SZMDT v Minister for Immigration

[2010] FMCA 380

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDT v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 380

MIGRATION – Application to review decision of Refugee Review Tribunal – whether translation errors at Tribunal hearing such that denial of a fair hearing under s.425 of the Migration Act 1958 (Cth) – whether conduct of migration agent amounted to third party fraud such that the Tribunal was unable to discharge its statutory functions.

Migration Act 1958 (Cth), ss.286, 425, 426A
Migration Agents Regulations 1998 (Cth), cll.1.12, 2.9, 2.19 of Schedule 2

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Briginshaw v Briginshaw and Another (1938) 60 CLR 336; [1938] HCA 34
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jalagam v Minister for Immigration & Citizenship [2009] FCA 197
Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501; [2008] FCAFC 17
Minister for Immigration and Multicultural Affairs v SZFDE and Others (2006)154 FCR 365; [2006] FCAFC 142
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Reddaway v Banham [1896] AC 199; [1895 – 96] All ER Rep 133
SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189; [2007] HCA 35
SZGSI and Another v Minister for Immigration and Citizenship and Another (2009) 107 ALD 414; [2009] FCA 200
SZHEW v Minister for Immigration and Citizenship [2009] FCA 783
SZHVM v Minister for Immigration and Citizenship and Another (2008) 170 FCR 211; [2008] FCA 600
SZIWK v Minister for Immigration and Citizenship [2007] FCA 168
SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653
SZJZS v Minister for Immigration and Citizenship and Another (2008) 102 ALD 318; [2008] FCA 789
SZLHP v Minister for Immigration and Citizenship and Another (2008) 172 FCR 170; [2008] FCAFC 152
SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67
SZNCW v Minister for Immigration and Citizenship [2009] FCA 818
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131

Applicant: SZMDT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 896 of 2009

Judgment of: Barnes FM

Hearing dates: 19, 20 and 23 November 2009, 8 December 2009

Delivered at: Sydney

Delivered on: 7 June 2010

REPRESENTATION

Counsel for the Applicant: Mr S Prince and Mr B Adam

Solicitors for the Applicant: Lander & Rogers

Counsel for the Respondents: Mr J A C Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 896 of 2009

SZMDT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal made on 18 February 2004 and handed down on 9 March 2004 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of the Peoples Republic of China, arrived in Australia on 24 October 2002.  On 14 January 2003 she lodged an application for a protection visa dated 13 January 2003 with the first respondent, together with a completed form authorising Ms Priscilla Yu, a registered migration agent, to act and receive communications about the visa application on her behalf.  An address in North Sydney was specified as the applicant’s residential address in the protection visa application. 

3. In a detailed statutory declaration dated 13 January 2003 provided in connection with the protection visa application, the applicant claimed to fear persecution in China because of her association with a named Falun Gong practitioner (referred to for convenience as Mr X).  She claimed she had provided financial support to Mr X “to develop his practices of Falun Gong” because of his kindness and willingness to help those in need.  She also claimed that with Mr X’s encouragement she had started a successful garment making business. 

4. The applicant claimed she opened a small “culture centre” for Mr X in October 1998 where he spread Falun Gong, but that after the authorities declared Falun Gong to be an “illegal and anti-government organization” in July 1999 the culture centre was denounced as a “black base”, sealed by the police in August 1999 and Mr X was arrested and detained.  She claimed that a few weeks later she was detained by the local PSB and that her “company was closed by the local government because it had provided financial support to Mr [X] as well as Falun Gong practitioners”.  She claimed she was “physically and mentally mistreated” while detained, that she was asked about Mr X’s activities and that she was forced to make confessions about her “anti-government” activities. 

5. The applicant claimed that after her release in December 1999 she was kept under surveillance for a year and that she could not be employed or re-open her business until January 2001.  She claimed that because of her “black record” the subsequent development of her business was “strictly restricted”, that police visited her frequently and that she was forced to provide products freely to government officers or their relatives and to pay heavy taxes. 

6. The applicant claimed that when Mr X was released at the end of 2001 she gave him employment and he “re-started his practice” and “established [an] underground [Falun Gong] practice centre” at her cousin’s home.  She claimed that she “tried every means to protect, support and help them” and that the practice centre “manufactured and distributed thousands of propaganda material of Falun Gong” in 2002. 

7. However the applicant claimed that in July 2002 she heard from her aunt that her cousin was suspected of distributing Falun Gong material and had had to leave the area.  She claimed that she then “arranged [for Mr X] to go to the countryside” and that when police came to her company to investigate Mr X and her cousin she was detained for a month for investigation, as it was suspected that she “might be the major financial supporter of their underground activities”. 

8. The applicant also claimed that her cousin and Mr X had been arrested “recently”, that they had “exposed [her]…involvement in support of their underground protest against the Chinese government” and that as a result her home had been searched, her company had been sealed and her sister had been detained for investigation because she was looking after the applicant’s company at that time.  The applicant also claimed that her mother was “persecuted to death”. 

9. On 25 March 2003 a delegate of the first respondent refused to grant the applicant a protection visa, having regard to the absence of substantiation for her claims of detention and torture, the ease with which she left the PRC and the delay in her application for a protection visa.  The letter notifying the applicant that her application had been refused was addressed to her at the North Sydney address provided in connection with her protection visa application and marked cc to Ms Yu. 

10. On 22 April 2003 an application for review was lodged with the Refugee Review Tribunal.  Ms Yu was nominated as the applicant’s authorised recipient for correspondence and to act on her behalf.  The residential address provided for the applicant was the North Sydney address.  Accompanying the application was a further statutory declaration declared by the applicant on 17 April 2003, which took issue with the decision of the delegate and repeated in substance the claims made by her in her first statutory declaration.

11. On 23 April 2003 the Tribunal wrote to the applicant care of Ms Yu (with a copy addressed to the applicant at the North Sydney address) acknowledging receipt of her application and advising her, among other things, to tell the Tribunal immediately if she changed her home or mailing address or telephone number.  The letter enclosed a form to be used for that purpose.  The letter also advised the applicant to send to the Tribunal any documents, information or other evidence she wanted the Tribunal to consider. 

12. On 29 October 2003 the Tribunal again wrote to the applicant care of Ms Yu (with a copy addressed to the applicant at the North Sydney address) inviting her to attend a hearing on 17 December 2003.  The Tribunal received a completed and signed Response to Hearing Invitation form dated 9 November 2003 in which the applicant indicated that she wished to attend the hearing.  On that form the home address and mailing address provided for the applicant was the North Sydney address. 

13. On 16 November 2003 the Tribunal received a signed Change of Address Details form for the applicant dated 16 November 2003 advising that she had a new home and mailing address in Campsie.  The Tribunal acknowledged receipt of the Change of Address Details form by letter sent to Ms Yu with a copy sent to the applicant at the Campsie address on 17 November 2003. 

14. The court book contains Tribunal case notes which indicate that the Tribunal hearing was rescheduled and that the Tribunal rang the applicant’s adviser on 9 December 2003 leaving a message.  In addition, on 9 December the Tribunal wrote to the applicant care of Ms Yu (with a copy sent to the Campsie address), advising her that the hearing date had been changed to 3 February 2004.  The copy letter sent to the applicant’s Campsie address bears a registered post sticker.  The court book contains a copy of what appears to be the envelope containing that letter that was returned as unclaimed to the Tribunal on 16 January 2004 from the Campsie address.  However according to a Tribunal file note, the applicant’s adviser called the Tribunal on 12 December 2003 to confirm that the applicant would attend the hearing. 

15. The applicant attended the hearing on 3 February 2004.  According to the Tribunal’s records, at the hearing the applicant’s Campsie address was confirmed as her home and mailing address.  The applicant acknowledged receipt of a copy of the hearing tapes in a signed Request for Copy of Tapes form dated 3 February 2003 (presumably an incorrect reference to 2004). 

16. On 19 February 2004 the Tribunal wrote to the applicant care of Ms Yu (with a copy sent to the applicant at the Campsie address), inviting her to attend the handing down of the Tribunal decision.  On 9 March 2004 the Tribunal wrote to the applicant care of Ms Yu (with a copy sent to the Campsie address) enclosing a copy of the decision affirming the decision of the delegate. 

17. On 5 March 2007 the applicant was detained at Villawood Immigration Detention Centre.  On 20 March 2007 the applicant wrote to the Tribunal as follows:

    Now, I am preparing to appeal for my case, but my all information and documents had been lost by the past Agent.  So I can only request you help me to copy my all past information and documents in my case to send me.  I hope you will send me soon.

18. On 20 March 2007 the Tribunal faxed a copy of its decision to the applicant. 

19. On 21 March 2007 the applicant made a written request for Ministerial intervention in which she claimed she had been persecuted in China and had helped Falun Gong practitioners.  She referred to her application for a protection visa and stated that the visa application was

    … refused soon, then I continued to apply for a protection visa in the RRT.  The application was refused again by the RRT.  When I needed to employed a lawyer who could help me appeal to the Federal Court, but this will need many money, such as I could only raise fund with every ways. 

    But in the process, the adversity befell, herefrom I fell into an abyss of the suffering until today. 

20. In her request for Ministerial intervention the applicant took issue with her treatment by a medical practitioner in 2005.  She explained that she had been hospitalised, that she thereafter found lawyers to represent her in relation to possible legal proceedings against the doctor, but that those lawyers told her that the doctor did not have any money and she would have to pay them “first”.  She continued “But I have been struggling in the suffering.  I haven’t money to pay the lawyer cost.  Such that my case haven’t been appealed to the Federal Court until today.”

21. On 19 March 2008 the applicant received notification that her request for Ministerial intervention had been denied. 

22. On 16 April 2008 the applicant commenced judicial review proceedings in this court.  However on 18 August 2008 she filed an application for an order nisi in the High Court and on that day Federal Magistrate Orchiston ordered that the proceedings in this court be discontinued.  On 17 April 2009 the applicant discontinued the proceedings in the High Court and again applied to this court for review of the Tribunal decision. 

The Tribunal decision

1. In its findings and reasons the Tribunal summarised the applicant’s claims as follows:

   The applicant claims that she faces persecution in the PRC because she provided financial support to a leading Falun Gong practitioner in her city.  Prior to the banning of Falun Gong she funded a number of Falun Gong practise stations run by this man.  After Falun Gong was banned and both the applicant and her friend had been subjected to periods of detention because of their Falun Gong activities, the applicant continued to assist her friend as he continued to practise Falun Gong in a small group, and produced and distributed Falun Gong material.  The independent information referred to above indicates that many Falun Gong practitioners have been subjected to persecution as part of the PRC government’s campaign to prevent the practice of Falun Gong.  While there is little evidence about the situation of people who, while not dedicated practitioners themselves, may have provided financial or other material support to the Falun Gong movement or individual practitioners, it is plausible that such persons could have come to the adverse attention of the authorities.  The applicant does not claim that she faces persecution for reason of her practice of Falun Gong, but because she is viewed as an organiser because of her support for Mr X. 

