SZNDS v Minister for Immigration - [2009] FMCA 220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNDS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 220

MIGRATION – Review of the decision of the Refugee Review Tribunal – impermissible merits review – no denial of procedural fairness – no failure to give applicant the opportunity to address determinative issues – no breach of the procedural code – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 425, 424A, 65, 36(2); Division 4 of Part 7

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751
SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693
VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264
QAAC v Refugee Review Tribunal [2005] FCAFC 92
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Abebe v The Commonwealth (1999) 197 CLR 510
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
SZGZH v Minister for Immigration and Citizenship [2007] FCA 486

Applicant:

SZNDS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 83 of 2009

Judgment of:

Nicholls FM

Hearing date:

17 March 2009

Date of Last Submission:

17 March 2009

Delivered at:

Sydney

Delivered on:

24 March 2009

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

In person

Counsel for the Respondents:

Mr Y Shariff

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 13 January 2009 is dismissed.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 83 of 2009

SZNDS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 13 January 2009 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 December 2008 which affirmed the decision of a delegate of the first respondent to refuse a protection visit to the applicant.

Background

The first respondent has put two bundles of relevant documents before the Court (the Court Book (“CB”) and the Supplementary Court Book (“SCB”)) from which the following background may be ascertained.
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 16 March 2008 on a student guardian visa. He applied for a protection visa on 29 April 2008 (CB 1 to CB 34). This application was refused by a delegate of the Minister on 1 August 2008 (CB 45 to CB 53). He applied for review by the Tribunal on 3 September 2008 (CB 57 to CB 60).

Claims to Protection

The applicant claimed to fear persecution in China on the grounds of political opinion, or imputed political opinion. He claimed to have been a printer in China and to have made complaints to the Public Security Bureau (PSB) about his employer (a construction company some distance from his home district) following the ill-treatment and death of his mentor. He claimed to have been subsequently arrested, detained and beaten. The applicant also claimed that following his release he assisted in the distribution of leaflets critical of local county officials and alleging corruption on their part. As a result he claimed to have been regarded as “anti-government”. He feared persecution on this basis.

The Tribunal

The applicant appeared before the Tribunal at a hearing on 14 October 2008. He was assisted by an interpreter in the Mandarin language. The applicant’s migration representative did not attend the hearing (CB 79). The Tribunal’s account of what occurred is the only account before the Court (CB 105.4 to CB 108.6).
The Tribunal twice wrote to the applicant pursuant to s.424A of the Act – 3 November 2008 (CB 83 to CB 84) and 26 November 2008 (CB 89 to CB 90). The applicant’s responses, through his migration agent, are reproduced at CB 85 to CB 87 and CB 91 to CB 94.
The Tribunal found the applicant’s claim that he had been arrested by the PSB because it regarded him as a dangerous person who posed a threat to the government, arising out of an industrial dispute with a construction company, to lack plausibility (CB 112.8).
As it did not accept this aspect of his claims, it also did not accept that he had been detained, or that he had met a person who informed him of government corruption, or that he had engaged in anti-government activities or that he had the stature to incite others in this regard (CB 113).
It also found that the applicant could not have signed the visa application forms which led to the grant of a student guardian visa (his son is studying in Australia) (see SCB 1 to SCB 17) on 27 September 2007, a date which he alleged to have been in detention.
It also found that it was not credible that the applicant would have engaged in anti-government activities upon release in circumstances where his original motivation for accepting employment with the construction company was so that he could fund his son’s overseas study, and at a time when he was waiting for a visa to depart China with his son. In the Tribunal’s view, the applicant would not have jeopardised his son’s opportunity to study overseas, and his opportunity to fly with him to Australia, for the sake of obtaining compensation for his deceased work colleague’s wife (CB 113).
In addition, it did not accept that the applicant would have been in a position to obtain information about others who had been arrested for distributing pamphlets, given that he had departed the area in which the arrests had allegedly occurred, and given that he claimed to have found out from “family”, but was unable to specify who exactly told him (CB 113).
The Tribunal found that his evidence in relation to his claim to have had his house searched by the PSB was vague and lacked detail. It also considered that it was not credible that the applicant would have been able to depart China if he was of interest to the PSB for anti-government activities.
In all, therefore, the Tribunal rejected the factual basis of the applicant’s claim to fear harm in China for a Refugees Convention reason and therefore affirmed the decision under review.

