SZQIF v Minister for Immigration
[2013] FCCA 24
•15 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQIF v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 24 |
| Catchwords: MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicant procedural fairness and breached ss.424AA, 424A and 425 of the Migration Act 1958 – failure by Tribunal to recall a witness to clarify her evidence – whether s.424A written notice remedied any deficiencies in s.424AA oral notification – quality of interpretation services at Tribunal hearing. ADMINISTRATIVE LAW – Incorrect interpretation will amount to a breach of s.425 of the Migration Act 1958 if it prevents an applicant from placing before the Tribunal evidence or arguments on issues determinative of the Tribunal’s review. |
| Legislation: Migration Act 1958, ss.36, 422B, 424AA, 424A, 425, 474 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 WACO vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 |
| Applicant: | SZQIF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1183 of 2011 |
| Judgment of: | Judge Cameron |
| Hearing date: | 28 November 2011 |
| Date of Last Submission: | 28 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 April 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1183 of 2011
| SZQIF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. She claims that she began practising Yi Guan Dao on a visit to Australia and that on her return to China her Yi Guan Dao books were confiscated. She alleges that she was later arrested and detained.
The applicant claims to fear persecution in China because of her religion.
The applicant was first in Australia between 15 August 2007 and 8 February 2008 and then returned on 16 August 2009. On 14 July 2010 she lodged an application for a protection visa. That application was refused by a delegate of the first respondent (“Minister”) on 16 November 2010. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4–30 of the Tribunal’s decision. Relevant factual allegations are summarised below.
In her application for a protection visa, and in an amended claim dated 25 August 2010, the applicant made the following allegations:
a)her religion was I Kuan Tao (Yi Guan Dao);
b)when she returned to China from Australia on 8 February 2008, her Yi Guan Dao books were taken by customs officers at Fuzhou airport;
c)more than a month later, she was questioned at the local police station. The police pushed her, causing an injury to her right shoulder. It was at this time that she realised that Yi Guan Dao was banned in China as an illegal secret society and so she applied for a visa to return to Australia. Her brother’s friend who worked in the police department had helped her but he could not protect her any more; and
d)she feared persecution against herself and her family. The authorities would not protect her because they hated what she believed in.
The applicant provided a further statement on 20 October 2010. In it she alleged that on 18 October 2010 the police had telephoned her husband requesting him to attend an interview the next day and when he did he was interviewed by five police officers who told him that the Chinese Consulate in Australia had asked that he be interviewed. She alleged that they had asked, among other things, why she had not returned from Australia. The applicant also claimed that another of her relatives had been questioned by the police and that that relative had since refused to maintain contact with her.
The applicant was interviewed by the Minister’s delegate on 8 November 2010, when she made the following claims:
a)when she first arrived in Australia in August 2007, her sister introduced her to Yi Guan Dao. She attended practice on a weekly basis and was made a member in December 2007. She was initiated on 13 September 2009;
b)she attended the temple, which was in an office building in the city, every second night at 6.30pm;
c)Yi Guan Dao does not have any particular practice other than “preaching the ideas and [being] benevolent”;
d)she was questioned by police in China on 25 March 2008 and detained overnight. She was asked whether she had conducted any illegal activities in Australia and where she had obtained the Yi Guan Dao material. The police tried to make her write a statement saying that she had been involved in illegal activities but she refused. A friend of hers had “made call” and she was released at around 5 or 6am on 26 March 2008;
e)as she was about to leave the police station, she was pushed down the stairs and dislocated her “bones”. She did not see who had pushed her and did not know if it was an accident or intentional;
f)because relatives and friends visited her, her home had once been checked for gatherings by the local neighbourhood watch committee;
g)she did not practise Yi Guan Dao when she returned to China because there was no Yi Guan Dao activity in China and no temples;
h)on 18 October 2010 her husband received a notice to attend the police station. He did so the following day and was questioned. She did not speak to her husband about this at the time because he had been told not to tell others but she found out because her husband rang her sister on the night of 19 October 2010 and told her that he had been questioned. He was asked to return to the police station on 20 October 2010, presumably because he had told her sister about his questioning on 19 October 2010 and the call had been intercepted; and
i)her husband attended the police station, for a second time, on 20 October 2010. He did not tell her sister what happened on that occasion and the applicant did not speak to him either because she did not want to get him into trouble.