2. The Tribunal noted that the applicant did “not claim to have been a dedicated or regular practitioner of Falun Gong” and found that this was the case, although it accepted that she had “some involvement with the practice of Falun Gong both in China and in Australia”.  However, based on the applicant’s evidence, the Tribunal was satisfied that “the authorities were not concerned about [her] practice of Falun Gong in …[China], if they were even aware of it”.  The Tribunal observed that the applicant did not claim to have been asked about or told to stop any practice of Falun Gong and that it did “not appear, on her evidence, to have been a component in the interest of the authorities in her” or in her decision to assist Mr X. 

3. The Tribunal found on the applicant’s evidence that her decision not to practice Falun Gong and to limit her involvement after her detention in 1999 “was as much because of lack of time as because of fear” and that given her “minimal level of commitment to Falun Gong, the fact that she was unable to practise Falun Gong after 1999, of itself, does not constitute persecution”. 

4. The Tribunal also found on the applicant’s evidence that while she occasionally practiced Falun Gong in Australia, she had “not been involved in Falun Gong practice or protests in Australia to a significant degree…because she does not have time to do so” and that she was not at risk of persecution because of her activities in Australia.  It was “not satisfied…that [she] would wish to resume her practise of Falun Gong if she returned to the PRC” and was “satisfied that even if she was unable to do so, this would not constitute persecution in the sense of the denial of a fundamental right”. 

5. The Tribunal continued:

   I have carefully considered the evidence of the applicant about her circumstances prior to her departure from the PRC.  While I found the applicant’s evidence, at least in part, to be credible, there are significant areas where her evidence was vague, internally inconsistent or inherently implausible.  The applicant was visibly, and I believe, genuinely, distressed at times while she was giving evidence, and I believe that she was subjected to some mistreatment at the hands of the authorities in the PRC.  However, after carefully considering her evidence as a whole, I am not satisfied that she faces a real chance of persecution on return for the reasons she claims.  

6. The Tribunal accepted the applicant’s claims that she provided financial support to Mr X and “that he used this money to fund a number of Falun Gong stations which he set up in their place of residence” and that “when Mr X was detained [in 1999] following the banning of Falun Gong, the applicant was also detained for questioning about her involvement with the Falun Gong organisation”.  The Tribunal accepted that the applicant was mistreated as she claimed during that detention and that she was released, presumably, because there was no evidence against her and she admitted nothing.  The Tribunal stated:

   I am satisfied that it was not because of commitment to Falun Gong that the applicant refused to assist the authorities or renounce any connection with Falun Gong, but rather, because she feared that to admit anything would make her situation worse.  I note the applicant’s evidence that she does not know whether Mr X gave the authorities any information about her involvement during his longer period of detention.  Difficult as it is to believe that the two did not discuss this following Mr X’s release from detention, it appears from the surrounding circumstances, that in fact he did not, because no further action was taken against the applicant in relation to what she actually had actually done during this earlier period – providing financial support to the Falun Gong movement in her city.  I therefore find, based on the evidence, that the authorities never actually knew that the applicant provided financial support to Mr X prior to her detention in 1999.  I also find that the authorities were either not aware of, or not interested in, the fact that the applicant had practised Falun Gong herself. 

7. The Tribunal accepted the applicant’s evidence about why she did not practice Falun Gong after her release from detention, finding that she “never sought to present herself as a dedicated or committed practitioner” and that her “inability to practise Falun Gong during this period did not constitute persecution”.  It also accepted that “her business remained closed for a period after [her release] from detention at the end of 1999, and that she was monitored by the police”.  However, the Tribunal was satisfied that “by January 2001, when [the applicant] was allowed to re-open her business, she was no longer of interest to the police”.  While the Tribunal accepted that the applicant was “harassed by the police and that she bribed them by giving them expensive clothes”, it found that “this degree of harassment and extortion falls short of persecution”. 

8. The Tribunal found, “[b]ased on [the applicant’s] evidence that by June 2002 she [planned] a holiday with her son” and that they were both “able to obtain passports without difficulty”.  It was satisfied that “by this time the applicant’s life had returned to normal, and that she was not of interest to the authorities”. 

9. The Tribunal then found that it had “serious doubts” in relation to the “events described by the applicant as having taken place after Mr X’s release from detention in late 2001”.  The Tribunal stated:

   Accepting that Mr X did set up a private Falun Gong practise group at the home of the applicant’s cousin, the applicant’s evidence was that she did not practise Falun Gong herself again at all, and had nothing to do with this group until May 2002.  She said that this was because she was afraid to incriminate her family.  She claimed, however, that in May 2002 she agreed on two occasions to put up posters cryptically advertising her cousin as a contact for Falun Gong practice.  She also gave evidence that she did not really understand how this process worked to communicate a message about Falun Gong; and explained that she only agreed to perform this task because she felt obligated to help Mr X, and because she felt that Falun Gong practitioners were right and should not be persecuted by the government. 

   I found the applicant’s evidence about this issue to be most unsatisfactory.  If it was the case that she did not engage in Falun Gong practise or in the production of propaganda following her release from detention because she was afraid to, I find it difficult to accept that she then agreed to participate in an activity which she appears to have considered pointless, for the stated reason that she felt obliged to help Mr X out of friendship, despite having suffered detention, torture and financial disadvantage as a result of her previous assistance to him.  In my view, the applicant’s account of these events simply does not ring true. 

   Moreover, there was a significant inconsistency between the claim in the applicant’s statement that she helped her cousin and Mr X to produce and distribute thousands of Falun Gong propaganda, a claim which attempts to portray her involvement at this time as significant indeed; and her claim at the hearing that she had no involvement in producing this material and minimal involvement in distributing it.  I consider that this inconsistency is significant not in numerical terms, as to whether the group produced hundreds, or rather, thousands, of documents, but because of the major discrepancy in the level of the applicant’s involvement, which according to the written statement was significant, but, on her oral evidence, was at most marginal.  The applicant was unable to satisfactorily explain this inconsistency; and I consider that it reflects a lack of truth in her claims surrounding events at this time. 

1. The Tribunal also found that the “applicant’s account of subsequent events, starting with the claimed discovery by the police of the underground group, was vague and inherently improbable”.  Thus the Tribunal found it “impossible to believe that, based on “feelings” aroused by the vaguest of indications, the applicant’s aunt sent her daughter… into hiding, or that, guided by her aunt’s intuition, the applicant arranged for Mr X also to go into hiding…shortly before the police in fact started investigating the existence of the group and sought to locate Mr X and the applicant’s cousin”.  The Tribunal found it “[e]qually improbable that…no one else” associated with the applicant’s family or Mr X “was detained or questioned in relation to their whereabouts or activities, while the applicant, whose involvement…had been so marginal, according to her own evidence, was detained for one month”.  Nor did the Tribunal accept “the applicant’s account of the police discovery of Mr X’s renewed activities and his lucky escape” with the applicant’s assistance or that “the applicant would have been the main person to fall under police suspicion at this time, given her current remote connection with the claimed activities of Mr X, and given that the police apparently had no knowledge of her past connection with him”. 

2. The Tribunal also found that “the applicant’s evidence as to the making of her departure arrangements [was] similarly most unsatisfactory”.  It did “not accept that she was of interest to the authorities at the time of her departure, or…that her evidence about these matters was truthful” for reasons which it gave, including the fact that there was “no reason why the applicant would have found it necessary…to pay a large bribe in order to obtain a visa to visit Australia”, as “this was a matter for the Australian authorities, not the local PSB”.  The Tribunal found the fact that the applicant was able to leave the PRC on a passport issued in her own name indicated “that she was not, at that time, of particular interest to the authorities”.  The Tribunal found the applicant’s oral “evidence about these issues to be evasive and unhelpful”, as it explained, and was not satisfied that she had “encountered any particular difficulties” in leaving China “on account of any adverse interest in her by the authorities”. 

3. Finally, the Tribunal found the applicant’s oral account of events in China since her departure was “so inconsistent and implausible” that it did not accept it.  It stated:

   The applicant stated a number of times throughout the hearing that she had had no contact with anyone in China since her departure.  She made this claim in the context of questions about her son, about her ability to obtain his passport, and in general.  However, when asked how she knew about developments she claimed had occurred in relation to the arrests of Mr X, her cousin, her sister and her own business, she then informed me that she had spoken to a friend on one occasion only.  Her evidence as to what information the friend had given her was most unsatisfactory, and I formed the impression that the applicant was making it up as she went.  She claimed first that the friend had told her only about the business and her sister, then, when asked how she knew about Mr X she told me that the friend had informed her about him also, but that was all; then when I asked how she knew about her cousin she said that the friend had told her about her cousin as well.  Each time she stated that the friend had hung up after imparting each piece of news, until I asked her about the next.  In these circumstances. I do not accept the applicant’s account of this telephone call.  Nor do I accept that given the enormity of the events she claims have occurred since her departure, including the ill health in which she claims to have left her mother, and her loss of contact with her only child, the applicant would have made only one attempt to have contact with anyone in the PRC during her absence.  I therefore do not accept her account of events since her departure, namely the series of arrests of her associates and family members, and I do not accept that the applicant would therefore also face arrest and imprisonment if she returned. 

4. The Tribunal concluded that, “in light of the difficulties [it had] identified…in relation to the applicant’s evidence about events after January 2001 when she was allowed to re-open her business, [it did] not accept that [she] was, after that time, subjected to ongoing attention by the authorities in relation to any connection with Falun Gong”.  It found that she was “not of interest” to the authorities when she left China and that “nothing she h[ad] done and nothing that ha[d] happened since her departure would bring her to the adverse attention of the authorities in the reasonably foreseeable future”.  The Tribunal did “not accept that [the applicant’s] friends and family members had been arrested since her departure for Falun Gong related activities, or that the applicant [wa]s thereby placed at risk of arrest”.  It was satisfied that the applicant did “not have a well founded fear of persecution in the PRC for reason of her support, or perceived support for Falun Gong”. 

Section 425 of the Migration Act

1. The first ground in the application is as follows:

   The Applicant, an asylum seeker, was denied a fair hearing under s 425 of the Migration Act 1958 (Act), when material errors in the translation of the Applicant’s oral evidence caused the Second Defendant’s (Tribunal) decision- making process to miscarry.

