SZOXH v Minister for Immigration
[2011] FMCA 256
•13 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 256 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no reviewable error found – application dismissed. PRACTICE AND PROCEDURE – Referral of judgment to the OMARA. |
| Migration Act 1958 (Cth), ss.306AC, 420A, 424A, 425 Migration Regulations 1994 (Cth) |
| Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 ReMinister for Immigration; Ex Parte Epeabaka (2001) 179 ALR 296 SZOBN v Minister for Immigration [2010] FCA 1280 SZOWH v Minister for Immigration & Anor [2011] FMCA 192 SZOXC v Minister for Immigration & Anor [2011] FMCA 241 |
| Applicant: | SZOXH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 12 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 13 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2011 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court directs that a copy of the Court’s decision and reasons be provided to the OMARA for whatever action it deems appropriate.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 12 of 2011
| SZOXH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 10 December 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China, and had made claims of religious persecution. The following statement of background facts relating to the applicant's claims and the Tribunal decision on them are derived from the Minister's written submissions filed on 5 April 2011.
The applicant is a citizen of China who arrived in Australia on 18 March 2010.[1]
[1] CB 12.
On 16 April 2010 the Department of Immigration and Citizenship (Department) received an application for a protection visa from the applicant.[2]
[2] CB 1, 12, 27.
On 14 July 2010 the applicant attended an interview before the delegate.[3]
[3] CB 42, 51.3.
On the same day the delegate refused the protection visa.[4]
[4] CB 46.
On 3 August 2010 the applicant applied to the Tribunal for a review of the delegate’s decision.[5]
[5] CB 64.
On 26 October 2010 the applicant attended an oral hearing before the Tribunal.[6]
[6] CB 78- 79, 108 at [29].
On 10 December 2010 the Tribunal made a decision affirming the decision of the delegate.[7]
[7] CB 101, 125.
On 6 January 2011 the applicant filed an application for an order to show cause in this Court. On 15 March 2011 an amended application was filed.
The applicant’s claims
The applicant set out written claims in his protection visa application.[8]
[8] CB 16 – 19.
The applicant claimed that he was born in Fujian Province in China. After an uneventful childhood his parents found a suitable wife for him, whom he married in 1994. A son was born in 1995. The applicant ran a grocery shop for his parents, but developed and gambling habit which led to divorce in 1998. After another marriage and subsequent divorce he reunited with his first wife in 2004. They had two more children and were forced to leave Fujian and go to live in Hubei province in order to avoid large fines and penalties.
In July 2007 the applicant and his wife met Ms Fang Lin and a Dr Zheng who helped to cure their second son from a serious illness. Fang Lin and a Dr Zheng were members of the Local Church, which the Chinese authorities regarded as an evil cult. The applicant and his wife were both baptised on January 2008 in Fan Lin’s home.
From that time onwards, with the help of Fang Lin and a Dr Zheng, the applicant became involved in proselytising for the Local Church. He claimed that he established two separate secret gatherings of the Local Church during 2008. The applicant claimed he was arrested by Chinese authorities in March 2009 during an illegal gathering that was held at Dr Zheng’s clinic. The applicant claimed he was detained for two and a half months and released on 31 May 2009. The applicant claimed that when he was released Dr Zheng was sent to a labour camp.
Upon his release the applicant was required to report weekly to the Chinese authorities. He found this situation intolerable and took the advice of Local Church friends to get out of China.
The applicant claimed that he obtained a passport through bribery on 1 July 2009. He claimed that he remained quietly involved in the Local Church until he left China on 17 March 2010.
The applicant claimed that since leaving China, he has been put on a black list, and that many of his Local Church friends have been subjected to investigation by the PSB.
The applicant also claimed that he and his wife are still being investigated for breaches of the Chinese one child policy.
The applicant claimed that he remains involved in the Local Church by participating in Australia, and will be persecuted if he returns to China.
