SZKJM v Minister for Immigration
[2008] FMCA 23
•25 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 23 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution as Christian – Tribunal did not accept he was a genuine practitioner – findings based on knowledge of Bible and Christianity – whether Tribunal addressed relevant issues – procedural fairness – errors in interpreting – no jurisdictional error found – application dismissed. |
Federal Court Rules (Cth), O.62
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c)
Migration Act 1958 (Cth), ss.420(2)(b), 422B(1), 422B(3), 424A(1), 424A(3)(b), 425
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZJQN v Minister for Immigration & Anor [2007] FMCA 1550
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
| Applicant: | SZKJM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG905 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 3 October 2007 |
| Date of Last Submission: | 23 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Seymour |
| Solicitors for the Applicant: | Mark A Cruice Solicitor |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed under Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation by a Registrar under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG905 of 2007
| SZKJM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant travelled from China to Australia on his own passport in 1996. On 24 October 1996 he lodged an application for a protection visa, which was supported by a very brief statement indicating a political opinion hostile to the Chinese Communist Party. The application was refused on 21 May 1997, and the applicant admits that he became aware of this later that year, after the time for appeal had expired. He stayed in Australia, working as a painter for nine years.
In 2006, the Department of Immigration sent the applicant a fresh notification of the decision, and this allowed him to lodge an application to the Refugee Review Tribunal on 21 November 2006. He was there assisted by his current solicitor, who lodged a statutory declaration of the applicant containing a different claim to qualify as a refugee, based on religious persecution.
The applicant claimed that he had been discharged from the army in 1984 after it was discovered that he was a Christian. He continued to attend a “family church”, and as a result was detained for three days in 1986, and lost his employment at a cement factory in 1990. In 1994 he was forced to close his food outlet business after a police raid on its basement, which was “a venue for a house church which was run by my sister”. He could not get permanent employment, and decided to leave China. He said that in Australia he had attended a Presbyterian Church in Ashfield which held services in Mandarin, and he presented a letter purporting to corroborate this.
On 7 February 2007, he attended a hearing of the Tribunal, accompanied by his solicitor and three friends as observers. The hearing lasted about 2½ hours. Subsequently, the applicant’s solicitor was sent material cited by the Tribunal concerning house churches in Fujian province, and he lodged a submission disputing that they were officially tolerated.
The Tribunal handed down its decision on 27 February 2007. In a brief statement of reasons, it did not accept “that the applicant is a genuine Christian practitioner as he had limited knowledge of Christian practice and the Bible”. It said: “the Tribunal is satisfied that the applicant’s overall knowledge about generally known facts relating to Christianity, is incommensurate with his claim he has been a practicing Christian for many years”. It gave examples of his deficiencies, including that he did not know what denomination he belonged to, he did not know the first book of the bible, he said Noah was “someone from heaven, a prophet”, he could not remember Jesus’ occupation before starting his ministry, and did not know why Christmas was significant. The Tribunal did not accept that the applicant “is a Christian now or previously”, and therefore rejected his claimed history of persecution. It was not satisfied that he had a well‑founded fear of persecution within the meaning of the Convention.
The applicant now seeks orders quashing the Tribunal’s decision, and remitting the matter for further consideration. I am able to make these orders only if I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant should be believed, nor whether he is qualified for a protection visa.
Six grounds of jurisdictional error were relied upon by the applicant’s counsel, which are set out in an amended application filed on 6 June 2007.
Ground 1A: the standard of interpreting
This ground contends that the standard of interpreting between the English and Mandarin languages at the Tribunal’s hearing was so inadequate that the applicant was not provided with a meaningful opportunity to give evidence, in particular demonstrating the genuineness of his religious practice in Australia and in China.
It is not disputed by the Minister that a deficiency in the interpreting service provided at the hearing could amount to jurisdictional error, by reason of a failure to afford a hearing required by s.425 of the Migration Act 1958 (Cth). I recently summarised the relevant principles in SZJQN v Minister for Immigration & Anor [2007] FMCA 1550:
19.It was common ground that authorities of the Federal Court binding upon this Court have established that a Tribunal’s decision is affected by jurisdictional error if, objectively determined by the Court, the applicant has been denied an opportunity required by s.425 of the Migration Act to be given to an applicant, “to give evidence and present arguments relating to the issues arising in relation to the decision under review” in the course of an attendance at a hearing. There can be a breach of this requirement, even where the Tribunal is unconscious of the reason for the applicant being deprived of that opportunity (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37], and SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 at [32], [48], [51]).
