SZLJC v Minister for Immigration
[2008] FMCA 797
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 797 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLJC”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A, 425, 427 |
| Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SZKOB v Minister for Immigration & Citizenship [2007] FCA 1949 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 |
| Applicant: | SZLJC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2948 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 25 September 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2948 of 2007
| SZLJC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant claims she is from Gaoshan, Fuqing, Fujian Province in the People’s Republic of China and was born in 1983. She claims she completed eleven years of education and graduated from Fuzhou Industry School in July 2001 majoring in Accounting. She was employed by Taikang Life Insurance Company (“Taikang”) as an accountant from January 2002.
She claims that in September 2004, six or seven labourers (including a Mr Lin) were seriously injured on a construction site. The construction company had forced these workers to purchase workers’ compensation insurance through Taikang. However the injured workers were denied compensation. Some of Taikang’s staff were aware of the corruption of the construction company and warned not to reveal anything about the circumstances. However, Mr Lin’s girlfriend, a Ms Shi, was the applicant’s friend from Fuzhou Industrial School and the applicant felt compelled to tell her what had occurred. Mr Lin and his colleagues were accused of violating occupational health and safety regulations resulting in a denial of compensation.
After receiving the information Mr Lin immediately organised for the labourers and their families to protest in front of Taikang but this was suppressed by the Public Security Bureau (PSB) who were also being bribed by Taikang. Mr Lin and six or seven other protestors were arrested and detained for one month. Taikang conducted an internal investigation to find out who had leaked the information and the applicant became one of its main suspects. This was discovered because the of applicant’s friendship with Ms Shi. She was transferred to another department where she had no direct contact with external customers.
Mr Lin and Ms Shi revealed to the applicant that they were both devout Christians and key members of an underground church. The applicant was deeply moved and wanted to understand more about their religious activities. She attended secret religious gatherings at Mr Lin’s home together with other Christians. In November 2005 the applicant was baptised.
The applicant alleges that in September 2006 Mr Lin and other members of the underground church were arrested by the PSB. While some members were released a week later, Mr Lin was detained and charged with illegal and anti-government activities. The applicant claims that in order to save him, her and Ms Shi drafted an anonymous petition and organised to send it to different government agencies and elsewhere in the province. The petition demanded Mr Lin’s immediate release, that he be provided with any necessary medical treatment, respect for his religious freedom and the protection of his basic human rights.
In January 2007 some of the applicant’s friends were detained by the PSB when caught distributing copies of the petition. This prompted the applicant to leave China.
The applicant arrived in Australia on 7 February 2007 and applied to the Department of Immigration for a Protection (Class XA) visa on 9 February 2007. A delegate of the Minister refused to grant the visa on 16 April 2007 and the applicant applied to the Refugee Review Tribuanl (“the Tribunal”) on 17 May 2007 for review of the delegate’s decision. It is the Tribunal decision of Shahyar Roushan (reference number 071426347) and signed 16 August 2007 which is the decision the subject of this judicial review.
A Court Book (“CB”) was prepared by the first respondent and is marked Exhibit “A”. It is the only evidence before the Court.
At the first Court date, the applicant indicated that she did not wish to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was granted leave to file an amended application giving complete particulars of each ground of review. However, this order was not complied with. The applicant did submit written submissions on the day of the hearing which do not directly relate to the grounds of review in her initial application to the Court.
Tribunal’s Findings and Reasons
The applicant appeared at a hearing before the Tribunal on 11 July 2007. The Tribunal subsequently wrote to the applicant on 12 July 2007 pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”) (CB 73-75). The letter identified nine inconsistencies between what the applicant said in her protection visa application, in her interview with the delegate and at the Tribunal hearing. The Tribunal stated that the inconsistencies may form the basis of an adverse credibility finding and that the photograph of the applicant standing in front of a Chinese police station was staged to strengthen her claims. On 25 July 2007, the applicant provided a statutory declaration in response to the s.424A letter.