The Tribunal hearing and decision
The Tribunal conducted a hearing on 26 October 2010. The hearing lasted for almost 4 hours.[9]
[9] CB 79.
After the Tribunal hearing the Tribunal sent a s.424A letter to the applicant, inviting him to comment on certain inconsistencies in various parts of the evidence given to him during the course of his protection visa application and the application for review.[10] The applicant responded with a statutory declaration, which sought to address the concerns raised by the Tribunal.[11]
[10] CB 89.
[11] CB 92.
The Tribunal’s findings and reasons reveal that the Tribunal comprehensively disbelieved the applicant. It found the applicant’s evidence unsatisfactory in many respects and formed the view that he was not a credible or truthful witness.[12] The Tribunal found that the applicant was not involved in the Local Church in China, or that he had been baptised in 2008.[13] The Tribunal also rejected the applicant’s claim that he was arrested or detained in 2009, that he was of interest to the authorities in China, or that he would seek to express religious beliefs upon his return to China.[14]
[12] At [71].
[13] At [83].
[14] At [83] – [84].
Having considered the applicant’s evidence and that of a witness called by the applicant, Mr Poh, the Tribunal accepted that the applicant had attended a Local Church in Sydney. However, the Tribunal was satisfied that this conduct was undertaken for the purpose of strengthening his claims to be a refugee.[15]
[15] At [82].
Finally, the Tribunal rejected the applicant’s claims to fear persecution on account of his claimed breach of China’s one child policy. The Tribunal noted that it was well established that the Chinese Family Planning Regulations are laws of general application and applied in a non-discriminatory manner such that their application does not ordinarily amount to persecution. The Tribunal held that there was nothing to suggest that the laws would be applied to the applicant or his family in a discriminatory manner, and was not satisfied that any penalties the applicant might face would constitute persecution.[16]
[16] At [85].
The Tribunal concluded that the applicant did not have a well founded fear of persecution in China for the reasons he claims.
The present application
These proceedings began with a show cause application filed on 6 January 2011. The applicant confirmed today that that application was prepared by Mr Harry Huang, a registered migration agent who represented the applicant before the Tribunal. The template grounds in that application are in the same terms as in other applications apparently prepared by Mr Huang. An affidavit was filed with that application which was witnessed by Mr Huang in his capacity as a Justice of the Peace. There is no interpretation certificate with the affidavit but, as it was uncontroversial, I received it.
The applicant now relies upon an amended application filed on 15 March 2011. That amended application states that it was settled by counsel who advised the applicant pursuant to the Minister's panel advice scheme. The grounds in that application are:
1. The second respondent (the [Tribunal]) failed to comply with the Migration Act 1958, section 425, by reason of the improper and inaccurate interpretation by the Mandarin interpreter at the [Tribunal] hearing on 26 October 2010 such that the Applicant was deprived of the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars
a. The Applicant’s statutory declaration dated 22 November 2010 (CB 92-97) refers to certain errors of interpretation made by the Mandarin interpreter.
b. The Applicant will refer this Court to further errors by reference to a transcript of the [Tribunal] hearing presently being obtained.
2. The [Tribunal] committed jurisdictional error in that its decision was tainted by a reasonable apprehension of bias by reason of the nature and extent of its questioning and its ultimate findings in respect to the Applicant’s understanding of the Bible and Christian beliefs and his involvement with the local Church in China.
Particulars
a. CB 110-112; paragraphs 40-48
b. CB 119; paragraphs 70-72
c. CB 122-124; paragraphs 78-84
3. Further, or in the alternative, the [Tribunal] committed jurisdictional error in that it took into account irrelevant considerations when making its decision.