20.In particular, the Federal Court has held that mistranslations occurring at a hearing, of which the Tribunal is unaware, may give rise to jurisdictional error by reason of the failure to afford the opportunity required under s.425. A frequently cited discussion of the principles is that of Kenny J in Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6. At [39] her Honour said:
39.In the United States, courts of review have reasoned that, in order to establish that a person was prevented from giving relevant evidence or that an erroneous interpretation influenced the outcome of the proceeding, the hearing record must itself disclose the poor quality of the interpretation or specific error must be shown on appropriate evidence: see Hartooni v Immigration and Naturalization Service at 340; Acewicz v Immigration and Naturalization Service (9th Cir 1993) 984 F 2d 1056 at 1062 and in a criminal trial context, Mendiola v Texas (Tex App 1995) 94 SW2d 157 at 162. For present purposes, it is necessary to say only that I accept that it is open to the applicant to show by reference to the transcript of the Tribunal hearing that the interpretation was so incompetent that he was effectively prevented from giving his evidence. In evaluating the applicant’s case, however, one needs to bear in mind that some infelicitous expression in the transcript may be attributable to errors in transcription, not errors in interpretation.
21.Her Honour’s suggested test of whether “the interpretation was so incompetent that he was effectively prevented from giving his evidence” has been applied in several cases. For example, in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 Finkelstein J concluded that generally the standard of interpretation at a Tribunal hearing had been of poor quality, so that the applicant had not been able to have his evidence properly communicated to the Tribunal. His Honour also envisaged that the test suggested by Kenny J might be met by a failure of translation in relation to a critical piece of evidence given at the hearing. He said:
27.My general impression is that no one error or deficiency is so severe as to show that the interpreter or the interpretation was of such poor quality that the appellant was effectively deprived of his right to appear. But, when one steps back and looks at the hearing as a whole and asks whether the appellant received a fair hearing, I think the answer is that he did not. The combination of insufficient and incomplete translations, as well as the clear factual errors on the part of the interpreter, which the appellant was fortunately able to correct in some instances, suggests that the appellant had no real opportunity to express himself and fully answer questions put to him by the tribunal. This fails to achieve the tribunal’s objective of providing a fair and just hearing.
22.The most recent decision in which the Federal Court has applied the principles in Perera is found in a judgment of Gray J’s in M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212. At [51] his Honour assessed various errors of the interpreter, to consider their “significance, or at least of potential significance, to the outcome of the case”, and whether “the errors deprived the appellant of a fair opportunity to succeed”.
In the present case, the applicant presented in evidence an Auscript transcript of the English spoken at the hearing, and an affidavit of Ms Mi. She said she had been accredited for 5 years as a NAATI accredited translator and interpreter at Level 3 in Mandarin. She said that she had listened to the tapes, and gave the opinion that “the hearing is characterised by a large number of interpreting errors such that the reliability of the interpreting provided is poor”. Her attached report identified mistranslations at 36 points during the hearing, including 8 in the course of the Tribunal’s usual introductory speech before evidence was taken from the applicant.
The respondent relied upon an affidavit of Ms Xie, who had been accredited at the same level for 17 years. She said that she recognised regional accents, including the Fujian accent revealed by the applicant. She gave her opinions on Ms Mi’s 28 points concerning the taking of evidence from the applicant. She agreed with many of Ms Mi’s suggested better translations, but disagreed with others. She also pointed out places where the mistranslation was immediately corrected by the interpreter at the hearing, and where the interpreter faced the problem of interpreting references to “your statutory declaration”. She said: “there is no document known as a ‘statutory declaration’ in China”. Counsel for the Minister gave the Court a very helpful schedule, which identified Ms Mi’s 36 points, Ms Xie’s response, and his submission on their significance.
Neither counsel had listened to the tapes of the Tribunal’s hearing. However, they were tendered in evidence, and I felt obliged to listen to them, notwithstanding my normal practice to rely only upon a verified transcript. In this case, my listening to the tapes has assisted me to form an impression of the hearing, of the interpreter, of the interactions of the Tribunal and the applicant with the interpreter, and of the general fairness of the hearing.
No evidence was called from the interpreter at the hearing before the Tribunal, who is recorded also as having accreditation at NAATI Level 3. Nor was any evidence led to elucidate how the Tribunal member recorded the evidence taken at the hearing. She sets out a complete narrative of the hearing in her statement of reasons, although re‑arranging the sequence of some of the applicant’s evidence. From the tapes, it appears to me likely that the member took contemporaneous notes, and it is unclear whether she also listened to the tapes. I doubt that she had access to the Auscript transcript or any other transcript. However, she had the clear advantage of being present and conducting the hearing, and significant weight should be given to her own record. Indeed, I have detected a number of places where the Tribunal took a more accurate note of the translated evidence of the applicant than is found in the Auscript transcript. This is understandable, not only because of the usual difficulties in producing such a transcript, but also in the present case because the interpreter spoke softly and at times in the presence of background noise.