   Particulars

   (a) The interpreter at the hearing translated the Applicant as saying she distributed “hundreds not thousands” of Falun Gong materials.

   (b) The Applicant actually said “over a thousand not over ten thousand.”

   (c) The Tribunal member relied on the translation provided by the interpreter at the hearing. 

2. In support of this ground the applicant relied on affidavits of two NAATI accredited interpreters and translators that were originally filed in the High Court proceedings: an affidavit of Jack Chen sworn on 12 November 2008 and an affidavit of Tong (Tonya) Lee sworn on 5 March 2009. 

3. Mr Chen’s evidence was that he had listened to “the beginning part of tape two of the Hearing Tapes” and found the interpreter at the hearing “for the most part to be highly competent and accurate in her translation”.  A partial transcript of the hearing was annexed to his affidavit.  The only part of the Tribunal hearing in issue under ground 1 is that part in which the Tribunal questioned the applicant about her claimed involvement in the distribution of Falun Gong leaflets or notices in May 2002 after the applicant confirmed that on two occasions in May 2002 she put up notices.  Mr Chen identified an error in translation in an exchange between the Tribunal and the applicant in relation to the quantity of propaganda material manufactured and distributed in 2002 by the underground Falun Gong practice centre set up by Mr X. 

4. Mr Chen’s unchallenged evidence as to the mistranslation at the Tribunal hearing was relied on in the particulars to this ground and in the applicant’s written submissions.  It is as follows:

   I have identified an error at page 19 of the transcript, and have inserted in bold type what is actually said by the witness/person under examination in Mandarin or the Interpreter where the content of the Transcript/English on the tape is inconsistent with the spoken Mandarin on the tape:

   TRIBUNAL MEMBER:    Can you tell me when this was?

   APPLICANT:                   In the Uni’s [the Applicant said ‘both in the evenings’]

   TRIBUNAL MEMBER:    Can you tell me the year or the month?

   APPLICANT:                   May 2002.

   TRIBUNAL MEMBER:    So both times you put up the leaflets were in May 2002?

   APPLICANT:                   Yes

   TRIBUNAL MEMBER:    In the statement with your application it says that, that their underground practice centre manufactured and distributed thousands of propaganda material of Falun Gong during 2002. 

   INTERPRETER:                   […distributed over 10,000…] in Mandarin to the Applicant

   APPLICANT:                   Yes

   TRIBUNAL MEMBER:    So –

   (there is some mumbling over the tape and the Tribunal Member commences asking the next question, but the Applicant then makes a correction)

   APPLICANT:    Hundreds not thousands. [what was actually said by the Applicant was over 1,000 not over 10,000, which is the Mandarin equivalent of thousands, not tens of thousands]

5. Ms Lee stated in her affidavit that she had listened to the Tribunal hearing tapes and had “compared the spoken Mandarin on those tapes with the English transcript”.  Annexed to her affidavit was a complete copy of the English transcript of the hearing containing her translation notes in Mandarin and bold type English text where the spoken Mandarin was inconsistent with the English transcript.  Her evidence was referred to in oral submissions for the applicant. 

6. According to Ms Lee (and her evidence was not disputed by the first respondent) the interpreter misunderstood the meaning of “thousands of” and translated it as “several ten thousands” in Mandarin when she interpreted what the Tribunal had said for the applicant in the above exchange. 

7. The applicant’s response to this question, as translated, was “Yes”.  The Tribunal member then said “So – ”.  As deposed to by Ms Lee, in her response to the Tribunal the applicant in fact emphasised “not several ten thousands” but “thousands”, but the interpreter mistranslated into English what she said as “hundreds” not “thousands”. 

8. Counsel for the applicant submitted that this was a crucial exchange, because there was a challenge by the Tribunal to the applicant’s written statement provided in connection with her protection visa application about the nature of her role in relation to the Falun Gong centre, the number of documents distributed in May 2002 and her involvement in such distribution. 

9. The applicant submitted that the translation error relied on in ground 1 involved an insufficient distinction being drawn between “hundreds”, “thousands” and “tens of thousands”.  The Tribunal was told by the interpreter that the applicant said that the underground practice centre manufactured and distributed “hundreds not thousands” of items of propaganda material, when what the applicant actually said was “over a thousand not over ten thousand” in response to the interpreter’s mistranslation of “thousands of” as “several tens of thousands”. 

10. In her statutory declaration the applicant had said that the underground practice centre supported by her “manufactured and distributed thousands of propaganda material of Falun Gong material during the year of 2002”.  Counsel for the applicant contended that what the applicant actually said at the hearing (that the centre distributed over a thousand items of Falun Gong propaganda material, not over ten thousand) was not inconsistent with her statutory declaration.  It was contended that the mistranslated oral statement that the underground practice centre distributed “hundreds not thousands” was the inconsistency in the applicant’s evidence the Tribunal found existed between the level of involvement claimed by the applicant in writing and orally which it saw as “reflect[ing] a lack of truth in her claims surrounding events at [that] time”. 

11. On this basis it was submitted that the translation error had “created a mistaken impression of the Applicant’s evidence in the mind of the Tribunal member”.  Counsel for the applicant submitted that had the misunderstanding based on mistranslation in the hearing not occurred, the inconsistency that the Tribunal found in respect of whether hundreds rather than thousands of documents were produced and distributed would not have arisen, and that without the translation error the “apparent inconsistency in the Applicant’s evidence [wa]s removed”.  Hence it was said that the error in the translation of the amount of Falun Gong propaganda material said to have been distributed by the underground practice centre supported by the applicant was “material” to the Tribunal’s finding that there was a major discrepancy between the level of involvement claimed by her in her written evidence and in her oral evidence and its “adverse conclusion that the Applicant was generally not trustworthy in her evidence”. 

12. The applicant acknowledged that in its reasons for decision the Tribunal had stated that the actual numbers were not significant, but submitted that what it saw as significant was the inconsistency in the applicant’s evidence about the propaganda material distributed.  Reference was made to the Tribunal’s finding that the fact that the applicant “was unable to satisfactorily explain th[ese] inconsistenc[ies]…reflect[ed] a lack of truth in her claims surrounding events at [that] time”.  It was contended that had there been proper interpretation at the hearing this “inconsistency” would not have arisen and hence that one could not exclude the possibility that the interpretation error had had a material effect on the view taken of the applicant’s credibility by the Tribunal. 

13. It was also submitted that this misinterpretation was such that the standard of interpretation at the hearing was inadequate and hence that the Tribunal had failed to comply with s.425 of the Migration Act 1958 (Cth) on either of the bases considered by the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230.

14. In Appellant P119/2002 the Full Court of the Federal Court referred to other cases about the required standard of translation and then stated (at [17] – [18]):

    In its written submissions the respondent, after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:

    (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or

    (b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.

    The respondent's acknowledgment in those terms seems to reflect the views of the Court in Singh (at 6[27]) and in Perera (at 22[38]-[41]) as to the first proposition and in Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18] as to the second. The appellant did not contend that a more stringent obligation lay upon the Tribunal. It is therefore not necessary to determine whether the existing authorities go so far as the respondent acknowledged.  (footnotes omitted)

15. It was not disputed that the principles referred to in Appellant P119/2002 (which have been followed or cited with approval on numerous occasions: for example WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131; SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653; SZJZS v Minister for Immigration and Citizenship and Another (2008) 102 ALD 318; [2008] FCA 789; SZNCW v Minister for Immigration and Citizenship [2009] FCA 818; SZHEW v Minister for Immigration and Citizenship [2009] FCA 783; SZGSI and Another v Minister for Immigration and Citizenship and Another (2009) 107 ALD 414; [2009] FCA 200) are applicable.

16. However it has not been established that there was a failure to comply with s.425 of the Act or otherwise a jurisdictional error in the manner contended for in ground 1 of the application.

17. First, it has not been established that the error in question was material to the conclusions of the Tribunal adverse to the applicant in the sense considered in Appellant P119/2002.  It is necessary in this respect to have regard to the applicant’s claims in the statutory declaration, the context in which the evidence in question was given at the Tribunal hearing and also to what the Tribunal actually found in relation to inconsistencies in the applicant’s claims. 

18. In the statement accompanying her protection visa application the applicant had stated that Mr X had set up a Falun Gong practice centre in her cousin’s home after his release from detention and that: “I tried every means to protect, support and help them.  The practice centre had manufactured and distributed thousands of propaganda material of Falun Gong during the year of 2002.”  The applicant also claimed in her statement that in July 2002 her cousin was suspected of distributing Falun Gong material and left the area and that being informed of this by her aunt she arranged for Mr X to go to the countryside.  She claimed that soon after this the police detained her, suspecting that she might be the “major financial supporter of [the] underground activities” of Mr X and her cousin. 

19. At the hearing, after the applicant explained that she “[b]asically” had not practiced Falun Gong in China after her 1999 detention and that she had nothing to do with the on-going practice in her cousin’s home, the Tribunal questioned her about whether she had any involvement with Mr X and his practice of Falun Gong, or with her cousin, after Mr X’s release from detention at the end of 2001.  She claimed that she had “no choice” but to help Mr X and her cousin because they both worked for her company and that she “had to protect them” or her company would be destroyed.  She also claimed that she had to “protect them to help them”.  The Tribunal member then asked “And how did you help them and protect them?” 

    APPLICANT: So they went to my cousin’s home and I said to them you know try not to attract the attention and you know so they wanted to print the leaflets. I said, and also they wanted to distribute the leaflets.  I said why you want to do that? And so they wanted to do it so sometimes I help them to distribute, so I went somewhere and on my way and I help them to distribute the leaflets.  So I am a person who is grateful for other people’s help and assistance, so they have helped me before so I always wanted to pay back.  However I was, you know, in a situation like I didn’t want to do it but I couldn’t help which means I had to help them.  So every time when I helped them I was scared afterwards. 

    TRIBUNAL MEMBER: How did you distribute these leaflets?

    Applicant: I took the leaflets out, I stapled the leaflets on telephone poles and they have the contact details on the leaflets and people can get in touch with them.

    TRIBUNAL MEMBER: What were the contact details?

    APPLICANT: So like selling goods.

    TRIBUNAL MEMBER: Selling goods?

    APPLICANT: Yes, like selling goods.

    TRIBUNAL MEMBER: Could you tell me exactly what was on these leaflets?

20. The applicant then gave evidence about what was on the leaflets.  She said she did not know the details or exactly how the contact worked and confirmed that there was “no direct mention of Falun Gong on [the] leaflets that [she had] helped to distribute”. 