Particulars
a. [T]he Applicant refers to the nature and extent of the [Tribunal’s] questioning and its ultimate findings in respect to the Applicant’s understanding of the Bible and Christian beliefs and his involvement with the local Church in China:
i. CB 110-112; paragraphs 40-48
ii. CB 119; paragraphs 70-72
iii. CB 122-124; paragraphs 78-84
4. Further, or in the alternative, the findings of the [Tribunal] in respect to the Applicant’s understanding of the Bible and Christian beliefs and his involvement with the local Church in China were unreasonable, irrational and illogical. (See in particular MIC v SZOCT [2010] FCAFC 159 per Jacobson J)
Particulars:
a. CB 110-112; paragraphs 40-48
b. CB 119; paragraphs 70-72
c. CB 122-124; paragraphs 78-84
5. The [Tribunal] failed to comply with the Migration Act 1958, section 425, by reason of its failure to afford the Applicant an opportunity to verify his complaints of errors of interpretation by the Mandarin interpreter by providing a transcript of the [Tribunal] hearing from an independent interpreter.
Particulars
a. The [Tribunal], having been informed by the Applicant of errors of interpretation by the Mandarin interpreter, through his statutory declaration dated 22 November 2010, and without the benefit of a transcript of the [Tribunal] hearing from an independent interpreter, simply formed its own views of the competency of the Mandarin interpreter:
i. CB 119; paragraph 72
ii. CB 120; paragraph 73
iii. CB 121; paragraphs 75-76
iv. CB 122-123; paragraphs 79-81
Consideration
The applicant's principal concern is with alleged interpretation errors that occurred at the Tribunal hearing. The applicant, who speaks no English, has no direct knowledge of those interpretation errors. He told me of that and they were pointed out to him by his migration agent after the hearing. The alleged errors are set out in a statutory declaration which appears in the court book, which I received as evidence, from page 92 through to page 97. Mr Huang witnessed that statutory declaration in his capacity as a Justice of the Peace. He also forwarded the statutory declaration to the Tribunal by letter dated 22 November 2010[17].
[17] CB 91.
The Tribunal considered the alleged interpretation errors in its decision. The circumstances are detailed by the Tribunal at [58]-[61] of the Tribunal's reasons[18]:
[18] CB 114-117.
On 28 October 2010 the Tribunal wrote to the applicant pursuant to s.424A of the Act, inviting him to comment on or respond to information that would, subject to his comments, be the reason or part of the reason for affirming the decision under review. The information was as follows:
· Inconsistencies between the applicant’s evidence and the evidence of Brother William Poh, in that the applicant said that he had joined the local church in Hubei, whereas Brother Poh said that the applicant had told him about his experiences in the church in Fuqing City, and that he had held church gatherings in his home there.
· The applicant had given oral evidence that he had changed as a person since becoming a Christian in that he had stopped gambling in 2004, however he had stated in his protection visa application that he only started attending the local church in 2007 and was baptised in January 2008.
· In his oral evidence the applicant had said that when he lived in Fuqing, relatives and many other people encouraged him to join the church. He said that the relatives in question were his sister-in-law and two aunts. However, in his protection visa application he had said that his mother and grandmother were Christians and always talked to him about Christianity.
· In his protection visa application the applicant had stated that he was detained at the PSB, whereas at interview with the Department and at the Tribunal hearing he had said that he was not sure if he was detained at the PSB or at a detention centre.
The applicant was advised that these inconsistencies might lead the Tribunal to doubt that he was telling the truth in his evidence about being a member of the local church, and about having been forced to flee from China for that reason.
The applicant provided his response to the s.424A letter in a statutory declaration made on 22 November 2010. In relation to the specific matters raised n the s.424A letter the applicant made the following comments:
· He stated that the interpreter had made “significant” mistakes which had led to a misunderstanding of Brother Poh’s (also referred to as Brother Bai, in Cantonese) evidence from the beginning. He stated that when the Tribunal asked Brother Poh whether the applicant had spoken to him about his experience in China, Brother Poh had replied that he did not talk to the applicant about his experience in China or in Fuqing, but the interpreter missed the words “in China” and changed “Fuqing” to “Fuqing City”. The Tribunal then focussed its questions on Fuqing City, but Brother Poh was confused because he had never mentioned Fuqing City. Brother Poh then got confused and said that many people had mentioned similar experiences to him. The applicant stated that he had never told Brother Poh about his experience in China and had never said that he held church gatherings in his home in Fuqing City; he had only told Brother Poh that he is from Fuqing.