Tribunal
The applicant attended a Tribunal hearing on 17 February 2011 and gave the following evidence:
a)when she was first told about Yi Guan Dao, she was in China and her sister was visiting from Australia. Her sister told her more about it when she, the applicant, came to Australia;
b)she changed her religion from Buddhism to Yi Guan Dao. Although the two religions were similar, what her sister told her about Yi Guan Dao suited her;
c)she commenced practising in Australia on 20 August 2007 and had attended gatherings once a week when she was able to. She stopped practising in November 2007 because the temple had moved. She had planned to be initiated in December 2007 but did not proceed because there had been no permanent place for the ceremony;
d)no-one in their congregation practised between November 2007 and February 2008 because they had not had a temple and their master had travelled to Taiwan, so there was no-one to teach them. The master returned in March 2008, after she had returned to China, and her sister resumed practising then;
e)after her books were confiscated, she became aware of the history of the religion through her sister who researched it on the internet;
f)the customs officers told her that Yi Guan Dao books were prohibited in China but had not told her why. She told her husband of the confiscation when she got home and her sister a few days later but they did not pay much attention to it and did not know that the books were banned in China. Her sister also did not know that Yi Guan Dao was banned;
g)she told her sister about her detention the day after it happened. About a month later she spoke to her sister about obtaining a visa so that she could leave China;
h)on 18 October 2010 her father told her that her husband was going to be questioned by the police. She had not spoken to her husband because she was afraid that she would “bring him more trouble”. He had instead spoken to her sister, telling her the night before he was questioned that he was due to be questioned and, the next day, what had happened; and
i)her father told her sister about her husband’s second questioning. Her husband would not tell her sister anything about it.
The applicant’s sister also appeared before the Tribunal on 17 February 2011. She gave the following evidence:
a)she was introduced to Yi Guan Dao in 2006;
b)before the applicant arrived in Australia, she had mentioned to her that “God is good” but had not specifically mentioned Yi Guan Dao. She had not told the applicant about Yi Guan Dao when she visited China because at the time she did not follow it;
c)she had introduced the applicant to Yi Guan Dao in the applicant’s second week in Australia. They had attended the temple every weekend but they stopped practising in November because the lease for their temple ended and their master had returned to Taiwan. She resumed practice in March 2008;
d)in 2009 she and the applicant practised weekly on Saturdays or Sundays commencing between 6 and 7.30pm;
e)she became aware of the applicant’s books being confiscated after the applicant was detained in March 2008. Until then she had not known that Yi Guan Dao was illegal in China. She could not recall when she found out about the applicant’s detention or whether it was the applicant or her mother who told her. She had told the applicant to try to escape China; and
f)the applicant’s husband had told her that he had been summoned to an interview and she had telephoned him on 19 October 2010 to find out what had happened at the interview. She had kept it from the applicant for a few days because the applicant was “not tough” but had told her at work not more than a week later. After about two to three weeks she told the applicant not to contact her husband.
The Tribunal hearing continued on 11 March 2011, when the applicant gave the following additional information:
a)her arrest in March 2008 occurred at 4, 5 or 6pm;
b)she had been released because her brother’s friend had made some telephone calls and because the police had had no evidence against her;
c)she hit her right elbow when she was pushed down the stairs at the police station;
d)in 2009, she practised Yi Guan Dao once a week at an office building in the city, normally on a Saturday or Sunday. There was no fixed time for practice, sometimes it was at night and sometimes it was in the afternoon;
e)on 18 October 2010, her husband’s company leader told him that the police wanted to question him the following day. On the night of 18 October 2010 she was told by her father that her husband was to be questioned by the police. On 19 October 2010 her husband spoke to her sister, not to her, about what had happened. Although she was in the room with her sister when her husband and her sister spoke to each other, her sister tried to avoid doing this in front of her because her sister was afraid she would worry. Her sister kept the details from her and only told her the details of her husband’s questioning two, three or four days after it happened, whilst they were driving;
f)between March 2008 and March 2009 her family was monitored; when friends came to visit the neighbourhood committee would pay a visit to her home;
g)she had delayed her application for a visa to return to Australia until March 2009 because her sister had told her that she would have to wait for a year before she would be granted a visa or be able to exit China. She had not applied for a protection visa until July 2010 because she had had to consider her family. She had to make sure her son was safe and she had worried that she would not be able to return to China to take care of her elderly parents. She had also taken into account the fact that her sister had put up bond for her visitor visa; and
h)she had not practised Yi Guan Dao in China in 2008 and 2009 because she did not have her books. The applicant said she “do some songs” but was not sure if this was included as practice.
