”. In light of her earlier evidence that she needed to rely on her migration agent to submit documents to the Court, she was unable to satisfactorily explain why she did not obtain assistance from her English-speaking husband for this purpose (at least after 1 September 2007).
In all, I am not satisfied that the applicant has provided a satisfactory explanation for her failure to attend at the scheduled final hearing set down in this matter on 10 March 2008. In my view the applicant’s own evidence confirms that the applicant’s actions in seeking a medical certificate was done for the purpose of extending the time that her matter (both in the form of her originating application and her application for reinstatement) could remain before the Court.
Nonetheless, notwithstanding the above, I did consider whether it is in any event appropriate to provide the applicant with a further opportunity for a final hearing. In this regard, that is whether there is any prospect of success in her application if the matter were to be allowed to go through to a final hearing, or whether such action would be an exercise in futility.
To ultimately succeed before the Court, the applicant would have to establish, or (given her unrepresented status before the Court) the Court would need to otherwise discern, jurisdictional error on the part of the Tribunal.
The Applicant’s Claims to Protection
The following background may be discerned from the Court Book.
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 28 May 2006, and applied for a protection visa on 28 June 2006 (CB 1 to CB 32, with annexures). The applicant was assisted by a migration agent in the making of this application (see CB 32).
The applicant’s claims to protection were set out in a statutory declaration attached to her application (CB 15 to CB 19). In this declaration she claimed to have left China to escape from “political persecution by the PRC authorities”. The applicant explained that she had been employed at the “Xiashan Industrial and Commercial Bureau”. On her own initiative she sought to investigate the production and sale (through various outlets, including restaurants) of “very poor quality” beer, which was nonetheless represented to be beer “with a famous brand”. The applicant claimed to have reported this practice to a superior in her organisation after becoming aware of the practice when she attended a birthday party in a restaurant. When, some several months later, no investigation appeared to have taken place, yet the practice of selling the poor quality beer continued, the applicant confronted her supervisor who told her “that it had not been my business”.
Nonetheless, the applicant claimed she pursued her own enquiries, and claimed through a friend to have made contact with a person who worked for a trading company that was one of the sales agencies for the beer in question. She “disguised” herself and sought entry to a “secret warehouse”, and found that thousands of boxes of the “questionable beer had been put there”. She ultimately submitted a report of her investigation to her “direct leader”, who praised her for her “great work”, but who asked her “never to disclose” the report to anyone else.
The following day (11 October 2005) when she arrived at work the applicant was called to her supervisor’s office where she found the “Deputy President of the Bureau”, the head of personnel affairs in her bureau, her supervisor, and two policemen. She was notified that she was suspended from her employment because she was suspected of involvement in “anti-government activities”, and was confronted with documents, being witness statements, from people who asserted that she had organised them to collect anti-government materials.
She was taken for questioning to the local (PSB) Security Bureau. While she “denied everything”, she was nonetheless detained in a “small dirty cell together with more than 10 female persons, thieves or prostitutes or drug dealers”, who were “instructed to mistreat me day and night”. Ultimately, she confessed in to her “anti-government activities”, but did so at the “instruction of the police and the PSB”. As a result, she was released, but warned never to engage in anti-government activities again.
Upon her release she found that she had been dismissed from her employment. Friends, and even some relatives, refused to approach her because she was regarded as anti-government. She further claimed that police from the local police station often came to her home to investigate her, and that her freedom had been threatened.
She subsequently learned that the “questionable beer” operation had been established and run by corrupt officials from within her own bureau and subsequently wrote a number of petitions “anonymously” which she sent to various government agencies. These came to the attention of the PSB and she was “questioned by police on several occasions”. But the authorities could not find any evidence against her. Following the arrest of her “contact” by the PSB, the applicant again became the target of the PSB but came to Australia so that she could escape political persecution by the PRC authorities.
The application for a protection visa was refused. The delegate’s decision record is set out at CB 37 to CB 44. The delegate found that while there were indications that a pattern of “gross, flagrant or mass violations of human rights exist in China”, and the applicant claimed to have an adverse profile with the authorities, the applicant was nonetheless able to legally obtain a passport and to legally depart China. The delegate relied on independent country information available to him which showed that persons who have legally obtained passports in China would have been “thoroughly vetted” by the PSB and that the applicant would have had difficulty in obtaining a passport and departing China if her claims were correct. The delegate found that the applicant’s ability to obtain a passport and “depart China indicates that the authorities do not have a real interest in the applicant” (CB 42.6). Further, that even if the applicant’s claims were to be accepted at face value, any difficulties would be at a local level involving corrupt local officials, which was a “criminal” matter, and that it was reasonable to consider that their actions were not supported by the government nor sanctioned by the government, and that in any event the applicant could relocate to another part of China.