At the start of the hearing, I was informed that counsel had agreed that Ms Mi and Ms Xie would not be called for cross‑examination, and that the Court could assume that they would adhere to their opinions. This undoubtedly spared the Court from protracted oral evidence. However, I am left with little basis upon which to resolve the differences of their opinions. In terms of qualifications, Ms Xie appears more experienced. I am also inclined to prefer her opinions where there is a conflict with Ms Mi, since she identified errors in the Auscript English transcript which I found by listening to the tapes, whereas Ms Mi appears to have assumed the correctness of the Auscript transcript.
On my own assessment of the quality of the interpretation at the hearing, I consider that it is too harsh to characterise the interpreting at the hearing overall as having “poor” reliability. 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. A good interpreter will be conscious of his or her own imperfect translations, or of difficulties in communication which are occurring, and will attempt to rectify them in the course of the hearing. This happened in the present case, where at several points the interpreter departed from literal interpretations. Some of these departures also resulted from an understandable attempt by the interpreter to make clearer, awkwardly expressed questions by the Tribunal or answers by the applicant. A realistic appreciation of the role of interpreter at a hearing must allow latitude in relation to such matters.
Moreover, the person conducting a Tribunal hearing with the assistance of an interpreter will inevitably detect points in the proceedings where it appears possible that imperfect communication is occurring, whether by reason of mistranslation or cultural or personal barriers. The present member was plainly alive to this concern at several points, and either repeated her questioning or decided to disregard apparently unreliable responses, for example, by the applicant as to Jesus’ birthplace (see transcript p.20-21, and 29).
Counsel for the applicant did not identify any one point of mistranslation as causing a significant failure of communication at the hearing, so as materially to affect the course of the hearing or the Tribunal’s ultimate assessment of the applicant’s evidence. He did not identify mistranslation affecting those of the applicant’s responses which were specifically relied upon by the Tribunal for its opinion that the applicant did not disclose a level of knowledge of the Bible and Christianity commensurate with his claimed religious background. I am not persuaded that any imperfections of the interpretation had the result that he was “deprived of the opportunity” better to demonstrate knowledge which might have led the Tribunal to a different conclusion.
Generally, I accept the submissions of counsel for the Minister that the points of correction of the translation which are shown in the evidence of Ms Mi and Ms Xie concern matters of no real significance to the conduct of the hearing, or to the Tribunal’s decision of the matter. I am not persuaded that the standard of interpretation can be characterised, in terms of the above authorities, as “so incompetent that he was effectively prevented from giving his evidence”, nor that the applicant was “deprived of a fair opportunity to succeed”.
When arriving at the above conclusions, I have considered each of the points raised by Ms Mi, and the following table contains my brief comments and conclusions on each of them. It needs to be considered with reference to the schedule of counsel for the Minister, which I shall not reproduce in this judgment.
| Error | Comments and conclusion |
| 1‑8 | The departures from literal translation of the Tribunal’s introductory speech were insignificant, particularly in circumstances where the applicant was assisted by a solicitor who was also in attendance. |
| 9 | Insignificant error. The Tribunal was aware of a problem, since its next question clarified its interest. |
| 10, 11 | Insignificant. The Tribunal clarified an obvious problem, in its next question. |
| 12‑15 | Immaterial. The Tribunal’s questions were poorly framed, and difficult to convey in translation. It did not rely upon the responses which indicated possible poor communications. In fact, the applicant appears to have understood the gist of the opening question at transcript p.11.5. It must be recalled that he had lived in Australia for 9 years, and there is at least one clear indication in the tapes that he understood some English. He corrected the interpreter at transcript p.13.3 referring to $350, but Auscript have ‘cleaned up’ this exchange. |
| 16 | Insignificant. I accept that the interpreter was faced with the problem of conveying the meaning of an untranslatable reference to “your statutory declaration”. In fact, the applicant answered the real question: “who was your agent?” |
| 17 | Insignificant. The difficulties of translation were patent, and were sufficiently met with the ultimate answer “Chinatown”. The evidence was not relied upon by the Tribunal. |
| 18 | Insignificant. |
| 19 | I accept that this translation was imperfect. However, it sufficiently showed that the applicant had knowledge of this aspect of Christian doctrine, and the Tribunal did not find inadequacy in his response. |