· The applicant confirmed that he stopped gambling in 2004 but only started attending the local church in 2007. He said that before that, some relatives including his mother and grandmother as well as his mother’s younger sister, his paternal uncle’s wife and his maternal uncle’s wife, had evangelised to him in Fuqing. When he became addicted to gambling they tried every means to make him stop, and took him to the Christian Assembly Church. Although the applicant did not convert to Christianity at the time, he did eventually give up gambling. He believes that this was the work of the Lord Jesus, and that he would not have been able to give up gambling without his help.
· The applicant stated that relatives including his mother, grandmother, his mother’s younger sister, his paternal uncle’s wife and his maternal uncle’s wife, had evangelised to him in Fuqing, but he did not convert to Christianity at that time. He stated that sometimes Lord Jesus lets us have more experience and more difficulties so that we can have a deeper understanding. The applicant stated (correctly) that he had never mentioned in his protection visa application that his mother and grandmother had talked to him about Christianity; he had said that at interview with the Department. The applicant also stated that the interpreter had incorrectly interpreted which relatives had talked to him about Christianity – she had said that it was his wife’s sister.
· As to where he was detained, the applicant pointed out that in his protection visa application he had said that he was taken away initially to the PSB, and was then detained for a further period, but did not specify where he was detained for this period. In his statutory declaration, he stated that he was transferred to another place after the first evening, but is not sure whether it was still in the PSB or was an independent place, or a special place attached to the PSB.
The applicant also raised general concerns about the competence of the interpretation at the Tribunal hearing, which he claims meant that he was unable to give his oral evidence or present arguments. He claimed that the interpreter made a number of significant mistakes at the hearing:
· The applicant stated that there are different Chinese words that convey the different meanings of the word “church” in English. Jiao-tang means the physical building where Christians worship; Jiao-hui means a particular group of Christians, for example, Anglican Church, Catholic Church etc. The applicant claimed that the interpreter wrongly used the word Jiao-tang when the Tribunal asked the applicant which church he attended in Australia. As the local church does not have a “church”, but only meeting places, the applicant was confused and did not know how to answer this question. Hence, his response seemed to be vague. Further, the applicant said that he could not give the precise address of the meeting place because he does not speak English, but this was interpreted as him not knowing the “English title of the church”.
· The applicant also claimed that the interpreter wrongly stated that Mr Chun Ping Zheng had the Recovery Version of the Bible in his hand when the applicant first met him, when in fact it was the Holy Words for Morning Revival.
· The applicant stated that he had said that he found that Mr Chun Ping Zheng’s phone number had been changed when he tried to ring him “for the last time”. This was wrongly interpreted as “a few days ago”. This led the Tribunal to think that the applicant’s evidence was inconsistent.
· The applicant stated that he was confused by the Tribunal’s questions about the parts of the Bible that are most significant to him. This is because as a devout Christian of the local church, he regards the Bible as the complete and only divine revelation, therefore every story and part of the Bible is significant to him. Despite his confusion, when he did quote a verse “for God so loved the world that he gave his only son…”, this was incorrectly interpreted so that the Tribunal did not realise that he had, in fact, mentioned his favourite part of the Bible. Again, when he mentioned the loaves and the fishes, the incorrect translation caused the Tribunal not to realise that he had provided his favourite story. After that, the applicant was confused and did not understand why the Tribunal kept repeating its questions about these matters, which, as far as he was concerned, he had already answered.