Application to the Court

In his application made on 13 January 2009, the applicant put forward the following grounds:
“1.RRT did not make fair decision. I am in risk to return to China. RRT failed to consider it.
2.Procedural Fairness has been denied. RRT did not use favourable cases to my application.”

Hearing before the Court

At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr Y Shariff of Counsel appeared for the respondent Minister. (The Court has before it written submissions from the first respondent drafted by Counsel.)
The applicant submitted that:
1.He wanted more time to bring evidence from China being documents addressing the “doubts” held by the Tribunal.
2.The Tribunal did not make any request for him to submit certificates or “proof”.
3.I understood this to be (from further comments by the applicant) a complaint that if the Tribunal had doubts about his claims it should have put these doubts to him and then given him an opportunity to provide “materials” to address those claims.
4.The Tribunal subsequently provided him with a “CD of the hearing”. He claimed that this was “not put into his language” and the “cassettes” were therefore meaningless because he could not understand their contents.

Ground One – Tribunal’s Decision “Not Fair”

The applicant complains that the Tribunal’s decision is not “fair”, and that the Tribunal failed to consider the “risk” of the applicant returning to China.
The applicant does not particularise why he says the Tribunal’s decision was unfair. If it is that he is simply aggrieved by the outcome then this amounts to a request for impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It is, as Mr Shariff submits, that this Court does not have jurisdiction to determine whether the Tribunal’s decision was “fair”.
The Tribunal is required to provide fairness in the procedures that it employs and applies (see further below). But as to the outcome, it is as the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [25] that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 (“Quin”) at 35-6 per Brennan J).
On what is before the Court the Tribunal’s findings were findings of fact within jurisdiction. These were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 at [67], per McHugh J). The Tribunal gave cogent reasons for its findings which were open to it on what was before it: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (“Kopalapillai”) at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 (“W148/00A”) at [64]-[69] per Tamberlin and Nicholson JJ.
The applicant also complains that the Tribunal failed to consider that he could be at risk if he were to return to China.
This complaint does not succeed. Any plain reading of the Tribunal’s decision record reveals this to be factually incorrect. The applicant’s claim to fear harm in China, or in his words, to be at risk, were set out in his protection visa application (see in particular CB 17 to CB 20), in his statutory declaration of 17 November 2008 (see CB 85 to CB 87) in a further statutory declaration of 10 December 2008 (see CB 91 to CB 94) and his evidence given to the Tribunal at the hearing. (The Tribunal’s account of what was said is at CB 105.4 to CB 108.6.)
There is nothing in the Tribunal’s decision record to indicate that it misunderstood those claims or failed to consider them. The Tribunal’s conclusion that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason was arrived at after an examination and consideration of all aspects of his claim to be at risk of he were to return to China.
In the circumstances I can only see the complaint that the Tribunal failed to consider the risks as an expression of grievance by the applicant that the Tribunal did not find his claims to be at risk to be credible. In all, ground one does not succeed.