On 17 March 2011 the Tribunal sent a s.424A letter to the applicant seeking comments on information it considered would be the reason, or part of the reason, for affirming the delegate’s decision. On 6 April 2011 the applicant’s migration agent wrote to the Tribunal submitting that the interpreting services on both hearing days had been so deficient that the applicant had been denied a real opportunity to put the details of her claim to the Tribunal. The adviser sought a new hearing with a newly constituted Tribunal. The adviser submitted that if the evidence at the Tribunal hearing was relied on, the applicant would come across as a person who often spoke unintelligibly and who was unable to construct a cogent sentence. The applicant later produced to the Tribunal a psychologist’s report dated 24 March 2011 which said that she had chronic post-traumatic stress disorder, had had a severe episode of reactive major depression and had also suffered anxiety with panic attacks. The report said that the applicant’s symptoms were entirely attributable to the actions of, and to subsequent charges by, Chinese officials in dealing with her religious practices.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal did not accept that the interpretation at its hearing was so deficient that the applicant was denied a fair hearing, or that it was deficient at all. For the following reasons the Tribunal was satisfied that the applicant and her sister understood what it had asked them and that it had understood what they told it:
a)the Tribunal had used different interpreters for each hearing day, both with National Accreditation Authority for Translators and Interpreters (“NAATI”) level 3 accreditation, and had listened to the recordings of the hearing on two occasions after being advised of the applicant’s agent’s concerns about the interpretation. The Tribunal was satisfied that the concerns raised about interpretation deficiencies at the hearing were incorrect, exaggerated or taken out of context and that such differences as there were between the Tribunal’s interpreter and the translations obtained by the applicant’s agent did not go to any substantive matter or add anything relevant;
b)at the outset of both hearing days the Tribunal had asked the applicant to inform it if she did not understand the interpreter, or any questions put to her, and neither she nor her sister had raised any issues. On the second hearing day the Tribunal had confirmed with the applicant its understanding of her evidence from the first day and was satisfied that her evidence and its understanding were the same;
c)after the applicant’s agent raised concerns about the interpreting at the hearing, the Tribunal clarified the applicant and her sister’s evidence with them and they provided the same evidence they had previously provided;
d)the Tribunal had listened to the recordings of the hearing and did not accept that either of the interpreters had had difficulty interpreting or that the applicant had been in any way unable to present her evidence because of the attitude of the interpreter. The Tribunal found that the interpreters were clearly audible and coherent and that it had had no difficulty understanding them;
e)the Tribunal noted that it did not have the impression that the applicant spoke unintelligibly or that she appeared to be unable to construct a coherent sentence. It was satisfied that the applicant was able to express herself and found that whilst her answers might have sometimes lacked spontaneity, this was attributable to her nervousness and timid nature;
f)noting that the applicant’s sister had resided in Australia since 1989, was an Australian citizen and had helped the applicant with her protection visa application and subsequent material lodged in English, the Tribunal did not accept that the applicant’s sister was unable to convey her evidence or that she did not understand the questions put to her; and
g)although the Tribunal had, pursuant to ss.424A and 424AA, put to the applicant a number of substantive inconsistencies between her evidence and that of her sister, she had not indicated that they might have been related to misinterpretation. Further, the applicant’s agent had not pointed to any substantive issues or material that were not interpreted and which might have explained those inconsistencies. The Tribunal did not accept that the applicant was not afforded a fair hearing or that any inconsistencies in the evidence were the result of interpretation errors or misunderstandings.
For the following reasons the Tribunal was not satisfied that the applicant’s Yi Guan Dao books had been confiscated in February 2008 or that she had been detained by the authorities in March 2008:
a)the Tribunal found that it was not credible that the applicant, on her own or with her sister’s help, would not have enquired into why her books had been confiscated or why they were banned. The Tribunal also found that in light of the fact that the books belonged to the applicant’s sister, who by then had been a Yi Guan Dao follower for two years and had introduced the applicant to its practice, it was not credible that the applicant’s sister had not been concerned about their confiscation;
b)the Tribunal found that the applicant’s claim that she had not been aware until her detention in March 2008 that Yi Guan Dao was banned was not credible. This was particularly as the applicant knew that her books had been confiscated and had been told that they were prohibited in China;
c)the Tribunal found that the applicant’s account of her arrest and detention was inconsistent, vague and lacking in detail. The Tribunal noted that the applicant gave conflicting evidence about the time of her arrest and then claimed that she could not remember the time because she was nervous. The Tribunal acknowledged that the events were said to have occurred in 2008 and that the applicant may have been nervous, but was concerned that the applicant did not remember a significant event in her life which formed a critical part of her claims. The Tribunal considered that the applicant’s inability to recall when she was arrested was a means of avoiding and explaining the inconsistent evidence she had given;
d)the Tribunal found that the applicant’s account of her release lacked credibility. The Tribunal did not accept that the applicant was released because the authorities had had no evidence against her, finding that if her books had been confiscated, the mere possession of her confiscated books by the authorities was evidence of her Yi Guan Dao involvement; and
e)the Tribunal found that the applicant’s account of how her husband was invited for questioning by the authorities was inconsistent. While the Tribunal accepted that this inconsistency was not significant on it own, given that the event was very recent and, considered together with the inconsistencies between the evidence of the applicant and that of her sister, it led the Tribunal to have concerns about the credibility of the applicant’s claims.