· The applicant stated that the interpreter was unable to interpret the applicant’s evidence about the miracle in which Jesus made a person “suffering from a dreaded skin disease to become clean”.
· The applicant stated that he was confused by the interpretation of the word for “parable”. He stated that “parable” could be interpreted in two ways, yu-yan or bi-yu. The interpreter used yu-yan which also means “prediction”, and this was what the applicant thought he was being asked about. Even when the Tribunal gave examples of parables the interpreter was “obviously” unable to interpret them clearly, so the applicant could not answer the question. If the interpreter had used the other word for parable the applicant would have understood.
· The applicant felt that the interpreter had misinterpreted the Tribunal’s question and his answer about the Holy Trinity, and set out his claimed beliefs about this in his statutory declaration. He also identified an instance where he claimed that the phrase “life-giving spirit” had been misinterpreted as “eternal God”, and “spirit” was misinterpreted as “heart”.
· The applicant also stated that he had said that he went to the Christian Assembly Church in Fuqing two or three times, but the interpreter had said “Assembly point”.
The Tribunal did not accept that there was substance to the complaints about the standard of interpretation. The Tribunal's reasons in reaching that conclusion are set out at [79]-[81][19]:
I do not accept that the deficiencies and difficulties in the evidence were the result of problems with the interpretation. I am satisfied that the interpreter was able to interpret the applicant’s responses adequately, in that I understood what he was saying and which parts of the Bible he was referring to. While the applicant says that I was confused because I kept asking the same question and he was therefore confused because he thought he had answered it. I do not accept that this was the case. My questions were aimed at testing more than superficial knowledge of the Bible. I therefore asked the applicant about the context in which the particular events or sayings of Christ to which he had referred took place, or asked him to explain why they had special meaning to him. I do not accept his explanation that he was unable to answer the questions because all parts of the Bible are equally significant to him. I explained to the applicant at length why I was asking him the questions I did, and what sort of response was expected. I consider that he had ample opportunity to explain at the hearing why he could not provide the required answers, if it were true that this was related to an inherent part of his religious beliefs and a particular view of the Bible, but he did not do so. In any case, the explanation now put forward does not explain why the applicant was unable to elaborate on, for example, the context in which certain Biblical events took place. I am satisfied, after reviewing the evidence on these matters, that the applicant was unable to demonstrate understanding of the content of the Bible, or really explain what it means to him personally, because his commitment to Christianity is not genuine, but learned for the purpose of the application.
As to the applicant’s claimed confusion about the “parables”, I note that the word used by the interpreter “yu yan”, is the word provided as the appropriate translation of this term in the Glossary of Chinese Christian terms which is used by the Tribunal. While the alternative term “bi yu” suggested by the applicant may be a possible translation, I am satisfied that the term used by the interpreter is, in fact, the standard and more commonly used translation and that it should be clearly understood. I do not accept that the applicant was confused by the interpreter’s use of this particular word. I consider that a Christian who was genuinely familiar with the Bible would understand the word “yu yan” to mean parable, a concept which appears frequently in the Bible, rather than “predictions”, which does not. In any case, I was alert at the hearing to the possibility that there may be a translation issue in relation to this specific term so I was careful to explain to the applicant what I was referring to, telling him that I was asking about stories told by Jesus to illustrate how people should behave. I consider that a person who really had the familiarity with the Bible that the applicant claims would be able to understand what was being asked of him, and be able to provide some examples of parables.