The Tribunal
The applicant sought review by the Tribunal on 9 October 2006. She was again assisted by a migration agent (see CB 45 to CB 49).
The applicant was invited to a hearing before the Tribunal, and ultimately attended a hearing on 18 December 2006. The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 83 to CB 102 – see in particular CB 87.9 to CB 91.4).
Following the hearing, the Tribunal wrote to the applicant by letter dated 19 December 2006 (CB 72 to CB 73) (“the s.424A letter”) inviting her to comment on information which it said would be the reason, or part of the reason, for deciding that she was not entitled to a protection visa. The applicant responded, again by way of statutory declaration submitted under cover of a letter from her migration agent (CB 75 to CB 77).
The Tribunal understood the applicant’s claims to be based on the Convention ground of “imputed political opinion” (CB 99.4). The Tribunal found that the applicant “did not impress” “as a reliable, credible and truthful witness”. The Tribunal explained that in reaching this view it had regard to the “significant inconsistencies between her written and oral claims”, as well as other reasons which it set out in its decision record (CB 99.5).
In particular, the Tribunal found:
1)Inconsistencies between what she had put in her protection visa application and her evidence at the hearing, and that when these inconsistencies were put to her at the hearing she changed her evidence. The Tribunal found her explanations to be unsatisfactory and that her responses to its “424A letter” further “exacerbated” its concerns (CB 99.6 to CB 100.3).
2)Its concerns regarding her employment history were “further compounded” by her inability to provide information about the functions of the Bureau in which she said she worked “beyond the most banal generalities” (CB 100.4).
3)Inconsistencies between what she said in her application for a protection visa and at the hearing before it in relation to what was said to her by the PSB. The Tribunal found that when this inconsistency was put to her at the hearing she did not provide a “meaningful explanation” (CB 100.7).
4)It had doubts as to the “veracity” of the claim made in her original statement that following her release local police went to her house to investigate her because she did not raise this claim at the hearing as she would reasonably have been expected to do (CB 100.8).
5)The applicant’s claim, made for the first time at the hearing, that she formulated petitions demanding multi-party democracy, free speech, and human rights were not raised in her application for a protection visa, notwithstanding that this was “a significant matter”. The Tribunal found her explanation not to be satisfactory for failing to mention this “key issue” at an earlier time (CB 101.3).
6)Inconsistency between her claim made at the hearing that she denied being questioned by authorities at any point in relation to the petitions, when in her earlier statement she had claimed that she had been “personally questioned by the police for several times”. Further, that when this inconsistency was put to her at the hearing, she denied having been questioned in relation to the petitions, yet when this was put to her by way of its s.424A letter, following the hearing, she changed her evidence (CB 101.4).
7)Inconsistencies between her original statement and her evidence at the hearing in relation to her claim that she asked her contacts to send copies of petitions drafted by her to small restaurants and shops. The Tribunal found that she further changed her evidence when her written claims in this regard were put to her, and that the “shifts and changes in the applicant’s claims cast doubt on the reliability of her evidence” (CB 101.9).
In all, the Tribunal did not find the applicant to be a credible witness (CB 101 .9). It specifically found that “the totality of the applicant’s evidence shows a propensity to change and tailor her evidence in a manner which achieves her own purpose” (CB 101.10). In all, given its adverse credibility finding, the Tribunal rejected the factual basis of the applicant’s account relating to her claims, and was not satisfied that the applicant was a person to whom Australia owed protection obligations. It therefore affirmed the decision under review.
Submissions Before the Court
In all, the applicant’s submissions before the Court were to insist that the evidence she had given in relation to her illness as being the explanation for her inability to attend at the scheduled final hearing was true, and if the Court did not believe her she “may seek further appeal”. In relation to the Tribunal decision she insisted that she was “a genuine refugee”.
Ground One – The Applicant’s Difficulty Before the Tribunal
Ground one in the application asserts that on 14 December 2006 the applicant was “struck by dizziness”, and also because of the “dizziness and huge pressure”, that her brain went blank at the hearing. Although the Tribunal agreed to her representative’s request for an adjournment (from 16 December 2006 to 18 December 2006) this was not “enough time” for her to recover.