The Tribunal characterised the applicant’s claim for protection as being based on religion and imputed political opinion but it was not convinced as to her reliability, credibility or truthfulness as a witness. The Tribunal identified nine issues in coming to this finding:
a)Inconsistencies with the applicant’s address in China (CB 101.8-102.1);
b)Inconsistencies about staffing arrangements at Taikang and when she stopped working for the organisation (CB 102.6-102.9);
c)Differing accounts of the applicant’s baptism (CB 102.10-103.4);
d)Changes in the applicant’s evidence regarding the number of people arrested at the protest (CB 103.4-103.5);
e)Failure to mention her parents’ Christian beliefs and their opposition to her activities (CB103.6-103.9);
f)Inconsistencies concerning the drafting publication and the distribution of the pamphlets;
g)Implausible aspects of her oral evidence concerning her priest’s escape from arrest, the reasons behind her arrest, detention and how the Shanghai police were able to arrest Ms Shi so quickly;
h)Her propensity to fabricate claims and tailor and shift her evidence to achieve her own purpose (CB 104.10-105.1); and
i)The photographs and documents the applicant submitted carried no weight (CB 105.1-105.4).
Although the applicant demonstrated some knowledge of Christianity and had attended church in Australia, the Tribunal considered that these were designed to assist her protection claim. The Tribunal disregarded this conduct in accordance with s.91R of the Act. It did not accept that she was of interest to the Chinese authorities either because of her religion or her imputed political opinion. It also did not accept that the applicant had faced harm in the past nor that there was a real chance she would face harm for a Convention reason in the future.
Grounds of review
o There was an error of law in the Tribunal’s decision constituting jurisdictional error;
o There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
1. The Tribunal, incorrectly, assessed my credibility.
2. Firstly, it might be improper to put the address where my household register (“hukuo” in Chinese) instead of my temporary address into the application form; but considering it as one of the reason to question my credibility would be definitely unfair. I am from the country which is much different from Australia; and I must have different understandings of some questions owing to my different cultural background. Also, one of purposes for the Tribunal’s hearing, I think, is to give me a chance to clarify or to comment some issues arising from the review. I can not accept that the Tribunal, on one hand, provided me chances such as arranging a hearing or sending me a s.424A letter; but on the other hand, the Tribunal completely ignored or discharge my further explanation or further evidences or further claims simply with an excuse that it has not been “convinced”.
3. Secondly, the Tribunal considered evidences or information obtained from my interview with the delegate held on 28 March 2007 as the reason or part of the reason for making its finding. But, on the hand, the Tribunal failed to provide me evidences such as recording tape or transcript in relation to the interview; and on the other hand, the Tribunal refused to consider my explanation that: “…I have not been provided a recording tape or transcript in relation to my interview with the delegate held on 28 March 2007. So, I was really unable to remember what had actually happened at the interview. I might not clearly explain my job or structure of my company; or I might not clearly understand the delegate’s question or my explanations to the question…” However, it was definitely the fact that at the Departmental interview with the delegate, I only had a chance to describe my stopping work for the first time; but I did not have any chance to explain my stopping work for the second time.
4. It is the evidence that at the Departmental interview, I might not clearly understand the delegate’s question regarding compensation for Mr Lin’s leg. Actually, there were two major parts; one was medical compensation, which was about RMB 100,000k yuan; and the other one was disability pension, which was about RMB 100,000 yaun. So, total compensation should be RMB 200,000yuan.
5. It is the evidence that at the Departmental interview, I might have some confusion while I was asked about being baptised by Priest Mr Chen. Actually, during the period from the time when I first attended religious gathering in June 2005 to the time when I was baptised in November 2005, I had met Priest Mr Chen for about 3 times. At the first time when I met Priest Chen attended our secret gathering, he sprayed me with water and prayed for me, but at that time, I really did not understand why he did so and I really could not hear clearly what he actually said when he did it for me.
6. It is the evidence that I have said in my statement submitted in support of my application for protection visa was “Mr Lin and other 6-7 protesters were arrested; and they were detained for one month”. What I have said at the Departmental interview should be that 20 people, including their protesters and their families, were arrested in October 2004.
7. It is the evidence that at the Departmental interview, I did say that my house was searched at the time of my arrest and that the police found a Bible. But, I never said “it was my Bible”. Actually, the Bible was belonged to my parents who had brought it home from an officially registered church.