The applicant has explained at length in his s.424A response that his answers to questions about certain matters of doctrine were mistranslated, for example, his explanation of the Holy Trinity and his remarks about “life giving spirit”. In fact, I was satisfied at the hearing with the applicant’s answers to these questions. I am well aware of the possibility of difficulties that an applicant may have in expressing himself, and that an interpreter may have in translating, such difficult and abstract concepts. The fact that the applicant has now provided a lengthy further explanation of these concepts in his s.424A response, using complex language which, to my mind, does not appear to reflect his own words and understanding – for example, he states “…as a devout Christian of the local church, I strongly believe that God is eternally one and also eternally the Father, the Son and the Spirit, the three being distinct but not separate. I believe that my Lord Jesus Christ is both the complete God and the perfect man. I believe that without abandoning his divinity, my Lord Jesus was conceived in the womb of a virgin, lived a genuine human life on earth, and died a vicarious and all-inclusive death on the cross” – does not overcome my concerns, based on the inadequacies in his oral evidence at the hearing about other aspects of his religious beliefs, as to the truth of the applicant’s overall claims. With respect to the applicant, I do not accept that he is capable of using the complex language and expression of the s.424A response to explain his beliefs. The expression in this extract is incongruous with the language and conceptual complexity that was evident in his evidence, overall, at the hearing, and I do not consider that this was because of inadequate translation. That these statements are included in a statutory declaration prepared and translated for the applicant by his migration adviser does not persuade me that the applicant is actually capable of expressing such beliefs, or that he genuinely holds them.
[19] CB 122-124.
It is significant that the Tribunal expressed concern at [81] of its reasons that the statutory declaration did not appear to reflect the applicant's own words and understanding. That was confirmed by the applicant before me today. He said that Mr Huang prepared the statutory declaration after listening to the sound recording of the Tribunal hearing and that he, the applicant, signed it.
It is a matter of additional concern to me that at least one of the same alleged interpretation errors was raised by the same migration agent in another matter[20]. In that case, the Tribunal found that the alleged interpretation mistake had been concocted after the hearing in order to attempt to overcome inconsistency problems in the applicant's evidence. In that case, as here, Mr Huang did not attend the Tribunal hearing. In that case, as here, Mr Huang left blank on the hearing invitation response form whether he would be attending the hearing or not. Having now reviewed a significant number of cases involving this particular agent, I am satisfied that this is a deliberate and standard practice[21]. I was sufficiently concerned about the agent's conduct in SZOWH to direct that a copy of my judgment be provided to the Office of the Migration Agents Registration Authority (“OMARA”). I make the same direction in this case.
[20] See SZOWH v Minister for Immigration & Anor [2011] FMCA 192.
[21] In SZOXC v Minister for Immigration & Anor [2011] FMCA 241 at [36] I drew attention to the ability of the Principal Member to put a stop to the practice by issuing a direction under s.420A of the Migration Act.
The applicant told me from the bar table that Mr Huang accompanied him to the Tribunal premises for the hearing but explained to the applicant that he would be unable to attend because he had to attend another Tribunal hearing at the same time. The applicant said that Mr Huang told him that he tried to get the time of the hearing changed so that he could attend, but that the Tribunal refused to change the hearing time. It would be a simple matter for the OMARA to check the accuracy of those assertions with the Tribunal.
The conduct of migration agents is something that should be of concern to the minister, as well as the OMARA. Paragraph 2.9 of the Migration Agents Code of Conduct in the Migration Agents Regulations (Cth) (“the Regulations”) provides that while a registered migration agent cannot be responsible for misinformation provided by a client, a registered migration agent must not make statements in support of an application under the Migration Act 1958 (Cth) (“the Migration Act”) or the Regulations, or encourage the making of statements which he or she knows or believes to be misleading or inaccurate.
More generally, s.306AC of the Migration Act confers on the Minister the power to refer a registered migration agent to the OMARA in circumstances where the agent has been involved in applications having a high visa refusal rate. I have not had the benefit of examining cases in which this particular agent may have represented applicants who were successful in their protection visa applications. The Court only sees those cases where applicants were unsuccessful. Having examined cases now over many years, however, it is a significant concern to me that the particular firm of which Mr Huang is a part tends to represent applicants who are unsuccessful in circumstances where the Tribunal makes comprehensive findings of untruthfulness. Some of the cases in which the firm has been involved have also involved the alleged fabrication of documents.