| 20 | The Auscript transcript is incomplete. On the tape, the applicant was interpreted as saying: “after we pray we discuss the bible”. The Tribunal appears to have understood this correctly (see CB p.89.9). No significant error is established. |
| 21 | I consider it more likely that the interpreter correctly translated “book”. |
| 22 | The interpreter’s translation of “chapter” in fact clarified the question, rather than distorted it, and the applicant plainly revealed gaps in his knowledge. The Auscript transcript ‘cleans up’ the tape, and does not reveal long pauses. |
| 23, 24(a) | No significant problem occurred. The applicant himself was aware that he had misunderstood a question, and corrected himself. The interpreter assisted him. |
| 24(b) | I accept that this translation was imperfect. However, the Tribunal did not find inadequacy in the translated response. |
| 25 | There was obvious difficulty translating phonetically, and the Tribunal expressly did not rely on the response (see transcript p.29) |
| 26 | No significant error. |
| 27 | No significant error, read in context. |
| 28 | No significant error. |
| 29 | Auscript error. On the tape, the interpreter in fact said: “when I was leaving”, and the Tribunal correctly recorded the applicant’s evidence (see CB p.90.7) |
| 30 | No error. |
| 31 | Auscript error. On the tape, the interpreter referred only to the “brother” and not “my father”, and the Tribunal correctly recorded his evidence (see CB p.91.1). |
| 32 | The interpreter immediately corrected her mistranslation. On the tape, the applicant broke down when referring to his mother’s death, and I have no doubt that the Tribunal did not treat his responses adversely. |
| 33, 34 | No significant problem arose from the difficulty in translating “statutory declaration”. The Tribunal appears aware of some problem, since she changed her questions so as to refer to “a statement”. |
| 35 | No significant error. |
| 36 | No significant mistranslation occurred. |
Ground 1B – failure to warn
This ground contends that the Tribunal failed to warn the applicant that it had doubts about the genuineness of a letter which he presented at the hearing. The letter was unaccompanied by any verification, and was not on any letterhead nor had any other overt authenticity. It purported to be signed by an elder of the Ashfield Presbyterian Church, and stated “after he came to Australia, he came to attend the worship service in our Chinese congregation. … I believe he is a born‑again Christian. …”. There was no discussion about the letter at the hearing, and there was no correspondence concerning its contents after the hearing. However, in its reasons, the Tribunal explained a conclusion that it was “not satisfied that the applicant engaged in the conduct of attending the Ashfield Presbyterian Church other than for the sole purpose of strengthening his refugee claim”. It said about the letter:
It doubts the genuineness of the letter from the Ashfield Presbyterian Church as it is not on letterhead. Even if the applicant had been attending the Ashfield Presbyterian Church and the letter is genuine, as on the other evidence before it the Tribunal cannot find him credible and has found any attendance was not as a genuine practitioner, it gives the letter no weight. [punctuation corrected]
I do not accept that this reasoning reveals jurisdictional error by reason of a failure at the hearing or otherwise to warn the applicant that the Tribunal might have doubts about this letter and give it no weight. In my opinion, the situation does not fall within the principle applied by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. As Bennett J said in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [21]: “As the issue was raised for the first time before the Tribunal, the appellant should have been in no doubt that it was an issue arising in relation to the Tribunal’s consideration and in relation to the decision under review”.
The weight which the Tribunal would give this piece of evidence, which was tendered by an applicant who was assisted by a solicitor, was not a matter it was obliged to discuss with the applicant. It was open to the Tribunal to give it no weight in the light of its adverse opinion of his credibility, and the patent absence of verification of the authenticity and truth of the contents of the letter (cf. WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70]). I cannot find any failure by the Tribunal, whether under s.425 or any other obligation on it, arising from its reasoning concerning the letter.
Ground 2 – breach of s.424A(1)
This ground contends that the Tribunal failed to raise its doubts about the letter with the applicant by way of a written invitation for written comments under s.424A(1). However, that provision does not raise any obligations in relation to the Tribunal’s thought processes concerning evidence given by the applicant to the Tribunal (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17], and s.424A(3)(b)).
Ground 3 – failure to address the correct question
This ground contends that the Tribunal addressed an irrelevant issue, and failed to address the correct issue raised for it on a review of the delegate’s decision on refugee status. It argues that the Tribunal failed to consider whether the applicant had a subjective fear of persecution were he to return to China, but was distracted by considering whether he was a “genuine practitioner” of Christianity.