8. Thirdly, my evidence given at the hearing before the Tribunal has been distorted or misstated. It is my evidence that at the Tribunal’s hearing I never said “Mr Lin was not in hospital for one month”. What I said was “Mr Lin was in hospital for one month; but around 20 September 2004, having approved by his doctor, Mr Lin came to my company”.
9. It is the evidence that either at the Departmental interview or at the Tribunal’s hearing, I might not clearly explain how the petition and its copies had been done. As a matter of fact the petition was jointly drafted by Ms Shi and me. Ms Shi drafted it at her own computer at her home first; and then it was amended at my computer at my home. We made about 500 copies of the petition, but only distributed or sent about 300 to 400 copies while Ms Mei Lan Liu was arrested. These copies were sent to different governmental agencies in the Fujian area, but distributed to the people only in the Fuqing area.
10. Fourthly, the Tribunal made its finding mostly based on its assumption. As a matter of fact, it was definitely impossible that the photograph submitted to me was to be “designed to strengthen my claims against my protection visa application.” It was extremely dangerous to take such a photo in front of the police station without any permission, I would be arrested immediately should I have been found to do so. So, it is definitely impossible for me to take such a great risk to take the photo simply for my refugee application. As a matter of fact, I took this photo solely for the purpose to have an evidence to sue those cruel and inhuman police in the future.
11. Finally, the Tribunal failed to comply, honestly and genuinely, with its obligation under s.424A(1) of the Act. As I have mentioned above, the Tribunal made its finding mostly relied on the information or evidences obtained from the Departmental interview, but the Tribunal failed to provide me a recording tape or transcript which have included all particulars of the information that has been considered as the reason or part of the reason by the Tribunal. On the other hand, the Tribunal provided me some pieces of information in its s.424A letter, but it has failed to bring an independent mine or make a genuine attempt to consider my explanations or comments fairly and properly.
12. In summary, I have never ever agreed that my application has been assessed by the Tribunal fairly and carefully.
Consideration
The applicant’s written submissions handed up at the commencement of the hearing raise a new set of issues not previously identified in the original application. Similarly, when invited to make oral submissions the applicant ventured into new territory not previously mentioned in the original grounds or contained in the written submissions. I believe the most appropriate course is to note the issues raised in the applicant’s oral submissions and the responses provided by Mr Bevan for the first respondent. Reference will be made to the issues I referred to in the submissions and in the original grounds.
The first issue raised by the applicant in oral submissions related to the evidence given regarding her address. The Tribunal’s “Findings and Reasons” state:
First, in her application for a Protection visa in response to a question asking her the details of “all addresses OUTSIDE AUSTRALIA where she had lived for twelve months or more in the last ten years, she stated that from January 1997 to February 2007 she lived at No.11 Antai Road, Goshan Town, Fuqing City, Fujian Province. At the hearing before the Tribunal, however, she stated that her parents lived at No.11 Antai Road, Goshan Town from birth until 1998 when she moved to a rented house on Xia Qiao Rd, Fuqing City. She continued to live there until her departure from China. This inconsistency was put to her at the hearing as well as in the Tribunal’s post hearing letter. At the hearing she contended that the Goshan Town address was her main address. She essentially repeated this in her response to the Tribunal’s s.424A letter by stating that Goshan Town address was her Hukou or official residential address whereas the Xiaqiao address was a temporary address. The Tribunal is not persuaded by this explanation. As indicated above, the relevant question in the Protection visa expressly asked the addresses where the applicant had lived. In preparing her form the applicant was assisted by a registered and experienced migration agent who, in the Tribunal’s experience, had represented many protection visa applicants. It is unclear as to why the applicant has decided to enter her Hukou address in her Protection visa instead of her residential address. (CB 101.8-102.1)
This was raised with the applicant in the Tribunal’s s.424A letter of 12 July 2007:
1. In your application for a Protection visa in response to a question asking you the details of “All addresses OUTSIDE AUSTRALIA where you have lived in twelve months or more in the last ten years, you stated that from January 1997 until February 2007 you lived at No11 Antaii Road, Goshan Town, Fuqing City, Fujian Province. At the hearing before the Tribunal however, you stated that your parents lived at No11 Antaii Road, Goshan Town since before you were born and that in 1998 you moved to a rented house in Xiaqiao Rd, Fuqing City and continued to live there until your departure from China. (CB 98.4)