Ground Two – Denial of Procedural Fairness

Without particulars, the applicant claims to have been denied “procedural fairness”.
This is a case to which s.422B of the Act applies making the provisions set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias) (see Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]- [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
I note written submissions from Counsel on this issue canvassing matters set out in that Division.
In acknowledging his application by letter dated 4 September 2008 the Tribunal set out the procedures by which the application would be reviewed (CB 62 to CB 64). Importantly, the applicant was given early notice of the opportunity to provide information to the Tribunal (CB 63).
Pursuant to s.425 of the Act, the applicant was invited to attend a hearing before the Tribunal by letter of 22 September 2008 (CB 66 to CB 67). He appeared before the Tribunal on 14 December 2008 and gave evidence (CB 73). (The Tribunal’s account of what occurred is set out in its decision record (see CB 105.4 to CB 108.6).)
In SZBEL the High Court set out the procedural fairness requirements pursuant to s.425 of the Act and Tribunal hearings. I note relevantly and in particular [33] to [40] and [44] and [47]-[48] of that judgment.
In the present case the applicant was invited to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal’s account of what occurred is not challenged by any evidence to the contrary.
Following the delegate’s decision the applicant would have been on notice of the need to present evidence to substantiate his claims (CB 50.4), the implausible nature of his claim to have engaged in the distribution of anti-government literature given his objective of facilitating his and his son’s departure from China (CB 51.2), that someone with the applicant’s claimed profile in China would have been monitored by the authorities, such as to make his claim that he obtained a passport and departed legally, inconsistent (CB 57.3 to CB 51.5)), and that given relevant independent country information he was not of adverse interest to the authorities (CB 52.5).
In addition, the Tribunal gave the applicant the opportunity at the hearing before it to set out the substratum of facts to his claims and specifically raised concerns about the circumstances of the applicant’s claimed involvement with anti-government activities (CB 107.8) and his being able to depart China when the PSB was said to have known about his activities (CB 108.5).
I agree with Mr Shariff that there was no failure by the Tribunal to give the applicant the opportunity to address the determinative issues in his case (see in particular SZBEL at [43]).
In seeking to fulfil its obligations pursuant to s.424A(1) of the Act, the Tribunal wrote two letters to the applicant, dated 3 and 26 November 2008 respectively (CB 83 and CB 89), dealing with discrepancies in his claims, discrepancies in his stated purpose for leaving China, the lack of clarity of detail in the form of his claimed anti-government activity and inconsistencies in information provided in his student guardian visa and his protection visa.
While some of this material may not have fallen within the understanding of the term “information” for the purposes of s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 (“SZBYR”) at [18] and the reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, per Finn and Stone JJ at [24]), there was no error in the Tribunal writing to the applicant and giving him the opportunity to comment.
Other information relied on by the Tribunal fell within exceptions to the obligation set out in s.424A(1):
1.The information contained in the protection visa application fell within s.424A(b)-(ba) (SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751, SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693). (Noting also that some of this information was the subject of a s.424A letter.)
2.Independent country information fell within s.424A(3)(a) – see VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264, QAAC v Refugee Review Tribunal [2005] FCAFC 92.
The inconsistencies in the applicant’s evidence and claims were not “information” for the purposes of s.424A(1) (see SZBYR at [18]).
No breach of the procedural code in relation to other parts of Division 4 is evident on the material before the court. This complaint does not succeed.

Ground Three: Failure to “use favourable cases”

The applicant complains that the Tribunal did not use “favourable cases to my application”. This is meaningless. The Tribunal is not a Court and is not in that sense bound by the precedent of other cases before it where a more a favourable decision may have been made. That others may have succeeded before the Tribunal with similar claims (if this is what is meant) does not assist the applicant.
It is for the applicant to put forward his claims and evidence (SZBEL at [40], per the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). It is for the Tribunal to consider each aspect of an applicant’s claims and to reach the requisite level of satisfaction that, in effect, the applicant is a refugee and is therefore owed protection, such that the protection visa must be granted. An inability to be satisfied that the applicant meets the definition of “refugee” mandates refusal of the visa. (See ss.65 and 36(2) of the Act. See also SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Proceedings before the Tribunal are inquisitorial (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [58]). The Tribunal however is not in a position of a contradictor. It is for the applicant before the Tribunal to advance his case in support of the contention that he has a well-founded fear for a Refugees Convention reason (Abebe v The Commonwealth (1999) 197 CLR 510 (“Abebe”) at [187] per Gummow and Hayne JJ).
It is not for the Tribunal to make out an applicant’s case for him (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. See also SZBEL at [40]). It is certainly not to go looking for “favourable cases” or circumstances to assist the application as perhaps is suggested by the applicant now.
In the current case the applicant was given the opportunity to put forward his claims and to present his evidence. Simply, on what was before it, the Tribunal could not be satisfied that the applicant met the definition of a refugee and was therefore owed protection.
The findings made by the Tribunal were open to it on the evidence before it, and in the circumstances no error is demonstrated (Kopalapillai at 558-559, W148/00A at [64]-[69]).
To the extent that this ground and the first stated ground could be said to complain about the fairness of the Tribunal’s findings, it is accepted that in an application for judicial review the Court cannot review the fairness of those factual findings (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10], Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, per Brennan J).