I should just note that the rescheduling of the hearing was done at the request of the applicant, and in those circumstances no jurisdictional error is revealed by any failure of the Tribunal to comply with the relevant prescribed notice to be given to the applicant in relation to the re-scheduling of the hearing. The Tribunal had already complied with its statutory obligations in this regard (ss.425, 425A, and s.426 of the Act, and reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”)) (SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 at [29] per Conti J, SZEFM v Minister for Immigration& Multicultural & Indigenous Affairs [2006] FCA 78)).
The applicant was notified of the scheduled hearing date by way of letter dated 30 October 2006, and the scheduled date was said to be 15 December 2006. The applicant sought an adjournment of the hearing date, and provided a medical certificate in support. The certificate is reproduced at CB 62, and dated 14 December 2006. The doctor certified that the applicant: “will be unfit for work from 14/12/2006 up to and including 16/12/2006”. The Tribunal agreed to the adjournment, and rescheduled the hearing for 18 December 2006, a date after the date on which the doctor certified that the applicant would be unfit (see CB 87.8).
The Tribunal squarely addressed this issue in its analysis of the applicant’s claims. At CB 100.1 to CB 100.3, the Tribunal stated:
“Having carefully observed the applicant in the course of the hearing, there was nothing in her evidence or demeanour to indicate to the Tribunal that she was experiencing difficulties in understanding and responding to the Tribunal’s questions. At no point did the Tribunal form the impression that the applicant was incapacitated or her ability to give evidence was hampered in anyway. She did not appear to be incoherent, confused or unable to respond to the Tribunal’s questions in a clear manner. The pre hearing medical certificate declared the applicant to be unfit for ‘work’ until 16 December 2006 and did not entail any information regarding the applicant’s inability to give oral evidence at a hearing. The hearing was held two days later and as already indicated the Tribunal did not form the impression that the applicant’s ability to give oral evidence was hampered in any way. The Tribunal is satisfied that the applicant’s state of health did not affect ability to give oral evidence to the Tribunal.”
There is nothing in the material before the Court to show that during the hearing, the applicant complained to the Tribunal of any dizziness at that time, or of any inability to answer the Tribunal’s questions because she was suffering from any dizziness. The Tribunal’s account of the hearing remains unchallenged before the Court by any evidence to the contrary brought by the applicant.
In its decision record, the Tribunal noted that the relevant medical evidence before it (albeit expressed as an “unfitness for work”), nonetheless stated the period for which the applicant was medically unfit as ending on 16 December 2006, and the hearing was held two days later on 18 December 2006 for which no medical certificate had been provided. Nor indeed was any further request for any further adjournment made sought by the applicant.
The applicant’s complaint that she was suffering from dizziness at the Tribunal hearing, was raised in response to the Tribunal’s s.424A letter in explanation for the Tribunal pointing out to the applicant the inconsistencies in her evidence at the hearing, and as between her evidence and her written statements. In addition to the applicant having stated that she currently suffered from dizziness due to hypertension, she claimed for the first time that she was under huge pressure mentally and psychologically at the Tribunal’s hearing, and that she was therefore “confused and even felt my brain completely empty sometimes”.
In all the circumstances, the Tribunal’s finding in this regard (as reproduced at [49] above) was open to it. In the absence of any evidence to the contrary from the applicant now, on what was before it, the Tribunal was entitled to form the view that it did. Further, the applicant’s assertion now that she was “dizzy” on 14 December 2006 and that the Tribunal did not give her enough time (presumably to recover), does not in my view (in the absence of any further evidence to the contrary – with reference in particular to NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 241), reveal on its own that the applicant was denied the opportunity of a fair hearing before the Tribunal. Ultimately, the medical certificate said she was unfit until 16 December 2006. No certificate was provided for 18 December 2006.
In all, therefore, this ground as pressed before the Court over one year after the making of the application, and in the absence of any further evidence put before the Court by the applicant (despite clear and lengthy opportunity to do so), would not succeed if the matter were allowed to go to a final hearing. Nor did the applicant indicate to the Court that she was in a position even at this late date to provide any further evidence in relation to this issue. As put before the Court, this ground has no prospect of success, and further, there was nothing put before the Court to indicate that this situation could change if the matter were allowed to go to a final hearing.