On 25 July 2007, the applicant’s migration agent, Priscilla International Co Pty Ltd, forwarded a statutory declaration completed by the applicant on the same date:
1. No.11 Antai Rd, Goshan Town, Fuqing City, Fujian Province “is the address where my household registration (“Hukou” in Chinese) has been held: and it is my permanent address in China. In China, people normally regard the address of their household registration as official residential address. Therefore, people normally put the address of his or her household registration while he or she is required to fill it in official forms. “Xia Qiao Rd, Fuquing City” was just a temporary address, where I rented a unit temporarily for convenience of my work in Taikang Company”. (CB 99.5)
The applicant’s oral submissions before the Court essentially repeated what had appeared in the statutory declaration referred to above explaining the difference between the address registered and where she actually lived. While that may be acceptable to a point, that was not the Tribunal’s approach in dealing with this aspect of the evidence. This inconsistency was put to the applicant at the hearing but the Tribunal was not persuaded by her explanation. The issue of why the applicant had recorded a different address is not relevant as the Tribunal was simply not persuaded by her explanation. This issue ultimately went to the applicant’s credibility which I will consider below.
The applicant raised this in particular two of the original grounds but it does not appear in her written submissions.
The second issue raised by the applicant in oral submissions was whether or not the Tribunal should have provided her with a copy of the transcript or tape of the interview by the Department. Mr Bevan contends that there is no obligation on the Tribunal to provide these to the applicant. An obligation that does fall on the Tribunal is found in s.424A of the Act, which is that the Tribunal must provide particulars of information that may be the reason or part of the reason for its decision. Mr Bevan relies on Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352 at [366] per Hill J. That case involved a letter provided to the Tribunal describing the applicant’s actions at a certain gymnasium. Particulars of that information were then provided to the applicant under s.424A, but a copy of the letter was not. His Honour held that the obligation on the Tribunal in those circumstances did not extend to providing the document itself, but only to providing relevant particulars of the information.
In the matter before this Court, information was given to the Department when it interviewed the applicant and subsequently the Tribunal detailed that information in the s.424A letter to the applicant. Clearly, s.424A was enlivened. However, the Tribunal was not required to provide to the applicant with a copy of the interview hearing tapes or transcript in order to comply with s.424A.
More recently in SZKOB v Minister for Immigration & Citizenship [2007] FCA 1949, an applicant alleged an error on the part of the Tribunal by it not providing a transcript of the visa application interview conducted by the Department. Justice Flick said at [13] to [14] of that decision:
[13] The content of the requirements of procedural fairness is to be determined by reference to the context in which a particular dispute arises including, in particular, the legislative regime being administered. In the present circumstances, s 422B of the Migration Act 1958 (Cth) provides that Div 4 of Pt 7 “is taken too be an exhaustive statement of the requirements of the natural justice hearing rule”. Neither that Part nor any other provision of the 1958 Act requires a claimant to be provided with a transcript or a tape recording of an interview with the Department.
[14] Even in the absence of s 422B, it is not considered that the common law rules of procedural fairness require the provision of a transcript or a tape recording of the interview on 10 October 2006. Notwithstanding expected difficulties which may arise with respect to a person whose English language proficiency is severely limited, the factual matters being considered are within a narrow compass and are matters within the knowledge of the Appellant. Although there may be potential for misunderstandings between those participating in the interview process, the necessity to retain a tape recording of such interviews or to provide a transcript seems to be an unwarranted formality not required by the common law.
Mr Bevan submits that the applicant’s complaint in the original application and oral and written submissions was that there was a mistranslation of the answers she gave to the Department in the interview. Mr Bevan addressed particular examples raised by the applicant in support of her argument.