21. The Tribunal stated:

    I have to say I find it really difficult to believe that you would actually do this for them having been detained and mistreated and lost your business, that you would then provide further assistance to people in promulgating Falun Gong. 

22. In response, the applicant provided an explanation based on her upbringing, family experience and belief that Communist Party polices were wrong.  The Tribunal reiterated “I still find it a bit difficult to understand why you would do something as dangerous as continue to associate with an underground Falun Gong practice given how much you had already suffered.”

23. The applicant then suggested that she felt that what they did was “right”, that she “couldn’t help them when they were arrested” but that thereafter Mr X had asked for her help.  (I note that no issue was taken in the particulars to ground 1 with the accuracy of the interpreter’s translation of this response, although it was corrected in Ms Lee’s affidavit). 

1. Importantly, the Tribunal then asked:

   TRIBUNAL MEMBER: Did you give them any other help besides putting up the notices?”

   APPLICANT: No, because it was only at an initial stage so that’s why I didn’t help them very much and also I was very busy with my own work.

   TRIBUNAL MEMBER: How many times did you put up these notices?

   APPLICANT: Twice.

   TRIBUNAL MEMBER: Can you tell me when this was? 

   APPLICANT: In the Uni’s (sic).  [This response was corrected by Mr Chen to “In the evenings” but was not corrected by Ms Lee].

   TRIBUNAL MEMBER: Can you tell me the year or the month?

   APPLICANT: May 2002.

   TRIBUNAL MEMBER: So both times you put up the leaflets were in May 2002?

   APPLICANT: Yes.

2. It was at that point that the Tribunal said to the applicant: “In the statement with your application it says that, that their underground practice centre manufactured and distributed thousands of propaganda material of Falun Gong during 2002” and the word “thousands” was mistranslated into Mandarin as “several ten thousands”.  In reply the applicant emphasised that it was not “several ten thousands” but “thousands”, but the interpreter translated this reply into English as “hundreds not thousands”. 

3. The Tribunal then questioned the applicant about her knowledge of other material produced by the underground practice centre as follows:

   TRIBUNAL MEMBER: And this propaganda material, was this the leaflets about the direct selling?

   APPLICANT: Yes.

   TRIBUNAL MEMBER:  Was anything else, any other written material produced as far as you know?

   APPLICANT: I knew that they produced some other materials and because I didn’t distribute these materials so that’s why I didn’t know exactly what they produced.

   TRIBUNAL MEMBER:  How did you know they produced it?

   APPLICANT: The second time I said to them, so what you are doing is very dangerous and they asked me, they said we have other materials, they need to be distributed, and so you know because I was very busy with my work and I had my business at that time so I didn’t have the time to do that.  And I was worried about it, I was scared, and also was very contradicting inside myself afterwards. 

   TRIBUNAL MEMBER: Do you know what other material they produced?

   APPLICANT: I don’t.

   TRIBUNAL MEMBER: Do you know how they produced it?

   APPLICANT: They printed the materials with a printer.

   TRIBUNAL MEMBER: Where was the printer?

   APPLICANT: It was in my cousin’s home.

4. The Tribunal then discussed the applicant’s evidence that five people, including her cousin and Mr X, attended Falun Gong sessions in her cousin’s house.  She denied any involvement in such attendances. 

5. The Tribunal finding in issue in its reasons for decision was as follows:

   Moreover, there was a significant inconsistency between the claim in the applicant’s statement that she helped her cousin and Mr X to produce and distribute thousands of Falun Gong propaganda, a claim which attempts to portray her involvement at this time as significant indeed; and her claim at the hearing that she had no involvement in producing this material and minimal involvement in distributing it.  I consider that this inconsistency is significant not in numerical terms, as to whether the group produced hundreds, or rather, thousands, of documents, but because of the major discrepancy in the level of the applicant’s involvement, which according to the written statement was significant, but, on her oral evidence, was at most marginal.  The applicant was unable to satisfactorily explain this inconsistency; and I consider that it reflects a lack of truth in her claims surrounding events at this time. 

6. I do not accept the applicant’s contention that the only inconsistency identified by the Tribunal were the issue about the number of documents.  Rather, it is clear from the Tribunal’s reasons for decision that it was concerned with the inconsistency between the applicant’s written claim that she helped her cousin and Mr X in their production and distribution of thousands of items of Falun Gong propaganda, (which the Tribunal saw as a claim which attempted to portray her involvement with the underground centre after Mr X’s release from detention as significant) and her claim at the hearing that she had no involvement in producing the Falun Gong propaganda material and minimal involvement in distributing it, on which basis her claimed involvement with the group’s activities was at most marginal.  This was a concern about the inconsistency in the applicant’s claims about the level of her involvement, not about the quantity of propaganda material produced and distributed by the centre. 

7. Consistent with the Tribunal’s finding, it is apparent from a consideration of the transcript of the Tribunal hearing that the applicant’s oral claims were that the extent of her involvement in production and distribution of material by the underground practice centre and her assistance to Mr X and her cousin in that respect were quite limited.  She told the Tribunal that what she did was limited to stapling leaflets to telephone poles on two occasions in May 2002 and that she did not give them any other help besides putting up the notices.  She said this was because it was “at an initial stage” and she was “very busy with [her] own work”.  She also claimed that while the underground practice group had produced some other written material she had not helped to distribute this, being busy and scared.  She did not know what other material they produced. 

8. It was in light of this evidence that the Tribunal made the finding about an inconsistency in the applicant’s written and oral claims.  Contrary to the applicant’s submission, it is clear that the Tribunal was not considering an inconsistency in relation to whether the applicant referred to hundreds or thousands or any other numerical quantity of items of propaganda material being manufactured and distributed in 2002 by the underground practice centre, but rather an inconsistency in the applicant’s evidence in relation to the level of her involvement in the production and distribution of Falun Gong propaganda material.  In other words, it was not a question of how many leaflets were produced or distributed, but rather the nature or level of the applicant’s involvement in the centre’s activities that was significant.  As the Tribunal stated, the precise number of leaflets in question was not significant. 

9. The mistranslation has not been shown to be material to the conclusions of the Tribunal adverse to the applicant in the sense described in Appellant P119/2002.  The Tribunal did not rely on the mistranslated evidence in any way that was material or critical to the outcome.  It expressly disavowed that there was any materiality attaching to the number of documents that the applicant claimed had been produced.  It was open to the Tribunal to find that there was an inconsistency in the applicant’s claims about the level of her involvement in producing and distributing material and to regard the substance of the applicant’s written claims as giving an impression that she had a great involvement in production and distribution of propaganda material whereas at the hearing she disclosed a minimal involvement in distribution and none in production of the material. 

10. Further, as submitted for the first respondent, the translation error relied on by the applicant is not such as to demonstrate that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence. 

11. It is well established that “[i]t is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal” as Kenny J stated in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [45].

12. The only mistranslation relied on in the particulars to this ground was isolated and did not relate to a matter of substance or significance for the applicant’s claims or the Tribunal decision (ibid and see SZIWK v Minister for Immigration and Citizenship [2007] FCA 168 at [15]). In his affidavit, Jack Chen stated that he had “listened to the beginning part of tape two of the Hearing Tapes, and [found] the interpreter for the most part to be highly competent and accurate in her translation”, albeit that he went on to identify the error relied on in the particulars to ground 1. 

13. As in Appellant P119 (at [19]), having regard to the fact that the “very substantial part of the hearing before the Tribunal appears to have been fully and accurately interpreted”, I am not persuaded on the basis of the isolated mistranslation relied on in the particulars to ground 1 that it has been established that the standard of interpretation at the hearing was so poor that it effectively prevented the applicant from giving evidence. No failure to comply with s.425 of the Act has been established. Nor has it been established that the applicant was denied a fair hearing in that material errors in translation of her evidence caused the Tribunal’s decision-making process to miscarry.

14. Ground 1 is not made out. 

Third party fraud

1. The second ground in the application is as follows:

   The Applicant’s migration agent fraudulently interfered with the Applicant’s application for a protection visa. This fraud has had the consequence of stultifying the operation of the legislative scheme to afford natural justice to the applicant, according to Div 4 of Pt 7 of the Migration Act 1958. By reason of this “third party fraud”, the Second Defendant Respondent was unable to discharge its statutory functions with respect to the conduct of the review. Consequently, the decision of the Second Defendant was, in law, no decision at all and its jurisdiction remains constructively unexercised.

   Particulars

   (a) The migration agent advised the Applicant to sign documents in support of her application without explaining the contents of those documents;

   (b) The migration agent failed to explain the content/questions contained in the Protection Visa Application or the Application for Review;

   (c) The migration agent failed to advise the Second Defendant of the Applicant’s change of address;

   (d) The migration agent failed to advise the Applicant of the contents of the Second Defendant’s “Invitation to Hearing” letter;

   (e) The migration agent failed to advise the Applicant about the purpose of the proceedings before the Second Defendant;

   (f) The migration agent failed to advise the Applicant of the opportunity to submit documents and further information in support of her claim;

   (g) The migration agent failed to send the decision of the Refugee Review Tribunal to the Applicant and failed to communicate that decision to the Applicant; and

   (h) The migration agent instructed the Applicant to lie to the Refugee Review Tribunal.

2. By a notice of particulars filed on 28 August 2009 the words “migration agent” in paragraph 2 of the application were particularised by the applicant as references to “Priscilla Yu; and/or…Pricilla International Co Pty Ltd by its employee or agent Priscilla Yu”. 

3. Priscilla Yu is a registered migration agent. Under s.286 of the Migration Act “individuals” may be registered as migration agents.  As clarified in the notice of particulars, it is alleged that Priscilla Yu, as the applicant’s migration agent, “fraudulently interfered” with the applicant’s application for a protection visa in the eight respects particularised and that such fraud stultified the operation of the legislative scheme to afford natural justice to the applicant under Division 4 of Part 7 of the Migration Act (which deals with the conduct of the review by the Tribunal).

The Evidence

1. The applicant relied on affidavits sworn by her on 12 November 2008, 3 August 2009 and 28 August 2009 and an affidavit of Amanda Jane Harvey sworn on 10 August 2009. 