Ground Two – The Interpreter
Ground two in the amended application asserts that the interpreter made a “lot of mistakes” at the hearing, and refers the Court to the applicant’s written response to the Tribunal’s s.424A letter.
As noted earlier, the Tribunal sent a letter to the applicant following the hearing asking her to comment on inconsistencies in her evidence, and inconsistencies as between her evidence given at the hearing and what she submitted in writing.
In response to inconsistencies relating to her claims of having sent petitions to small restaurants and shops and to government agencies, the applicant responded in her statutory declaration (CB 76.7):
“5.I asked Ms Yang to send copies of my petition to small restaurants and shops instead of other government agencies. At the Tribunal’s hearing, I had a little of confusion while I was put relevant questions regarding this issue;
6.I indeed sent my petitions to different government agencies. At the Tribunal’s hearing, the interpreter failed to interpret my words properly and accurately. For example, what I said was actually “the municipal government” but not “the city government”. Another example, what I said was actually “a special government office which only deals with those complaint letters sent by ordinary people” but the interpreter has interpreted to “the Citizens Telephone Appeal Bureau” which is completely incorrect. Furthermore, my petitions have been sent to the following government agencies, the anti-corruption bureau, the discipline inspection committee, the people's congress, the people’s court, the people’s procurators, and so on. Unfortunately, I did not think that the interpreter at the Tribunal’s hearing was able to translate the name of those government agencies properly and accurately;”
In response to the Tribunal’s invitation to comment as to her various claims as to what was discussed during the course of her detention by the PSB (CB 73.3), the applicant responded (at CB 77.1):
“7.It is true that during the course of my detention the PSB never mentioned the beer matter to me and they never allowed me to mention it to them. However, I strongly believe that it would be owing to my investigation about the matter of ‘questionable beer’. At the Tribunal’s hearing, I did not think that the interpreter had interpreted my claims properly and accurately regarding this issue;”
In relation to the Tribunal’s invitation to comment on her failure to comment at the hearing on a significant matter raised in her statement in support of her application for a protection visa, namely that local police harassed her following her release from detention (CB 73.4), the applicant responded (at CB 77.3):
“8.It is true that following my release from detention, local police often went to my house for investigation threatening my freedom. However, at the Tribunal’s hearing, I did not well understand the Presiding Member’s question; or it might be for the reason that the interpreter failed to properly interpret the Presiding Member’s question; and as a result, I did not realize what the Presiding Member asked was whether the local police had gone to my house for investigation following my detention;”
I agree with submissions made on behalf of the first respondent that for the applicant to succeed in this ground, what is required is to establish, by probative evidence, that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence. I note in this regard what was said in Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188, Xiao v Minister for Immigration and Multicultural Affairs[2000] FCA 1472, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (“Appellant P119/2002”), Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507, Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1.
In the alternative, the applicant would need to establish, again, by probative evidence, that errors made by the interpreter at the Tribunal hearing were material to the adverse conclusions made by the Tribunal (in this regard see Appellant P119/2002 at [17], WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]).
As already referred to above, the applicant has had more than ample opportunity to file further material in support of her grounds before this Court. In particular, she has had the opportunity to relevantly file any transcript, or other evidence (for example, by a qualified Mandarin speaking interpreter as to what was said at the hearing and how this was interpreted, what the Tribunal said and how this was interpreted to her), in support of the mere assertion that the interpreter has made a “lot of mistakes”. I note in this regard the respondent’s reference in written submissions to Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18], that in the absence of a transcript no breach of s.425 of the Act should be inferred.
In any event, at best, the applicant in support of her claim that the interpreter has made a “lot of mistakes” makes reference to her written response, which I understood to be the response provided to the Tribunal. The errors said to have been made by the interpreter as set out in her response, even if accepted as having been made, do not in my view reveal an inadequate level of interpretation (with reference to relevant authorities above), or that in any event, they were material to the conclusions reached by the Tribunal.
I cannot see any real, or material, difference between the applicant’s claim to have referred to “the city government”, and the interpreter’s interpretation as “the municipal government”. Nor does a reference to “a special government office which only deals with those complaint letters sent by ordinary people”, be said to be inadequately interpreted by the interpreter as “the citizens telephone appeal bureau”.
Plainly, the Tribunal’s invitation to comment was directed to the inconsistency between the applicant having said in her written statement that she sent petitions to “different government agencies”, yet at the hearing the Tribunal understood the applicant to say that she sent the petitions “to the city government at first”, and then to the “citizens telephone appeal bureau only”. Whether this was a special government office which only deals with complaints sent by ordinary people, or whether it was interpreted as the “citizen’s telephone appeal bureau”, is not material to the issue raised by the Tribunal.