Turning to the grounds of review advanced by the applicant, the issue of interpretation bears on the Tribunal's obligation under s.425 to provide a fair hearing opportunity. I accept that the standard of interpretation at a hearing may be so low as to deprive an applicant of a fair hearing opportunity. Additionally, interpretation problems in respect of particular issues of significance may result in a hearing being unfair.
I provided the applicant with the opportunity, in orders may by me on 1 February 2011, to provide a transcript of the Tribunal hearing by 15 March 2011. The amended application filed on that day promised the production of a transcript. However, no transcript has been provided. The applicant told me that he could not afford to provide a transcript. That may be so, however, the applicant could have advanced evidence of interpretation errors in other ways. He could have invited the Court to listen to parts of the sound recording of the Tribunal hearing that demonstrated interpretation problems. He has not done so. When I asked the applicant if he had the sound recording with him, he told me he had not brought it with him. Curiously, he has apparently shown the sound recording to his landlady, who has listened to it. The applicant told me that the landlady said there were many interpretation errors. Her expertise to express an opinion is unknown. If she has any expertise, I do not have any evidence from her.
In the absence of any evidence on which the effectiveness of the interpretation could be assessed, there is no basis for me to go behind the Tribunal's conclusions in dealing with the complaints of interpretation errors that were put before the Tribunal. There is simply insufficient evidence before the Court for the Court to be in a position to be satisfied on the balance of probabilities that there was any serious problem with interpretation at the hearing at all, let alone a problem that would amount to a denial of a hearing for s.425 purposes.[22] The Court requires a basis upon which it can assess the interpreter’s performance at the hearing[23].
[22] See for example Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]; Singh v Minister for Immigration (2001) 115 FCR1; Perera v Minister for Immigration (1999) 92 FCR 6.
[23] VWFY v Minister for Immigration [2005] FCA 1723 at [10].
Secondly, on the evidence that is before the Court, whilst the applicant clearly complained about the interpretation standard after the Tribunal hearing in his statutory declaration,[24] the Tribunal found that the claimed problems did not impact upon the applicant’s ability to give evidence.[25] The Tribunal expressly considered the matters raised by the applicant in his submissions and found that in relation to the matters that the Tribunal considered significant the interpreter did a “proper and adequate job”.[26]
[24] At [61].
[25] At [73], [79].
[26] At [73], [79] – [80]. Cf. for example SZOBN v Minister for Immigration [2010] FCA 1280.
There is no basis upon which the Court could question those findings.
The asserted breach of s.425 of the Migration Act is unsubstantiated.
The amended application also asserts an apprehension of bias, unreasonableness or irrationality and taking irrelevant considerations into account. The applicant told me that he had no knowledge of those matters himself, and the issues had been suggested to him. Those issues are adequately dealt with in the Minister's submissions.
The applicant particularises [40]-[48], [70]–[72] and [78]–[84] in the Tribunal’s decision as providing the basis upon which this claim is made out.
Paragraphs [40]–[48] (in the Claims and Evidence section of the decision record) reveal a thorough but fair testing of the applicant’s claims to be a Christian and a member of the Local Church. Paragraphs [70]–[72] and [78]–[84] are in the Findings and Reasons section of the decision record, and reveal some of the Tribunal’s reasoning and findings about the applicant’s professed religious beliefs and activities, which the Tribunal rejected outright.
I have previously warned against the Tribunal taking a preconceived adverse view about the claims of applicants who are represented by agents with a poor reputation.[27] The applicant (understandably) did not submit that the reputation of his agent was so bad that no one represented by him could ever obtain a fair hearing before the Tribunal. It is difficult to know what the true complaint is, but the applicant would be misconceived if he were to argue that a thorough and forthright testing of his factual claims constitutes and apprehension of bias[28].
[27] See SZOUS v Minister for Immigration [2011] FMCA 166 at [22].