The first issue concerns the hospitalisation of Mr Lin which was raised in the s.424A letter:
At the interview you stated that Mr Lin came to see you in Taikang in mid September 2004. At the hearing, however, you said that Mr Lin was in hospital for one month and that he came to see you in late September 2004. When this inconsistency was put to you at the hearing, you said Mr Lin was not in hospital for one month and that he came to see you around 20 (or 20 something) September 2004. (CB 98)
The applicant’s response states:
Mr Lin came to see me in Taikang was around 20 September 2004; and I really did not know how to describe it according to western culture. In Chinese, we normally described it as “late mid of the month” (zhong—xia xun “t-F 1”). But, at the Tribunal’s hearing, I never said “Mr Lin was not in hospital for one month but around 20 September 2004, having approved by his doctor, Mr Lin came to my company”.
Mr Bevan submits that he was unable to discern any use of that inconsistency by the Tribunal in its “Findings and Reasons”. After re-reading that part of the decision, I agree with Mr Bevan that there is no reference to that inconsistency in the reasons.
The second issue relates to the pamphlets and how they were produced and distributed. This was raised with the applicant during the course of the Tribunal hearing and again in the s.424A letter:
At the interview you stated that you typed the material in the pamphlets or petitions demanding Mr Lin’s release on your computer at home and that you distributed 500 copies. In your statement you had also stated that you distributed this material in different areas of Fujian Province. At the hearing, however, you said that Ms Shi wrote the pamphlets and printed them on her own computer at home. You further stated that 300 to 400 copies were distributed and only within the boundaries of Fuqing city.
The above information is relevant because the Tribunal may draw an adverse credibility finding on the basis of inconsistencies between the information you provided to the Department and the information you have provided to the Tribunal. This information is also relevant because it may cause the Tribunal to find that you have not been truthful or credible and the Tribunal may not believe your claims to be true. (CB 99)
The applicant’s response states at [9]:
Either at the Departmental interview or at the Tribunal’s hearing, I might not clearly explain how the petition and its copies has been done. As a matter of fact, the petition was jointly drafted by Ms Shi and Me Ms Shi drafted it at her own computer at her home first; and then it was amended at my computer at my home. We made about 500 copies of the petition, but only distributed or sent about 300 to 400 copies while Ms Mei Lan Liu was arrested. Those copies were sent to different government agencies in Fujian area, but distributed to people only in the Fuqing area. (CB 100)
The Tribunal addressed this in its “Findings and Reasons”:
Sixth, at her interview with the delegate the applicant stated that she typed the material in the pamphlets or petitions she distributed on her computer at home and that she distributed 500 copies. In her written statement to the Department she had also stated that she distributed this material in different areas in Fujian Province. At the hearing, however, she said that Ms Shi wrote the pamphlets and printed them on her own computer at home. She further stated that 300 to 400 copies were distributed and only within the boundaries of Fuqing City. These inconsistencies were put to the applicant for her comments after the hearing. She responded by providing a third account in which “the petition” was jointly drafted. She stated that Ms Shi drafted the petition at her own computer at her home first and then it was amended at the applicant’s computer at her home. The applicant explained that she was unable to provide a clear explanation at the interview or at the hearing. However, she provided no explanation as to why she had been unable to do so, despite the ample opportunity she was given to explain herself at the hearing. The Tribunal considers the applicant’s latest account of who was responsible for drafting and printing the pamphlets an ex post facto attempt at remedying the pitfalls in her evidence. (CB 103-104)
Clearly the issue of the authorship, production and distribution of the pamphlets is an issue that falls under the Tribunal’s reasoning process and its assessment of the applicant’s evidence at the hearing and in response to the s.424A letter. The Tribunal has complied with the requirement of the Act in dealing with this issue and no jurisdictional error is evident in the process it adopted.
The next issue concerns photographs submitted by the applicant, in particular, one which shows her standing in front of a police station in China. This was referred to in the s.424A letter at:
At the hearing you submitted a photograph depicting you standing in front of a police station’s gates in China. This information is relevant because it may lead the Tribunal to find that the photograph submitted by you was staged and designed to strengthen your claims against your protection visa application.