The Tribunal was seeking comment on the applicant’s claim, initially put in a written statement, to have sent her petitions to a number of “different government agencies”. Whether the interpreter translated the applicant’s relevant response at the hearing as a “special government office” or the “citizen’s telephone appeal bureau”, the issue was that there was still an inconsistency between what the applicant said initially, that is, sending her petition to a number of different government agencies, and sending it to one agency, which is what she said at the hearing. I cannot see that even if the interpreter made the mistakes as claimed by the applicant (noting of course that no evidence to support her mere assertion has been put before the Court), that these matters would have any material effect on the Tribunal’s adverse conclusions. Nor do they reveal an inadequate standard of interpretation.
The applicant’s assertion in her response to the Tribunal’s s.424A letter goes on to say that the petition was sent to a number of government agencies, but does not assert that she actually named these agencies or made reference to these other agencies during the course of the hearing. The applicant’s complaint appears to be that “she did not think that the interpreter at the Tribunal’s hearing was able to translate the name of those government agencies properly and accurately”. The applicant has not provided any evidence, by way of transcript or otherwise, to this Court to say that she actually made reference to these other agencies at the hearing.
Further, the applicant’s statement in her statutory declaration (at CB 76.9) is open to be understood that she did not make such a reference because she did not think the interpreter was able to translate the names of those agencies. If that is the case, then in the absence of any evidence as to the inadequate standard of interpretation generally provided by the interpreter, the applicant’s complaint cannot succeed.
In relation to the applicant’s complaint that the interpreter had not interpreted her claims in relation to what was mentioned, or not mentioned, during the course of her detention by the PSB, the applicant again has provided no evidence to support her claim that she “did not think that the interpreter had interpreted my claims properly and accurately regarding this issue”. Nor does she say what the errors were.
In relation to the police harassing her after her release from detention, the applicant states that she did not understand the Tribunal member’s question, or speculates that it might be for the reason that the interpreter failed to properly interpret the question. Again, no evidence has been put before the Court to support these mere assertions.
On what the applicant has put before the Court, this ground has no prospect of success if it were allowed to go through to a final hearing. The complaints about the interpreting at the Tribunal hearing, and as put to the Tribunal, on which the applicant again seeks to rely, reveal either matters of little or no consequence in relation to the Tribunal’s ultimate adverse conclusions, or are simply unsupported by any relevant or probative evidence.
Further, I note that in its analysis the Tribunal specifically addressed the applicant’s explanation for the inconsistencies in her evidence and her explanation, that the interpreter had not interpreted her “properly”. The Tribunal squarely addressed this issue in its analysis when it said (at CB 100.7):
“The Tribunal does not accept the explanation that her claims at the hearing were not interpreted properly. The applicant did not raise any concerns regarding the interpreter or interpreting issues at the hearing and confirmed at the outset that she had no difficulty understanding the interpreter. The interpreter assisting the applicant at the hearing is an accredited professional interpreter in the Mandarin language and the Tribunal had no reason to doubt his competency or his ability to interpret the applicant’s evidence accurately. Moreover, while in her statement the applicant had claimed that following her release from detention, local police often went to her house for ‘investigation’ and threatened her freedom, she did not raise his claim at the hearing. This raises doubts as to the veracity of this claim as it would be reasonable to expect the applicant to mention being harassed by the police at the hearing if in fact she had been subjected to this form of treatment. For reasons referred to above, the Tribunal does not accept the applicant’s explanation that the inconsistency was due to the interpreter’s failure to ‘properly interpret’ or that it was due to her own failure to understand the Tribunal’s questions.”
The applicant has put no evidence before the Court to show that the Tribunal’s findings in relation to the standard of interpretation provided at the hearing were not open to it to make, and has not provided any evidence to otherwise support her assertion as to the mistakes claimed to have been made by the interpreter. In all, this complaint does not succeed.
The applicant has been given more than ample opportunity to put evidence before the Court to support the assertion contained in this ground. On her own evidence before the Court, the applicant did seek some assistance from her migration agent in pressing her claims before the Court, but was unable to explain why the agent did not provide any further documentation to support the assertions made in her application for review.