No error is demonstrated in the Tribunal’s decision by either of the two stated grounds.

Applicant’s Submissions to the Court

Before the Court the applicant submitted that he wanted more time to bring “evidence” from China that would address the “doubts” held by the Tribunal. I understood the applicant to be saying that there were “documents” in China which went to supporting his claim to be a refugee. No details were provided.
Whatever the nature of these “documents” it was clear that they did not go to the issue of whether the Tribunal’s decision was infected by jurisdictional error, but rather, in effect, would support re-agitating before this Court the question of whether or not the applicant was a refugee. This Court, of course, has no power to revisit this question itself and to engage in a reconsideration of the merits of the Tribunal’s decision. To do so would be to engage in impermissible merits review (Wu Shan Liang, Quin, Abebe). It was not appropriate therefore that the applicant be given any more time before this Court for that purpose. (Noting incidentally that the applicant has had over two months to prepare for the hearing before the Court.)
The applicant also complained that if the Tribunal had “doubts” about his claims it should have put these to him and given him the opportunity to respond by providing the “materials” to address the doubts.
Any plain reading of the delegate’s decision would have put the applicant on notice of the need to provide “material” or evidence to support his claims to protection. The delegate’s decision record makes this deficiency in the applicant’s case quite clear:
1.“The applicant has not presented any evidence in support of his claims” (CB 50.3).
2.“The applicant has provided no proof to support any of his claims” (CB 50.7).
Further, the delegate’s decision record would have put the applicant, and his adviser, on notice that:
1.Relevant country information indicated that it was quite common for people from the applicant’s home province to leave China to seek “better economic opportunities in Western countries” (CB 50.10).
2.It was “implausible that the applicant would have jeopardised his and his son’s departure from China by protesting and distributing literature as claimed” (CB 51.1).
3.Relevant country information indicated the applicant was not of interest to the Chinese authorities because had he been of interest he would not have been able to obtain a passport in the circumstances which he did (CB 51.3 to CB 52.8).
The applicant was represented by the same migration agent (“Priscilla Yu” of “Priscilla Yu International Co Pty Ltd”) before the delegate and the Tribunal (see CB 27 and CB 58) who was plainly in a position to advise and assist the applicant in this regard.
The applicant was clearly aggrieved by what he saw as an opportunity to put “evidence” before the Tribunal. It would appear, just on a reading of the delegate’s decision record, that this grievance would be better directed to the relevant authorities that monitor complaints and performances of migration agents.
But even before the Tribunal the applicant had ample notice and opportunity to provide “documents” or “evidence” in support of his claims.
The Tribunal acknowledged the application by way of its letter of 4 September 2008 addressed (as it was statutorily required to do) to the applicant’s migration agent, who had been authorised as the recipient for correspondence for him (CB 59).
The letter, amongst other things, plainly stated:
“… immediately send us any documents, information or other evidence you want the Tribunal to consider” (see CB 63.5).
The letter of 22 September 2008 inviting the applicant to the hearing included:
Please use the form [the enclosed “Response to Hearing Invitation” form] or attach additional information if there are any requests for new information you wish the Tribunal to consider. Any documents or written arguments sent to the Tribunal should be in English or be translated …” (CB 67).
The applicant attended the hearing before the Tribunal on 14 October 2008. His migration agent was not present (CB 79). The only account before the Court of what occurred at the hearing is that contained in the Tribunal’s decision record (CB 105.5 to CB 108.6).
First it must be noted that in relation to the applicant’s complaint that the Tribunal had “doubts”, these were not “doubts” in its reasoning (CB 112 to CB 114) such as to engage what is known as the “What If I Am Wrong test” (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, Abebe).
I understood the applicant to use this term to refer to “doubts about his claims” that is, as to the issues that were determinative in the decision to find against him. In this sense the applicant’s complaint (albeit not specifically stated this way) may be considered as a complaint that he was also denied procedural fairness pursuant to s.425 of the Act in the manner explained by the High Court in SZBEL.