[28] ReMinister for Immigration; Ex Parte Epeabaka (2001) 179 ALR 296; Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at 435[30]; SZJKU v Minister for Immigration [2008] FCA 308 per Emmett J at [36]
Also, ordinarily a person who claims that there is an apprehension of bias needs to demonstrate some inappropriate conduct on the part of the decision maker, apart from the expressed reasons, to indicate that the decision maker was guilty of pre-judgement[29].
[29] SBBS vMinister for Immigration (2004) 194 ALR 749 at [44]
However, even taking the Tribunal’s reasons alone, there is simply no suggestion in the reasoning of the Tribunal that it approached its task with a closed mind.
Accordingly there is no foundation for this ground of review.
Grounds 3 and 4: Irrelevant considerations and unreasonableness/irrationality
The applicant refers to the same paragraphs to plead alternative grounds that the Tribunal took into account irrelevant consideration and/or that the reasoning and findings were unreasonable, irrational and illogical.
In the third ground the applicant expresses his complaint in terms of the “nature and extent” of the Tribunal’s questioning and its ultimate findings. This suggests that the applicant takes the view that the Tribunal simply went too far or was not entitled to test his claims in the way that it did.
The Tribunal is permitted to test an applicant’s claims in a robust, even sustained manner. Indeed, the Tribunal is under a statutory duty to explore claims and make findings of fact that support its conclusions.
It is well established that the Tribunal may evaluate the applicant’s answers against probative material which evinces the doctrines of a religion and that that the weight to be given to the evaluation will ordinarily be a matter for the Tribunal[30]. The Tribunal’s decision reveals that it did just that.
[30] Minister for Immigration v SZLSP (2010) 272 ALR 115 at [38].
The applicant appears to rely upon the judgment of Jacobson J in Minister for Immigration v SZOCT [2010] FCAFC 159. However, in that case His Honour was in dissent. Buchanan and Nicholson JJ ultimately held that the manner and nature of the questioning was not sufficient to establish jurisdictional error in that case. In any event, in SZOCT there was a transcript which revealed (in the words of Buchanan J) that the applicant might have been treated unfairly (at [60]) and also revealed the foundation for the proposition that the Tribunal’s conclusion concerning about the applicant’s religious knowledge was irrational and/or illogical: see Nicholas J at [80].
However, the present case does not have any of the features of illogicality that were present in SZOCT. This was not a case where the Tribunal’s conclusions about the applicant’s religious beliefs rested primarily on its own, artificial assessment (like the kind undertaken in SZOCT) of what a Local Church follower should know. The Tribunal’s difficulties with the applicant’s claims to be a Local Church follower stemmed in large part from the applicant’s own inconsistent evidence around dates of certain events occurring (see [74], [76] and [77]) and the applicant’s apparent inability to be able to relate in any personal or meaningful way with the teachings of the bible when he was asked questions about it: at [78] – [79].
Finally, the amended application complains that the Tribunal erred in forming its own views as to the competency of the Mandarin interpreter engaged for the Tribunal hearing. It is difficult to understand that ground. In my view, if a complaint of interpretation error is made to the Tribunal prior to the Tribunal making its decision, the Tribunal has an obligation to consider that complaint and deal with it. In dealing with that complaint, the Tribunal must inevitably form its own views as to the competency of the interpretation. How the Tribunal forms its view is a matter for it. It might be able to satisfy itself from simply listening to the sound recording. It might require professional advice from a person expert in the language employed by the applicant. The Tribunal does not explain in its reasons how it satisfied itself that the complaints made by this applicant were unfounded. There is no evidentiary basis on which I could conclude that whatever process was followed by the Tribunal was inadequate in any legal sense.
I find that the decision of the Tribunal is free from jurisdiction error. It is therefore a privative clause decision, and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs. The applicant did not wish to be heard on costs. The Minister seeks an order for costs fixed in the sum of $5,000. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 15 April 2011
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