2. The applicant’s affidavit of 3 August 2009 was said to be a clarification of the affidavit of 12 November 2008, in particular in relation to the involvement of Harry Huang (Ms Yu’s husband) in connection with the applicant’s protection visa application.  However, ground 2 as particularised relies on the alleged conduct of Ms Yu, not that of Mr Huang.  The amendments in that affidavit were incorporated in the applicant’s affidavit of 28 August 2009, together with other changes and additions to what was contained in her affidavit of 12 November 2008.  For example, references to contact with the applicant’s “agent” were replaced with specific references to Ms Yu or to Harry Huang and additional evidence was provided about what was said to have occurred in dealings with Ms Yu.  In addition, the applicant’s claim to have “limited” English skills was amended to a claim that she had “no” English skills and her evidence that after her application was refused by the Department Ms Yu discussed the possibility of an “appeal” with her was replaced by evidence that Ms Yu discussed the possibility that the applicant “make another application”.  Unless otherwise stated, future references to the applicant’s affidavit are to her affidavit of 28 August 2009. 

3. In that affidavit the applicant recounted details of her introduction to Ms Yu, a number of meetings and conversations with Ms Yu and with Mr Huang on approximate dates thereafter and what she claimed occurred (and did not occur) on such occasions.  The applicant was cross-examined on her evidence. 

4. Ms Yu affirmed an affidavit on 8 July 2009.  It was relied on by the first respondent together with an affidavit of Sylvia Zammit (an employee of the Department of Immigration and Citizenship who at the time that the applicant was taken into detention worked with the Department’s New South Wales Removals Team) sworn on 9 September 2009.  Ms Yu and Ms Zammit were also cross-examined. 

5. In her affidavit, Ms Yu detailed a number of telephone calls and meetings she claimed she had with the applicant on specified dates, and what occurred in such encounters.  She also described claimed written communications with the applicant. 

6. Ms Yu’s account of dates and events differed in several respects from that of the applicant, although some matters are not in dispute.  Counsel for the applicant submitted that the evidence of the applicant should be preferred to that of Ms Yu and to that of Ms Zammit.  In particular, counsel for the applicant contended that no weight should be given to Ms Yu’s affidavit evidence because she appeared to have no independent recollection of the events surrounding the applicant’s case and she acknowledged that her evidence was based on references to her “file notes”.  These notes were said to be at worst a concoction for the hearing and at best not such as to be reliable evidence or a contemporaneous record of events they purported to record.  On either view it was submitted that the court should not accept Ms Yu’s evidence where it conflicted with the evidence of the applicant and that no weight should be given to Ms Yu’s affidavit as her recollection was based entirely on the file notes. 

7. Counsel for the first respondent conceded that there were significant contests as to critical events, but took issue with the applicant’s submissions in relation to Ms Yu’s evidence.  The first respondent also contended that the applicant’s evidence as to key events must be called into question for reasons discussed below. 

8. As the first respondent submitted, in a case such as this, having regard to the conflict in evidence and the considerable time that has passed since the events in question, the court should “reason to [its] conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”.  (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]) rather than on the basis of an assessment of the credibility of the witnesses.

9. However, in light of the significant conflicts in evidence addressed at length in the submissions for the parties it is necessary to say something about the credibility of the witnesses. 

10. The applicant submitted that a number of factors indicated that Ms Yu’s evidence was not reliable.  Ms Yu, who had legal representation at the time she swore her affidavit on 8 July 2009 in response to the application and the applicant’s allegations in her affidavit of 12 November 2008, stated that in making her affidavit she had relied upon her copy of the applicant’s file including file notes (with an English translation) that were said to be attached to her affidavit.  While a Chinese language annexure identified by Ms Yu as her file notes was attached to her affidavit, no English translation was attached.  There is, however, an English translation of the “file notes” annexed to the affidavit of Ms Harvey, the solicitor for the applicant.  No issue is taken with the accuracy of this translation. 

11. Ms Yu’s affidavit evidence was that while she could recall meeting the applicant and acting for her in relation to her protection visa application, she had only a limited recollection of the details of any particular conversations with the applicant and she had relied on her file notes where necessary.  In cross-examination she claimed that the Chinese language notes annexed to her affidavit were contemporaneous notes prepared by her of her discussion and significant communications with the applicant.  Her evidence was that during the period of the applicant’s matter (January 2003 – March 2004) it was her normal practice to handwrite notes shortly after the event.  She agreed that the statements in her affidavit were based on her file notes. 

12. Counsel for the applicant pointed to the fact that the solicitors for the applicant had requested a “complete copy of your file regarding [the applicant]”from Ms Yu by letter of 3 November 2008.  Subsequently an authority from the applicant was provided to Ms Yu, together with a direction to Ms Yu to release to Landers & Rogers the applicant’s immigration file, including the “entire file, including correspondence, documents, applications, file notes, hearing tapes and any other records”.  

13. On 10 November 2008 Ms Yu provided what she described as the applicant’s “materials in relation to her protection application” but these “materials” did not include her file notes.  Nor did the material provided in response to this request include a copy of any Chinese language statement by the applicant (which, in cross-examination Ms Yu said she usually returned to an applicant), the Chinese language document annexed to Ms Yu’s affidavit that is said to be a re-translation of the English language statutory declaration sworn by the applicant in connection with her protection visa application or copies of any letters written by Ms Yu in connection with the application.  Copies of the cassette tapes of the applicant’s Tribunal hearing were provided to the applicant’s solicitors by Ms Yu. 

14. Ms Yu conceded that she had not provided the Chinese file notes in response to this request.  Her various explanations in cross-examination were that she just “roughly read” the letter (transcript p.127), that she just thought the letter asked for a copy of the file and that she hesitated because “they” did not understand Chinese so she did not copy the Chinese (transcript p.129).  She claimed that when she was provided with authorisation from the applicant she thought “Oh, client wants copy” and “I thought Chinese probably don’t want to send – maybe not necessary.  That’s why I didn’t copy Chinese”.  (transcript p.127) 

15. It appears that Ms Yu was not made aware of the nature of the allegations about her conduct in these proceedings until a letter from the applicant’s solicitors dated 2 April 2009 which advised her that she would need to attend the hearing if she wished to be heard on these issues. 

16. On 22 May 2009 the solicitors for the first respondent caused a subpoena to be issued seeking production of the applicant’s file from Ms Yu.  In response, on 4 June 2009 Ms Yu produced for the first time the handwritten Chinese language file notes.  In cross-examination she claimed that after she received the subpoena she realised she had to provide the Chinese file notes.  She could not explain what it was about the subpoena that made her come to this realisation.  In addition, Ms Yu produced for the first time in answer to the subpoena the Chinese language document she claimed in cross-examination was a re-translation of the English language statutory declaration.  She claimed it was her practice to provide such re-translations to applicants to enable them to check the correctness of the English versions of their statements. 

1. Counsel for the applicant submitted that the evidence as to the provenance of the “file notes” was highly doubtful.  Reference was made to the fact that they were not originally produced by Ms Yu in response to a clear request for the “entire file” made by Lander & Rogers on the applicant’s behalf.  It was said that there was no convincing explanation advanced by Ms Yu for the failure to produce the file notes on that occasion.  It was pointed out that the file notes were produced only after a letter outlining the allegations about her was sent to Ms Yu, notwithstanding that Ms Yu claimed that these notes were always with the applicant’s file. 

2. Counsel for the applicant also submitted that regard should be had to the fact that the handwriting on the file notes was apparently all in the same pen and on the same type of paper.  The notes were said by Ms Yu to have been made over an extended period of time.  Ms Yu’s evidence in cross-examination was that each note was put in a plastic sleeve in the applicant’s file after it was written.  Ms Yu’s explanation about, “same paper, same ink” was that this was her “style.  I need to make case, you know, the file neatly.  That’s what – you know.  I don’t want the file make mess.  I like neatly.” (transcript p.236).  This was said not to be a convincing explanation.  It is notable that “notes” for several dates appear on each page of the file notes. 

3. The applicant also submitted that insofar as Ms Yu claimed that she had a uniform procedure of creating contemporaneous file notes of this nature during the period January 2003 to March 2004, this could not be believed.  It was submitted that Ms Yu’s evidence was inconsistent in relation to the system she maintained for keeping file notes of communications between January 2003 and March 2004.  Initially she had said that her practice was to take down file notes in handwriting and to write down all important communications as “normal practice” and that she would put those notes “on the file” (although I note that she also said she could not remember exactly what happened at that time).  She also said that she did not keep file notes on the computer during this period.  Subsequently she departed from this evidence and acknowledged that her normal system of recording communications had changed from computer records to file notes after June 2003 but, when pressed she could not remember when or how it had changed.  The applicant submitted that the explanation that handwritten file notes were kept as part of Ms Yu’s “normal practice” during the entire period should not be accepted. 

4. It was also submitted that subpoenaed telephone records in evidence before the court were not consistent with Ms Yu’s entries in the file notes and that this also indicated that the file notes were not reliable.  Several inconsistencies were relied on by the applicant.  Included in parenthesis are descriptions of the applicant’s claims relevant to the dates in question. 

   i.For 1 April 2003 there was no record of a telephone call between Ms Yu and the applicant in her file notes, but the telephone records included an 8 second phone call from Ms Yu to the applicant.  (The applicant did not claim that Ms Yu contacted by telephone on that day but gave evidence of a telephone call with Ms Yu in late March 2003 in which she was told her application had been refused and to come to the office to talk about it). 

   ii. For 2 April 2003 an entry in the telephone records revealed a telephone call of 16 seconds, whereas in her file notes Ms Yu stated that she gave the applicant an explanation of the delegate’s decision refusing the applicant’s protection visa application on that day.  (According to the applicant a “few days” after she received the late March 2003 phone call from Ms Yu she went to her office to discuss her case). 

   iii.For 4 April 2003 Ms Yu’s file notes did not record a telephone call to the applicant, but the telephone records included a telephone call to the applicant (of 16 seconds).  (There is no claim by the applicant about such a call).  This and the first “inconsistency” are not of great significance as they simply suggest additional brief telephone contact between Ms Yu and the applicant.  It might also be noted that the subpoenaed telephone records include a telephone call to the applicant on 7 April 2003 lasting 21 seconds that is not recorded in the file notes. 

   iv.For 8 June 2003 there was no record in the subpoenaed records of any phone call from the applicant to Ms Yu, whereas her file notes recorded that the “applicant enquired the progress of the RRT review application”.  The file notes do not record whether this was a telephone enquiry.  (The applicant’s evidence is that she went to Ms Yu’s office in late May or early June 2003 to advise of a change of address and to enquire about progress of her case). 

   v.For 31 October 2003 Ms Yu’s file notes recorded a telephone call to the applicant to advise of the Tribunal hearing and to arrange a meeting.  No such call was recorded in the telephone records.  A call was recorded in the telephone records as being made on 30 October 2003.  There was no corresponding entry on that date in the file notes.  Ms Yu accepted that the file notes may be incorrect in this respect.  (The applicant’s evidence is however that Ms Yu telephoned her in early November 2003 and told her she had an “interview” and that the applicant said she would come to the office to discuss it). 

   v.There was also said to be a difference between the file notes and the telephone records for 10 December 2003.  The file notes recorded: “notified the applicant that the RRT hearing had been rescheduled, 10:30am 03/02/2004”.  However the subpoenaed telephone records do not contain any calls to or from the applicant’s mobile number on that day.  (The applicant’s evidence is that in December 2003 she received a telephone call from Ms Yu advising her that the “interview” had been rescheduled and she should come to the office a few days before the new date to discuss it). 

   vi.There is no record in the subpoenaed records of a telephone call on 12 March 2004, on which date Ms Yu’s file notes recorded a telephone call in which the applicant was informed of the Tribunal decision.  (The applicant’s evidence is that after about 11 February 2004 she received no further telephone calls from Ms Yu). 