Further, it was the applicant’s evidence that she is married to a person (and has been so married since 1 September 2007) who is “an Australian”, and who speaks English, and to whom the applicant, given their marital status, would reasonably be expected to be able to turn for assistance in pursuing her claim before this Court. The applicant gave no satisfactory explanation as to why her husband did not assist her in putting any evidence before the Court (not that she made any claim that she had any further evidence specific to this issue to put before the Court) beyond assisting her with the transmission of medical certificates to the Court. In all, therefore, I cannot see that any useful purpose would be served in allowing this ground to go through to a final hearing.
Ground Three – Legal Error
The applicant’s third ground asserts, without any particularity whatsoever, that the Tribunal did not exercise its power properly and therefore this gives rise to legal error. In the context of what the applicant submitted before the Court, that is, that the Tribunal failed to understand and find that she was a “genuine refugee”, and without any further particularity, this ground seeks impermissible merits review from this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
From the material before the Court, I cannot discern jurisdictional error in the Tribunal’s decision from what is asserted in the applicant’s application, nor that the applicant’s prospects of success in relation to these grounds would improve if the matter were permitted to go through to a final hearing.
Nor can I otherwise discern jurisdictional area in the Tribunal’s decision. The Tribunal considered the applicant’s claims, and indeed, each aspect of her claims, gave her the opportunity of attending a hearing to give evidence and to further explain her claims, and simply found, given the large number of inconsistencies in her evidence, and the unsatisfactory nature of her explanation for these inconsistencies, that the applicant was not a credible witness and could not be believed in her claim to be a refugee. This finding as to the applicant’s credibility was open to the Tribunal on what was before it, and for which it gave comprehensive reasons. In making a finding as to the applicant’s credibility the Tribunal was acting within the jurisdiction given to it as the finder of fact, which includes findings on an applicant’s credibility (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).
Further, I note from the Tribunal’s unchallenged account as to what occurred at the hearing that the Tribunal complied with its obligation to provide procedural fairness to the applicant pursuant to s.425 of the Act, as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. Any plain reading of the Tribunal’s account of what occurred at the hearing reveals that the Tribunal put to the applicant its concerns with various parts of her evidence, and the credibility and plausibility of her evidence and claims (see in particular CB 88.4, CB 89.2, CB 89.4, CB 89.9, CB 90.2, CB 90.5, CB 90.7, and CB 90.10).
Having given the factual account of what she said had occurred to her in China, the Tribunal did not believe the applicant to be a credible witness. It was this finding that ultimately determined the outcome or was dispositive of the review. Any plain reading of what occurred at the hearing reveals that the applicant would plainly have been on notice as to the Tribunal’s concerns in this regard.
Further the Tribunal wrote to the applicant after the hearing and it set out its concerns about her credibility given the various inconsistencies in her claims.
I note first that given what the High Court said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [17] and [18], the Tribunal was not obliged to seek the applicant’s comments pursuant to s.424A(1) of the Act given that what the Tribunal was seeking comment on was its appraisal of the applicant’s credit. As found by the High Court in SZBYR, that appraisal is not “information” for the purposes of s.424A(1). Even further, the information on which this appraisal was based was “information” or evidence either given by the applicant at the Tribunal hearing (in which case it falls within the exception contained in s.424A(3)(b)), or was “information” contained in the applicant’s statutory declaration provided with the applicant’s protection visa application which did not in its terms contain a rejection, denial, or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations (see in particular SZBYR at [17]).
Further, the Tribunal’s invitation to the applicant to comment does not reveal error in the Tribunal sending that invitation following the Tribunal hearing (SZGBT v Minister for Immigration and Citizenship [2007] FCA 565 at [25], Ex Parte Applicant M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 86 at [61]-[65]).
Conclusion
I do not accept that the applicant has provided a satisfactory explanation for her failure to attend at the final hearing in this matter for the reasons already set out above.
But I am ultimately moved to dismiss the application for reinstatement of her originating application on the basis that I cannot see that any useful purpose would be served in setting aside orders made dismissing that application, and allowing the applicant’s matter to proceed to another final hearing. On what is before the Court, I cannot discern jurisdictional error in the Tribunal’s decision either on the basis of what is alleged in the originating application, or otherwise. Nor has the applicant, despite ample opportunity put anything before the Court to show that any useful purpose would be served in the interests of justice in allowing the matter to proceed any further.
On this basis I will make an order dismissing the application made on 28 March 2008.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 26 June 2008
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