Any such complaint, as well as the broader complaint of not knowing of the matters against him and deficiencies in his case and therefore the denial of an opportunity to address these, must on any plain reading of the material before the Court, fail.
The issues determinative of the review before the Tribunal were:
1.That the applicant was not of interest to the Chinese authorities, the Tribunal having rejected the relevant factual basis of this claim and finding some aspects implausible and lacking credibility (see CB 112.8 to CB 113.4).
2.That it was not credible that he would jeopardise (“put in peril”) his and his son’s ability to leave China (CB 113.5).
3.The rejection because of a lack of credibility of the applicant’s factual claims to have been the subject of a search warrant. (This was described as: “However, his evidence about execution of the search warrant was vague and lacked detail”.) (CB 113.8).
4.The applicant would not have been able to depart China in the manner he described if he had been of interest to the authorities (CB 113.9).
If the applicant had not been on notice of the determinative issues as a result of the delegate’s decision (SZBEL at [35]) any plain reading of the Tribunal’s unchallenged account of what occurred at the hearing reveals that the Tribunal identified the determinative issues dispositive of the review and the applicant was plainly given the opportunity to comment (SZBEL at [35] to [46] and in particular [47]).
In this regard the applicant was given the opportunity to set out the substrata of facts to his claims (SZGZH v Minister for Immigration and Citizenship [2007] FCA 486). In particular, also see CB 107.8 (“one of the things it could not follow about his claim …”) and CB 108.5 (“the Tribunal put to the applicant that … found it difficult to understand him … he was able to fly out of China …”).
There is no failure by the Tribunal to have provided procedural fairness to the applicant at the hearing by any failure to raise with him the determinative issues and to give him the opportunity to give evidence or make submissions. These issues were either specifically raised by the delegate’s decision record or canvassed by the Tribunal at the hearing.
But even in light of the broader basis on which the applicant has made his complaint (that he did not at any time know about what counted against him such that he could respond) such a complaint does not succeed.
Following the hearing the Tribunal wrote to the applicant on two occasions (CB 83 and CB89) putting him on notice of information before the Tribunal likely to lead to an adverse outcome, and inviting his comment and response.
In all, the applicant’s complaint that he was not aware of the Tribunal’s “doubts” and was therefore denied the opportunity to comment and provide other evidence, can only be seen as disingenuous and must fail.
Before the Court the applicant also complained that the “cassettes” of the Tribunal’s hearing which were given to him were “meaningless” to him because they were not put into his language. The applicant was unable to assist beyond this.
It must be said that it is difficult to understand exactly what the complaint is in this regard. The “cassettes” presumably recorded the Tribunal’s questions in English, the interpreter’s translation into Mandarin, the applicant’s response in Mandarin and the interpreter’s translation in English. (An interpreter in the Mandarin language of “NAATI level 3” rating was employed (see CB 79).)
Those parts of the “cassette” in Mandarin were plainly in the applicant’s language. I did not understand the applicant to complain about the level of translation or the capacity of the interpreter.
If the applicant was seeking to complain that the Tribunal should have provided him with a transcript of the hearing with annotations by another interpreter as to the accuracy of what was translated into Mandarin, then it is as Mr Shariff submitted that there was no statutory, or other, obligation on the Tribunal to have done so.
The applicant was represented by a migration agent throughout the processing of the application for the protection visa and the review. If there were any concerns there was ample opportunity for such a transcript to have been arranged.
But further, and importantly, there is nothing in the material before the Court, nor indeed in what the applicant said to the Court, to warrant any such opportunity being provided to the applicant even now.

Conclusion

For the applicant to succeed before the Court the Court would need to discern jurisdictional error in the Tribunal’s decision. I cannot see any such error based either on what the applicant has put forward, or otherwise. This application is therefore dismissed.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 24 March 2009