5. Counsel for the applicant also suggested that it was relevant to the reliability of the file notes and the weight to be given to Ms Yu’s evidence, that there were no copies of any correspondence from Ms Yu in the material provided to the applicant’s solicitors or produced in answer to the subpoena, even though the file notes recorded that Ms Yu sent a copy of the Tribunal decision to the applicant on 12 March 2004. 

6. Ms Yu’s evidence was that her recollection of the dates of making or receiving telephone calls from the applicant was based on her file notes.  She conceded that the telephone records produced in answer to subpoenas did not contain entries for all of the calls included in the file notes.  Ms Yu also agreed that there was no copy of any letter in the file indicating that the Tribunal decision record had been sent to the applicant as recorded in the file notes.

7. Ms Yu’s explanation for the discrepancies between the allegedly contemporaneous file notes and the telephone records was that she might have recorded the wrong date or she might not have recorded something if it was not relevant to the protection visa application, but that she could not remember.  The applicant submitted that this explanation was unconvincing.  She also claimed that she may have used other telephone lines to make calls recorded in her file notes. 

8. In short, the applicant submitted that the remarkable uniformity of the style, ink and paper of the file notes said to have been produced over an 18 month period, the absence of corroboration in subpoenaed telephone records, the unsatisfactory explanation for the failure to produce the notes when first requested and the inconsistency in Ms Yu’s evidence about her note keeping practices at the relevant time meant that the Chinese file notes should be regarded as not being reliable evidence and that Ms Yu’s evidence should be given no weight as it was based on those notes rather than on recollection. 

9. The first respondent submitted that there was a difference between a request to provide something and a subpoena for production and that Ms Yu’s explanation for not producing the file notes to the applicant’s solicitors (that she thought that the solicitors were only seeking to obtain documents in English) was entirely credible.  I disagree.  It was abundantly clear that the request was for the “entire file, including … file notes and any other records”.  Ms Yu’s explanation that she “thought” the Chinese file notes were “maybe not necessary” is not persuasive. 

10. Ms Yu’s evidence about her note keeping practices during the period that she acted for the applicant was unclear and changed during cross-examination, although this must be seen in light of the time that has passed since the events in question and her ultimate evidence that she was not, during the relevant period, keeping records only on the computer.  It does raise doubts about her claims about a consistent “usual practice”. 

11. There is a notable uniformity in the handwritten notes, although in the absence of expert evidence I cannot be satisfied that the consistent “appearance” of the file notes is necessarily incompatible with Ms Yu’s evidence that a note was recorded on each occasion over an 18 month period.  However, as “notes” for more than one date appear on each page of the file notes, it is implausible that each “note” was recorded on a note pad that was not kept in the file and then placed in a plastic sleeve in the file after each communication as Ms Yu claimed. 

12. The subpoenaed telephone records cover the dates referred to in Ms Yu’s file notes.  There are some issues raised by these records although this evidence does not exclude the possibility that Ms Yu made calls to the applicant from telephones other than those for which records were before the court.  The subpoena addressed to “The Telstra Corporation” requested production of records of all calls generated for Ms Yu’s office landline telephone number and mobile number, or any number registered to the same entity or individual as those telephone numbers, or any number in use by Priscilla International Pty Ltd to the applicant’s mobile number between 1 December 2002 and 30 March 2004; and records of calls from that mobile phone number to the office landline on specified dates.The subpoena addressed to “Vodafone Network Pty Ltd” requested production of records of all calls generated for Ms Yu’s mobile phone number, or any number registered to the same entity or individual as that number and all other numbers in use by Priscilla Yu (also known as Genlin Gen Lin Yu or Priscilla Genlin Yu and Genlin Yu) to the applicant’s mobile number between 1 December 2002 and 30 March 2004; and records of calls to Ms Yu’s mobile phone number on specified dates but the documents to be produced under the Vodafone subpoena were subsequently limited to those relating to specified periods that included the dates on which the file notes recorded telephone contact with the applicant.Ms Yu suggested in cross-examination that she may call a client not only from her office or mobile phone, but also from her office fax phone or her husband’s mobile phone.  It is the case that both the applicant and Ms Yu gave evidence that Ms Yu had telephoned the applicant in March 2003 notwithstanding that there was no record of such a call in the subpoenaed material before the court.  The subpoenaed telephone records are not conclusive but do reveal Ms Yu did not call the applicant from her office or mobile phone on some of the dates recorded in the file notes.  The notion that Ms Yu gave an explanation of the delegate’s decision in a 16 second telephone conversation on 2 April 2003 is not plausible.  Her explanation for the discrepancies between the file notes and the telephone records was unconvincing and acknowledged the possibility that the file notes may not be correct. 

13. In cross-examination Ms Yu was asked about the fact that there was no record of the applicant’s original Chinese statement (or of any request for return of that statement) in the applicant’s file and no copies of letters that she claimed had been sent to the applicant in relation to matters such as the notification of lodgement of her application and that the protection visa application had been refused.  Ms Yu claimed that her “practice” was to return the original statement to an applicant after preparation and translation of the document into English and then back into Chinese.  The absence of copies of correspondence was not satisfactorily explained. 

14. Contrary to the file notes, I am not satisfied that Ms Yu sent written communications to the applicant as claimed in those notes in the absence of evidence of copies of such correspondence or of an explanation for the absence of such correspondence from the material produced to the applicant’s solicitors or in answer to the first respondent’s subpoena. 

15. As counsel for the applicant submitted, even making allowance for Ms Yu’s admitted lack of direct recollection and the time that has passed since the events in question, Ms Yu was an unimpressive and at times evasive witness who asked rhetorical questions and was cagey in her evidence.  She failed to admit things that one would expect to be capable of easy and ready admission.  Ms Yu also read into her file notes things that in cross-examination she said had happened but which were not detailed in those file notes. 

16. Individually these concerns are not such as to warrant rejecting the reliability of the file notes.  However taken together, the late production of the file notes, their form and content and Ms Yu’s explanations in that respect, the absence of copies of any correspondence, the inconsistency with the subpoenaed telephone records for Ms Yu’s office and mobile phone numbers as well as Ms Yu’s less than satisfactory explanations in cross-examination for implausibilities or inconsistencies are such that I cannot be satisfied that the file notes are a reliable contemporaneous record of all communications between Ms Yu and the applicant. 

17. Insofar as Ms Yu’s affidavit evidence was, on her own account, said to be based on the file notes and having regard to the other credibility concerns about Ms Yu’s evidence, I am not satisfied that weight should be given to such evidence in determining whether the particulars to ground 2 in the application are made out, except insofar as it is consistent with the applicant’s evidence or with objectively established facts. 

18. However, shortcomings in Ms Yu’s record-keeping practices do not amount to or establish fraud in the sense contended for in ground 2.  It is not in dispute that Ms Yu had numerous meetings and telephone calls with the applicant.  She prepared and lodged a protection visa application and a statutory declaration containing claims from which the applicant does not resile.  There is no suggestion that the claims made were not those of the applicant.  On the applicant’s evidence, Ms Yu informed her that her application for a protection visa was refused.  Ms Yu prepared and lodged a review application and a further statutory declaration for the applicant.  The applicant was advised of the Tribunal hearing (whether or not it was described in those terms) and of its postponement and of the need to attend.  The applicant attended the hearing. 

19. Even though I am of the view that to the extent that Ms Yu’s affidavit evidence is based on her file notes it ought to be given no weight except insofar as it is consistent with the applicant’s evidence or with objectively established facts, the issue is whether the applicant has on her evidence established fraud in the requisite sense.  There are, moreover, a number of issues in relation to the credibility of aspects of the applicant’s evidence. 

20. Counsel for the applicant contended that the applicant appeared to have good actual recollection of events and remembered detail, notwithstanding the considerable time that had passed since the events in question, although it was conceded that there was some difficulty with the applicant giving long answers in cross-examination which were not broken up.  While the applicant’s evidence was said to have remained substantially consistent (and that is so compared to the evidence of Ms Yu) this was not always the case.  There was a notable exception in relation to the source of the claimed instruction to lie to the Tribunal that is discussed in relation to particular (h).  If it were simply a matter of preferring the evidence of one witness over another where it was in conflict I would prefer the evidence of the applicant, however concerns about the reliability of Ms Yu’s evidence do not independently mean that the applicant’s evidence should necessarily be accepted in all respects. 

21. Concerns about the credibility of particular aspects of the applicant’s evidence are discussed below, but more generally, the applicant’s evidence as to key events has to be seen in light of the fact that in the period between the Tribunal hearing on 3 February 2004 and when she was detained on 5 March 2007 on her account she did nothing to find out what had happened to her protection visa application. 

22. The applicant’s evidence was that she was unaware of the decision of the Tribunal until she was detained in Villawood Detention Centre in March 2007.  She claimed that soon after the Tribunal hearing on 3 February 2004 and before the handing down of the decision she moved from the Campsie address that had been notified to the Tribunal to a Croydon address.  She conceded that she made no arrangements for the forwarding of mail to her new address.  She claimed that she told Ms Yu of her change of address in February 2004 (about 7 to 10 days after the Tribunal hearing).  The applicant claimed that after this she “waited to hear further news from Ms Yu” and that she “expected Ms Yu to phone [her] when she had news”.  She claimed that she did not contact Ms Yu “because previously she had told me my case could take a long time and also because the last few times I had contacted Ms Yu she had been quite rude and abrupt to me on the phone, therefore I decided to wait for Ms Yu to phone me with news”. 