However, I do not accept that the Tribunal’s reasoning reveals any misconception of its review function, nor of the issues which it was required to address. The truth of the applicant’s claimed history in China, and of his claimed religious adherence, was very relevant to the Tribunal’s consideration of his future risk of persecution in China (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575‑576). It was open to the Tribunal to assess the history by examining whether the applicant had a knowledge of the Bible and Christianity commensurate with his claimed long history of bible study and church attendances. Having formed an adverse opinion on his credibility, it was then open to it to find that he was not “a Christian practitioner”, to reject his claimed history, and for that reason not to be satisfied that he had a well‑founded fear of persecution within the meaning of the Convention. These findings of the Tribunal effectively addressed whether the applicant had a subjective fear of persecution for the reasons claimed, with an implicit finding in the negative.
Ground 4 – failure of procedural fairness
This ground contends that there was a failure of procedural fairness because the Tribunal “did not put the applicant on notice that the truthfulness of the entirety of his claims or the entirety of his credit was in issue”, nor that this might be determined by reference to “the extent of his knowledge of the Christian faith”. It is also contended that the Tribunal unfairly relied upon a misstatement of the applicant’s evidence concerning his knowledge of Christmas.
The ground’s reliance on s.420(2)(b) is misconceived: see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [36], citing Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], [108]‑[109], [158], [179]. The Tribunal’s present proceeding was not covered by the new provision in s.422B(3), so its effect on the s.422B(1) exclusion of the natural justice hearing rule need not be considered.
Moreover, I do not accept that any failure of procedural fairness occurred as is argued, upon any view of the Tribunal’s obligations in that respect. The applicant first presented his claimed history and fears of persecution as a Christian to the Tribunal in 2007, without previously having raised them in his visa application or with the Department of Immigration. He was represented by a solicitor, and it must have been apparent to them that the Tribunal would be assessing the credibility of his whole history, including his claimed commitment to Christianity. It must have been obvious that it might test this by asking him questions directed at assessing his knowledge of his claimed religion. There was nothing unfair in it doing this. The weight and significance which the Tribunal ultimately gave to his responses was a matter for it, not for the Court.
I do not accept that any unfairness arose in relation to the Tribunal’s finding that the applicant “did not know why Christmas was significant in the Christian faith”. It is correct that the transcript and tapes indicate that the Tribunal initially thought that he had referred only to Easter when asked “what are the major Christian festivals” (see p.20), whereas the applicant did also mention “Christmas”. However, the applicant corrected this misapprehension at the end of the hearing (see p.28), and this led the Tribunal to ask the further question: “what is the significance of Christmas?” The tapes reveal a long pause (about 13 seconds), in which the applicant revealed clearly to the Tribunal that he had forgotten. There was no unfairness in this questioning, nor in the Tribunal’s ultimate reliance upon this gap in his knowledge.
Ground 5 – finding unsupported by evidence
This ground contends that the Tribunal’s finding that the applicant did not know the significance of Christmas was not based on any evidence. However, as I have indicated, the tapes of the hearing clearly show that the Tribunal had evidence of this.
Ground 6 – apprehension of bias
The amended application gives no particulars of this allegation, but counsel’s written submissions contend that a fair minded observer might apprehend that the Tribunal had closed its mind to the possibility that the applicant was a “genuine practicing Christian” because of its reasoning process, its questioning of the applicant about the significance of Christmas, and its cutting across a submission of the applicant’s solicitor.
However, the Tribunal’s testing of the applicant’s credibility by reference to his knowledge of his claimed religion was a permissible approach (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [65]), and I can find nothing in its questioning to show that it failed properly to assess all his responses. It is natural that in its reasons it would identify the defects which it found confidently, without entering into a discussion of other answers which he gave which revealed some knowledge of Christianity. This is not a case, in my opinion, which reveals the features found in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264.
I have above indicated that the tapes of the hearing show that the applicant was given a fair opportunity to show his knowledge of the significance of Christianity. I do not consider that an informed observer might have apprehended that the Tribunal would not have taken into account, with an open mind, any response of the applicant which revealed some knowledge of this, nor that the question was put in a manner which was intimidatory or discouraging. Having listened to the whole tape, I consider that an observer would not have developed an apprehension that the hearing was being conducted by a Tribunal which did not bring an open mind to reviewing the delegate’s decision.
The Auscript transcript of the exchange between the Tribunal and the applicant’s solicitor on p.29 is imperfect. There was some obscurity on the tapes as to what happened, but it seemed to me that the solicitor was not cut off from completing his submission. He did not object at the time, and has not given evidence to the Court that he was cut off.
I am not persuaded that the Tribunal did not fairly understand and record his full submission at CB p.91. I can find no evidence giving rise to an apprehension of bias at this point in the hearing.
For the above reasons, I am not satisfied that any of the grounds which were argued are established. The application must therefore be dismissed.
I certify that the preceding thirty‑five (35) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 January 2008
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