The applicant said in her response:
It was definitely impossible that the photograph submitted by me was to be “designed to strengthen my claims against my protection visa application”. It was extremely dangerous to take such a photo in front of the police station, because it has strictly restricted and banned to take any photo in front of the police station without any permission. I would be arrested immediately should I have been found to do so. So, it is definitely impossible for me to take such a great risk to take the photo simply for my refugee application. As a matter of fact, I took this photo solely for the purpose to have an evidence to sue those cruel and inhuman police in the future. (CB 100-101)
The Tribunal then made the following observation about the photograph:
The second photograph shows her to be standing in front of what is purported to be a police station’s gates in China. As it was put to the applicant in its post hearing letter, the photograph appears to be staged and designed to strengthen her claims against your protection visa application. The Tribunal finds her claim that she took the photograph in order to sue the Chinese authorities unpersuasive. The Tribunal, therefore, does not attach any weight to the photographs. (CB 105.3)
The photograph was discussed with the applicant during the Tribunal hearing and this is recorded in its “Claims and Evidence”:
The Tribunal showed the applicant one of the two photographs she submitted at the hearing and asked her why she was standing in front of a police station’s gates in the photograph. She said she was locked up for two months after she was released and she was interrogated. She was frightened and in low spirits. She did not know when she would be arrested again so she decided to have her picture taken in order to sue the authorities. She was asked how did she want to sue the government, she said by writing to government departments. (CB 97-98)
Mr Bevan submits that the Tribunal simply attached no weight to the photographs, particularly the second photograph as discussed above. The relative weight the Tribunal assigns to any piece of evidence is a matter for it alone and is not subject to re-evaluation in judicial review.
I now turn to the allegation of bias. This arose in the applicant’s evidence regarding the number of people who worked in the compensation section of Taikang Insurance Company. This was raised in the s.424A letter to the applicant:
2. In your interview with the delegate (the interview) held on 28 March 2007 you stated that two people worked with you in the “compensation” section of Takiang Company. You also stated that you finished working for Taikang Company in September 2006. However, at the hearing you stated that you were the only person working in the compensation section of the company and that you stopped working for Taikang at the end of January 2007. (CB 98)
The applicant said in her response:
2. I have not been provided a recording tape or transcript in relation to my interview with the delegate held on 28 March 2007. So, I was really unable to remember what had actually happened at the interview. I might not clearly explain my job or structure of my company; or I might not clearly understand the delegate’s question; or the interpreter might not clearly interpret the delegate’s question of my explanations to the question.
Accurately speaking, I actually worked at Fuqing Business Office of Fujian Province Branch of Taikang Life Insurance Co Ltd. The headquarters of Taikang Life Insurances Co Ltd was in Beijing; and the headquarters of its Fujian Branch was in Fuzhou City (the Capital of Fujian Province). Fuqing Business Office was jut an office of Fujian Province Branch of Taikang Life Insurance Co Ltd in Fuqing. All staffs in Fuqing worked together at one office which was about 30m2. For the reason that the employer did not like to have too many staffs in order to reduce its employment cost, we had to share our jobs with others in most of time. But, technically speaking, at that time, I was the only staff who had been authorised to deal with compensation. However, for the reason that I mentioned above, other two staffs often assisted me in dealing with compensation job.
I stopped working for Taikang Company for twice. In September 2006, I was detained by the PSB and was not released until the end of October 2006. So, I was first stopped working at Taikang Company in September 2006. But, I returned to the company after I was released. In the end of January 2007, I had to stop working for Taikang Company for second time, because I went to Shanghai in order to escape from persecution. At the Departmental interview with the delegate, I only had a chance to describe my stopping work for the first time; but I did not have any chance to explain my stopping work for the second time.
3. Regarding compensation for Mr Lin’s leg, there were two major parts; one was medical compensation, which was about RMB 100,000 yuan. So, total compensation should be RMB 200,000 yuan. At the Departmental interview, I might not clearly understand the delegate’s question and I thought that I had been asked the amount of medical compensation. (CB 99-100)
The Tribunal dealt with this in its “Findings and Reasons” after recounting the source of the evidence:
The applicant went on to provide yet a different account of staffing at her section when she stated that due to cost cuts she had to share her job with other most times and whilst “technically speaking” she was the only staff who had been authorised to deal with compensation, two other staff members assisted her in dealing with compensation claims. Even if the Tribunal were to accept that misunderstandings and interpreting issues at the interview were contributing factors, these matters do not explain the different accounts of staffing arrangements provided by the applicant at the review stage. As indicated above, at the hearing the applicant remained resolute that apart from a “review section” she was only one in charge of compensation claims. This differs from her account in her response to the Tribunal’s s.424A letter which suggests that she was assisted by two others in dispensing with her work responsibilities. The Tribunal finds te applicant’s evidence in this regard problematic and unconvincing. (CB 102.5)
Mr Bevan submits that the Tribunal did assess and consider the evidence of the applicant as it is required to do. It compared what was said at the hearing in light of what was said in the s.424A letter. The Tribunal found her evidence problematic and unconvincing, which was similar to the Tribunal in SZKOB. He submits that in both cases, there have been attempts by the applicants to explain away the inconsistencies rather than take issue with the accuracy of what was said to the Department.