23. The applicant claimed in her affidavit that she “never had any further communication” from her agent or anyone else about the “outcome of [her] interview” and never received a copy of the Tribunal decision from the Tribunal or from Ms Yu. 

24. The applicant also referred to what she described as a major health crisis and emergency surgery in January – February 2005, after which time she located a solicitor to advise her about proceedings against a doctor whom she believed had been negligent. 

25. The applicant claimed that after she returned to work in June 2005 she “thought about” her case.  However she took no action, claiming she had been afraid to contact Ms Yu because she “did not know what [her] status was in [Australia] and did not know if it was safe for [her] to even contact [her] Agent”. 

26. The applicant claimed that in that period she only spoke to Ms Yu about the hearing tapes.  In circumstances where the applicant claimed that she had fallen out with Ms Yu over Ms Yu’s failure to return the hearing tapes, her explanation that she was waiting for Ms Yu’s telephone call is inherently implausible.  The applicant never tried to contact Ms Yu to find the outcome of the review application.  Nor did she contact the Tribunal or even make enquiries of her former landlord, whose address she had used as a contact address although she did not live there.  She failed to make any such enquiries notwithstanding that the Tribunal member had told her at the hearing on 3 February 2004 that she was going to make a decision within about 8 weeks and would be sending her a copy in the post. 

1. As discussed above, I am satisfied that Ms Yu did not read and translate into Chinese every question and answer in the protection visa application forms for the applicant.  She had no actual recollection in this respect.  Her evidence in cross-examination was evasive.  She was unable even to estimate the time it took to read a protection visa application form, notwithstanding that she claimed that this was her “usual practice”. 

2. The applicant did not address in her affidavit the specific issue of whether the English language version of her statement (the statutory declaration) was in fact re-translated into Chinese before she signed it, beyond her general evidence that Ms Yu did not translate any of the forms she signed before she asked her to sign them. 

3. However in her affidavit Ms Yu attested that on 12 January 2003 she “explained the contents of the [applicant’s] statement to her sentence by sentence” and that she also provided the applicant with a (written) Chinese translation of the statement.  Annexed to Ms Yu’s affidavit is a document in Chinese that she said was the translation back into Chinese of the English version of the applicant’s statement (the statutory declaration).  In cross-examination she said that she gave such re-translations to applicants to check the accuracy of the way the claims were presented in English. 

4. This document, like the file notes, was not produced by Ms Yu in response to the initial request by the applicant’s solicitor for the entire file. 

5. In cross-examination the applicant denied that Ms Yu explained the statutory declaration to her sentence by sentence or that she gave her a copy of the statutory declaration written in her own language.  She later said that no-one had ever translated it to her in her own language. 

6. When the applicant was shown the document that Ms Yu said was the Chinese translation of the statutory declaration she gave to the applicant in January 2003, the applicant first said that it was not her handwriting, then said it was the material she wrote down then gave to Ms Yu and then said she had not seen the document before and that Ms Yu had not given it to her in January 2003. 

7. However in cross-examination the applicant conceded that Ms Yu did not ever “directly” tell her to lie to the Tribunal and also that everything she told the Tribunal was the truth. 

8. The first respondent submitted that as the applicant’s plain and unambiguous evidence was that she had told the Tribunal the truth and that Ms Yu had not directly told her to lie, on the evidence before it the court could not be satisfied that Ms Yu asked the applicant to tell the Tribunal anything other than the truth, or that the applicant told the Tribunal anything other than the truth in this respect. 

9. The first respondent also submitted that the “attempts to resurrect” this part of the applicant’s case in re-examination had failed.  This is a reference to the fact that in re-examination it was put to the applicant that there were three parts to her evidence that “It is not true to say that I gave her Chinese, she translated into English then translated English back to Chinese to [her]” and she was asked “Were all of these statements, or only some of these statements, untrue?”.  The applicant’s response was “All untrue”, notwithstanding that on her own case she accepted some of them. 

10. While I accept that there was no oral re-translation of the application and statutory declaration into Mandarin by Ms Yu before the applicant signed these documents, on the evidence before the court I am not satisfied that Ms Yu directly “instructed” the applicant to “lie” to the Tribunal.  Hence insofar as this particular alleges a direct instruction by Ms Yu that the applicant should lie to the Tribunal it is not made out. 

11. Insofar as it is intended to encompass the claimed advice by Ms Yu to the applicant as attested to in the applicant’s affidavit of 28 August 2009, I have considered whether it has been established that such conduct occurred or constituted fraud vitiating the decision or processes of the  Tribunal in the SZFDE sense. 

12. The applicant’s cross-examination of Ms Yu and submissions in relation to the “provenance” of documents focused on the “file notes”, although it was also submitted that the re-translation was not reliable as it was not provided in response to the applicant’s solicitor’s initial request for the entire file.  However, the applicant has consistently maintained that documents (including the statutory declaration) were not translated back into Chinese for her “before” she signed them.  Ms Yu’s evidence in this respect is not based on actual recollection, but on the file notes which I have found not to be a reliable contemporaneous record of the events recorded and on her “usual practice”.  Her evidence is not such as to satisfy me that she provided a line by line oral explanation of the English language version of the applicant’s statement or that she gave the applicant a written re-translation before the applicant signed the statutory declaration.  I prefer the applicant’s evidence in this respect.  It is unnecessary to determine whether Ms Yu subsequently gave the applicant a written re-translation into Chinese. 

13. Ms Yu’s denied that she gave the applicant the advice complained of, based on what she claimed was her practice.  She claimed that she had never asked a client to say that and that it was her practice never to tell a client to do this, but conceded that she could not remember what actually happened in relation to the applicant.  I do not give weight to Ms Yu’s evidence in this respect, given the absence of actual recollection and the fact that I have already rejected aspects of her claims about her usual practices.  I do, however, accept that as the applicant acknowledged, Ms Yu did tell her to tell the Tribunal the truth. 

14. It is for the applicant to satisfy the court that the conduct complained of occurred and that it amounted to fraud.  While the applicant consistently maintained that the documents were not re-translated into Chinese before she signed them, she prevaricated in response to questioning about the claimed advice, why she said “Okay” in response and why she told the Tribunal something if it was untrue.  Cross-examination was as follows:

    MR POTTS:  Your Honour pleases.  When she told you to tell the tribunal – I’m sorry.  Did she tell you to tell the tribunal that you’d provided to her a statement in Chinese?

    THE INTERPRETER:  Yes. 

    MR POTTS:  And you’d, in fact, done that, hadn’t you?

    THE INTERPRETER:  Yes.

    MR POTTS:  So there was no problem from your perspective in telling the tribunal that, because that was true, wasn’t it?

    THE INTERPRETER:  Yes, I gave all of the material to her. 

    MR POTTS:  And did she tell you to tell the tribunal that your agent had translated your applications and statements into English? Did she tell you that?

    THE INTERPRETER:  She told me, “At the interview, you say things this way.  You gave me Chinese, I translated it into English, then I translated from English to Chinese to you, then you sign.”  I just said that.

    MR POTTS:  And she had, in fact, translated things from Chinese into English for you, hadn’t she?

    THE INTERPRETER:  At the tribunal, the Member asked me how these came out.  I said, “I gave her Chinese, she put it into – translated into English, then translated into – from English to Chinese back to me.”  That’s how I told the tribunal. 

    MR POTTS:  Yes, and each one of those three things was true, wasn’t it?

    THE INTERPRETER:  I don’t understand. 

    MR POTTS:  She had, in fact, translated your Chinese material into English for you, hadn’t she? That was true?

    THE INTERPRETER:  No.  I didn’t know what was talking about.  One, she translated to you.  She didn’t say that. 

    MR POTTS:  I want to suggest to you that she’d, in fact, translated the statutory declaration she’d prepared for you back into Chinese and given it to you, hadn’t she?

    THE INTERPRETER:  Let me think about it.  She only said that these needed to be – you needed to affirm this.  Then you sign. 

    MR POTTS:  Do you regard what Ms Yu was suggesting that you tell the tribunal as untrue?

    THE INTERPRETER:  No, I – no.  That was untrue.  Back then I thought she was doing something good to me. 

    MR POTTS:  But you - - -

    THE INTERPRETER:  Then I just follow what she said. 

    MR POTTS:  But you regarded what she was asking you to do as requesting that you tell untruths to the tribunal, correct?

    THE INTERPRETER:  Now I knew it was.

    MR POTTS:  So you say you didn’t know when she suggested to you at that time you should tell these things to the tribunal they were untrue?

    THE INTERPRETER:  Because she said those, and everything, you know, in English.  I don’t --- didn’t understand.  Whatever she asked me to sign, I had to sign. 

    MR POTTS:  No, please.  When you were told these things by Ms Yu, in either late 2003 or early 2004, did you at that time think she was asking you to tell things to the tribunal that were untrue?

    THE INTERPRETER:  She just told me to go for interview.  And she also said, “Whatever they ask you, you just answer them.”

    MR POTTS:  Please listen to my question carefully, Madam Applicant.  Did you regard Ms Yu in telling you that if they asked you at the interview about your statement, you should say, “I gave my Chinese statement to the agent, and the agent translated my applications and statements into English, and translated them back again in Chinese before I signed it,” as Ms Yu making a request that you tell the tribunal something that you then believed was untrue?

    THE INTERPRETER:  Yes.

    MR POTTS:  Then why did you say, “Okay,” when she was asking you to tell the tribunal things were untrue and you understood that?

    THE INTERPRETER:  Because I did not know, I did not understand.  For example, if she English is like this, and then Chinese, I tell you this, this – even if she made mistake, how could I know?

    MR POTTS:  Did you tell Ms Yu you didn’t understand why you were being asked to tell things that were untrue to the tribunal?

    THE INTERPRETER:  Because I didn’t understand.  I totally relied on her. 

    MR POTTS:  So you didn’t tell her that you didn’t understand, is that right?

    THE INTERPRETER:  At that time, I was in a hurry, and in my mind that she was my agent, I did whatever my agent requested. 

    MR POTTS:  So you would have done anything Ms Yu told you to do, would you?

    THE INTERPRETER:  Yes.

    MR POTTS:  Did you think it was a good thing, that you were being asked to lie to the Refugee Review Tribunal?

    THE INTERPRETER:  Of course not good thing. 

    MR POTTS:  But you didn’t raise any query with Ms Yu about it? You just said, “Okay.”

    THE INTERPRETER:  I just arrived Australia, didn’t understand many things.  Totally relied on Ms Yu.  Whatever she asked I just did. 