Mr Bevan submits that the applicant’s other submission on bias is that a Tribunal member, acting fairly, would investigate why differing accounts were given. Mr Bevan argues that there is no obligation on the Tribunal to conduct any enquiries although it can if it so choses. The appropriate test to be applied for a reasonable apprehension of bias is found in Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982. The test is whether a fair minded lay observer, with knowledge of the circumstances, the facts and the relevant statute, would suspect that the Tribunal did not approach its task with an open mind, or a mind open to persuasion.
I agree with Mr Bevan that there is nothing on the face of the Tribunal record to suggest that the Tribunal had anything other than an open mind in its consideration of this application.
The applicant also questioned the quality of interpretation by the interpreter service. The applicant states that the inconsistencies identified can be explained in three possible ways:
a)The interpretation or translation of the questions was not done properly;
b)The interpreter did not translate the answers properly; or
c)The applicant was misunderstood.
Mr Bevan contends that there is no evidence that any of the above occurred. What did occur was that there was a Tribunal hearing and the inconsistencies were put to the applicant either during the hearing or subsequently in the s.424A letter. The Tribunal considered the applicant’s responses and formed a view adverse to the applicant based on her credit. This finding was open to the Tribunal on the material available to it.
Under s.427(7) of the Act, the Tribunal is required to provide an interpreter when an applicant is unable to give evidence without one: VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [8]. The Tribunal has a statutory obligation under s.425 to ensure the invitation to a hearing is “real and meaningful”, which includes providing an interpreter of sufficient skill such that the applicant is not denied his or her rights to a fair hearing: VWFY at [27].
The application includes an allegation that the Tribunal “incorrectly assessed” the applicant’s credibility. In support of this claim, the applicant lists ten particulars which address the following issues:
a)The Tribunal ignored the applicant’s explanation in her response to the s.424A letter issued (paragraph [2] and [11] of the applicant’s written submissions);
b)The Tribunal considered evidence given at the Departmental interview but failed to provide the applicant with a recording or transcript of that interview (paragraphs [3]-[7] of the applicant’s written submissions);
c)The Tribunal distorted or misstated the applicant’s evidence (paragraphs [8]-[9] of the applicant’s written submissions);
d)The Tribunal based its decision on assumptions (paragraph [10] of the applicant’s written submissions); and
These issues identified above seek to cavil with the merits of the Tribunal decision. The Tribunal rejected the applicant’s claims on the basis of an adverse credibility finding which was a matter of fact for the Tribunal: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The inconsistencies the Tribunal identified and which it relied upon in making its decision were brought to the applicant’s attention in the “Invitation to Comment” letter dated 12 July 2007 and were raised with her during the hearing. Each of these inconsistencies have been addressed above and I am satisfied that no reviewable error has been demonstrated.
Conclusion
The applicant in these proceedings is a self represented litigant assisted by a Mandarin interpreter. The applicant relied entirely on her original application filed in the Court. Despite being afforded the opportunity to obtain panel advice, this was declined as was the opportunity to file an amended application. The applicant prepared written submissions and made oral submissions during the hearing. The Tribunal based its findings on the applicant’s credibility after complying with the provisions of the Act to adequately bring these issues to her attention.
Mr Bevan for the first respondent assisted the Court with written and oral submissions which address the issues raised by the applicant. In light of the material before the Court and on a fair reading of the Tribunal decision, I am satisfied that no jurisdictional error is evident. In the circumstances, I believe the application should be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 June 2008
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