15. The applicant eventually conceded that she regarded what she claimed she was told by Ms Yu as untrue at that time and not just that she misunderstood what she was told.  This evidence may reflect a concern about making an admission about the applicant’s own possible complicity in dishonesty.  However the applicant’s oral evidence on this issue and about whether she told the truth to the Tribunal was not entirely consistent.  In her affidavit she conceded that she was not honest with the Tribunal, but initially she seemed not to want to admit this in cross-examination.  It is also of concern that the applicant seemed unwilling in re-examination to make any concession about translation of her statement into English, notwithstanding that, on her own case, this occurred. 

16. Of direct concern is the inconsistency in the applicant’s evidence about the source of the claimed “instruction” about what she should tell the Tribunal. 

17. In her original affidavit of 12 November 2008 the applicant did not distinguish between conversations with Mr Huang and those with Ms Yu.  Her evidence (in paragraph 26 of that affidavit) about the meeting in late January or early February 2004 was that she had a brief meeting with her “agent” during which words to the following effect were spoken:

    Agent: “I am too busy and I cannot go with you to the interview, so I will give you a refund of $200.”

    [Applicant]:           “How will I get to the interview place since you said you would go with me?”

    Agent:      “Come to my office on the day of the interview and I - will ask somebody to take you to the interview place.”

    “By the way, if they ask you at the interview about your statement you should say that, “I gave my Chinese statement to the agent and the agent translated my applications and statements into English and translated them back to me gain in Chinese before I signed it.””

    [Applicant]:           “Okay.”

18. This was the only reference in that affidavit to the “advice” in question and there was no suggestion of any other conversation on that day. 

19. However, in her affidavit of clarification of 3 August 2009 the applicant stated that references to “my agent” in her earlier affidavit were to Ms Yu and to Mr Huang and that she had not been aware that it was important to distinguish between the particular people.  She explained that some of the conversations deposed to regarding her agent were not with Ms Yu but were with Mr Huang.  She referred to particular conversations and, relevantly, stated that paragraph 26 in her affidavit of 12 November 2008 (set out above) deposed to “a meeting and conversation which involved Harry Huang and not Priscilla Yu”.  In other words at that stage her claim was that it was Mr Huang who told her to say that her statement was re-translated into Chinese and she did not claim that Ms Yu gave her this “instruction” or advice. 

20. In other words, initially the “advice” was said to have come from her agent and then from Mr Huang (rather than from Ms Yu).  As set out above, in her final affidavit filed on 28 August 2009 the applicant did not claim that Mr Huang offered any such advice to her, but rather that Ms Yu was the source of the “instruction” in a separate conversation on the day in question. 

21. However in cross-examination the following exchange occurred in response to the suggestion from counsel for the first respondent “that at no time before 3 February 2004 did Ms Yu ever tell you to lie to the Refugee Review Tribunal”:

    APPLICANT: Initially they didn’t say anything bad at all.  On the last occasion, when I saw them before the interview, and they say they could not accompany to the interview.  Then Mr Huang didn’t say anything in the beginning, and all he said: “You just say things based on the things you written down.  Tomorrow you will go there.  They ask you how you have this prepared.  Just tell them you wrote Chinese to me.  We prepared English based on your Chinese.  Then we put our English back to Chinese to you.  You just tell them that.”

    MR POTTS: I want to suggest to you that if Mr Huang did, in fact, tell you that, that all those things he was asking you to tell the tribunal were, in fact, true, weren’t they?

    APPLICANT: Yes, Mr Huang said that, how they ask you, how to answer.  And before I left the office, Ms Yu was on the door area of the office.  Ms Yu said that: “If they ask you about this material, then tell them that you prepared it, and just tell them that you give the Chinese, I translated into English, then I translated English back into Chinese.  After that, you signed.”  I said, “Okay.”

    MR POTTS: Why did you say, “Okay”?

    APPLICANT: Because she was doing me good.  I just followed what she said, and she said she put it into English then after that I signed.

    MR POTTS: I want to suggest to you that if she did tell you to say those things, the things she was telling you to say were, in fact, all true.  Do you agree or disagree?

    APPLICANT: Yes, she said just tell the truth.  I do agree. 

22. Notwithstanding that the applicant had two opportunities to amend her original affidavit, this was the first occasion on which she suggested that both Mr Huang and Ms Yu had given her such advice. 

23. The existence of alleged “advice” and whether it was given by Ms Yu (who is the person whose conduct is in issue under this ground) is central to the applicant’s case.  In a notice of particulars filed on 28 August 2009 the applicant particularised the words “migration agent” in paragraph 2 of the application as “Priscilla Yu; and/or…Priscilla International Co Pty Ltd by its employee or agent Priscilla Yu”.  Under ground 2 no reliance is placed on any allegation of fraudulent conduct on the part of Mr Huang. 

24. Given the inconsistencies in the applicant’s evidence in relation to the source of the advice allegedly provided in February 2004 and the other concerns about her evidence considered above, I am not satisfied to the standard required that Ms Yu gave the applicant the advice attested to in the applicant’s affidavit of 28 August 2009.  On this basis particular (h) of ground 2 is not made out. 

25. In any event, even if Ms Yu had given the applicant the “advice” in question, fraud giving rise to jurisdictional error has not been established because it has not been shown that any such advice had the consequence of stultifying the legislative scheme to afford natural justice to the applicant. 

26. If Ms Yu had given such advice, it would have been dishonest as there had not been a re-translation before the applicant signed her statement.  On this basis it would have been advice to tell the Tribunal that something had happened which had not in fact happened which was acted on by the applicant in what she said to the Tribunal. 

27. The applicant told the Tribunal that the documents had been re-translated into Chinese before she signed them.  On her evidence, she knew that this had not occurred and lied to the Tribunal, despite the fact that she had sworn a promise to tell the truth to the Tribunal and understood the meaning of such promise or affirmation.  The applicant’s evidence was that she trusted Ms Yu and followed her advice. 

28. If Ms Yu had given such advice to the applicant an issue would therefore arise as to whether by lying to the Tribunal the applicant was rendered complicit in any attempt to deceive the Tribunal as to the extent of the assistance provided in preparation of the protection visa application. (see SZLHP v Minister for Immigration and Citizenship and Another (2008) 172 FCR 170; [2008] FCAFC 152). This possibility was not addressed in submissions. I have not considered it further because, even if the conduct in question did occur and constituted fraud on the part of Ms Yu or Priscilla International Co Pty Ltd (and the applicant was not regarded as complicit), it has not been established that such conduct had any operative or causative effect stultifying the Tribunal’s processes or decision.

29. Even if the failure to re-translate a statutory declaration raised an issue about whether Ms Yu had met her obligations under the Code of Conduct, the Tribunal is not the regulatory or disciplinary body for migration agents.  While the possibility that a migration agent might be “censured” by the Tribunal might provide a motivation for dishonest advice, that would not of itself mean that such fraud stultified the processes or decision of the Tribunal in relation to review of an application for a protection visa. 

30. The applicant’s statement to the Tribunal, based on the claimed advice, has not been shown to have had the effect of converting any inadequacies in the preparation of the application and the representation and conduct by the migration agent into apparent deficiencies and inconsistencies in the applicant’s evidence as the applicant contended.  Nor has it been shown that the alleged conduct affected the decision of the Tribunal, whether by giving rise to material inconsistencies or otherwise. 

31. In particular, there is no suggestion for the applicant that anything in the English language statutory declaration provided to the Department (or that provided to the Tribunal) was incomplete, untrue or inconsistent with her original Chinese statement.  In other words, even if Ms Yu told the applicant to tell the Tribunal that she had retranslated the statement and this was regarded as an instruction to lie to the Tribunal made fraudulently, it has not been established that this resulted in deficiencies and inconsistencies in the evidence of the applicant.  The general contentions to that effect are not made out. 

1. As to the Tribunal processes, at the hearing the Tribunal was concerned about whether the applicant was aware of and accepted the truth of her claims as presented in her application and, in particular, her statutory declaration.  As indicated, no issue has been taken with the accuracy of the English version of the applicant’s claims as presented in the statutory declaration. 

2. It has not been established that the applicant’s invitation to the hearing was not a meaningful invitation.  She attended the hearing and there is nothing in the conduct of the hearing or the decision to establish that her exercise of the right to be heard was compromised through no fault of her own as considered by French J as he then was in Minister v SZFDE at [101] whose reasoning was referred to in submissions for the applicant). In particular, the Tribunal was not as a result of the conduct in question “misled on a question which [was] of significance to the outcome of the hearing” (ibid at [102]).  There is no procedural unfairness established. 

3. The question of whether or not the application and statutory declaration were translated for the applicant by her agent was not of significance in the Tribunal reasons for decision.  The alleged fraud has not been shown to have had a material effect in relation to the decision.  No issue was taken by the Tribunal in its findings and reasons as to the completeness of the applicant’s responses in the protection visa application.  As discussed above, while the Tribunal raised the absence of reference to the claimed detentions in the protection visa application form at the hearing, it made no reference to this in its findings and reasons but gave reasons for rejecting the claimed second detention and events thereafter.  The applicant’s assertion that the improper completion of the form contributed to the Tribunal’s failure to accept that the applicant was detained in 2002 is not made out.  The decision making process was not distorted by fraud “in a way that induced or affected the decision” (ibid at [122]). 

4. Hence it has not been established that there was any causative connection between any such advice and the Tribunal being “disabled … from the true discharge of its imperative statutory functions with respect to the conduct of the review” (see Jalagam at [42]). As no operative or causative effect stultifying the Tribunal’s processes or its decision is established even if the alleged fraudulent conduct did occur it has not been shown to have had any effect on the Tribunal’s procedures or the ultimate decision made by the Tribunal.

Conclusion in relation to ground 2

1. As no fraud on the part of Ms Yu or Priscilla International Co Pty Ltd by its employee or agent Priscilla Yu has been made out it is not necessary to consider the “cumulative” effect of the conduct complained of by the applicant.  Concerns about claimed deficiencies in the representation provided by Ms Yu, addressed at length in the submissions for the applicant, do not constitute fraud in the sense considered in SZFDE such as to give rise to jurisdictional error.  Even if Ms Yu had failed to comply with the Code of Conduct applicable to migration agents, any such non-compliance would not of itself constitute fraud vitiating the Tribunal decision or processes in the manner contended for by the applicant. 

2. Jurisdictional error has not been established on the basis contended for in ground 2 of the application.  It is therefore unnecessary to consider whether the applicant’s delay in bringing judicial review proceedings should in any event lead to the court declining to grant relief in the exercise of its discretion.  The application should be dismissed. 

I certify that the preceding two-hundred and ninety-eight (298) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 June 2010