The Tribunal found that the applicant and her sister gave inconsistent evidence about:
a)when the book confiscation incident was relayed to the sister;
b)when the applicant’s detention was relayed to the sister; and
c)how the applicant became aware of her husband’s questioning. In relation to this issue the Tribunal noted that the applicant first said that her sister told her about her husband’s questioning before he was actually questioned and, after it was put to her that her sister’s evidence had been that the latter had not told her anything until a few days after, she then said that had known that her husband was being questioned but was not told the details by her sister for a few days. The Tribunal did not accept the applicant’s explanation. It went on to note that the applicant’s explanation of this discrepancy was also at odds with her evidence that she was in the room with her sister on 19 October 2010 when her sister and her (the applicant’s) husband spoke to each other.
Whilst the Tribunal accepted that two different parties’ recollections of when events were relayed to another might not be consistent, it considered that these three events were significant and, given that they had been recent events, it placed some weight on these inconsistencies. The Tribunal found that in isolation the inconsistencies might have been discounted but, when considered together, it did not accept that the events in question had occurred. The Tribunal did not accept that the applicant or her sister had been telling the truth about the book confiscation, the applicant’s detention or the questioning of the applicant’s husband. The Tribunal found that their accounts lacked credibility and that even if the applicant’s nervousness and depressed state were accepted, those conditions did not explain the inconsistencies in the evidence.
The Tribunal placed little weight on the psychologist’s report submitted by the applicant, as far as it was purported to be evidence that the events occurred, because the report relied on an uncritical acceptance of the applicant’s self-reported claims.
Therefore, the Tribunal did not accept that the applicant had had Yi Guan Dao books confiscated by officials or that she or her husband had been questioned by police.
The Tribunal also noted that the applicant gave different accounts of when her sister had told her about Yi Guan Dao and considered that the applicant had changed her account to be consistent with her sister’s evidence. The Tribunal found that the applicant’s evidence about whether she practised Yi Guan Dao in China was inconsistent and it did not accept that the applicant had practised Yi Guan Dao there.
The Tribunal found that the applicant’s evidence about her Yi Guan Dao practice in Australia was inconsistent, lacked credibility and displayed a limited understanding of Yi Guan Dao. In this regard:
a)the Tribunal was not satisfied that the applicant provided a credible explanation of why she changed her religion from Buddhism to Yi Guan Dao, particularly given her explanation that the religions were similar. It found that the applicant demonstrated at its hearing limited knowledge of Yi Guan Dao philosophy, practice and rituals. The Tribunal noted that the applicant had had difficulty explaining what Yi Guan Dao practice involved, saying that there was no particular practice other than preaching the ideas and being benevolent. The Tribunal did not accept that the applicant’s knowledge reflected conviction or genuine belief in Yi Guan Dao. Further, because her evidence lacked credibility and detail, the Tribunal did not accept that the applicant had practised Yi Guan Dao in Australia in 2007;
b)the Tribunal also found that the applicant’s account and that of her sister about when the sister became a Yi Guan Dao practitioner were inconsistent and did not accept that they had told the truth about when the sister became a Yi Guan Dao practitioner;
c)the Tribunal found that the applicant’s account of her planned initiation in 2007 was not credible and it did not accept that she had planned to attend an initiation ceremony in 2007;
d)the Tribunal found that the applicant’s evidence about the frequency and timing of her practice in 2009 was inconsistent. The Tribunal found her inability to recall, even in general terms, when she had stopped practising with the master, and her difficulty in identifying where she practised, to be inconsistent with a committed, regular Yi Guan Dao practitioner. The Tribunal concluded that the applicant exaggerated the regularity and frequency of her Yi Guan Dao practice in Australia; and
e)whilst the Tribunal had some doubts that the applicant had practised Yi Guan Dao in Australia, it accepted that she had attended some Yi Guan Dao sessions with her sister, when the master was available during her second visit. However, in all the circumstances, the Tribunal was not satisfied that the applicant had engaged in this conduct other than for the purpose of strengthening her claim for refugee status and therefore disregarded it when considering her claim.
The Tribunal accepted that the neighbourhood committee might have visited the applicant’s house because there had been a large gathering there but did not accept that this amounted to serious harm or that it was Convention-related. Because the applicant raised that claim late on the second hearing day and because the Tribunal did not accept that she had practised Yi Guan Dao in China, the Tribunal did not accept that more frequent visits or monitoring occurred. It did not accept that the applicant had been monitored by the authorities because of Yi Guan Dao practice or for any Convention reason.
The Tribunal did not accept that if the applicant had been living in fear, she would not have a found a way to depart China earlier than one year after her detention, particularly as she was not unfamiliar with obtaining visas to travel to other countries. The Tribunal also found that the applicant’s delay in applying for a visa was inconsistent with her evidence that after her detention in 2008 she had been fearful and had decided to apply for a visa to escape China. The Tribunal did not accept the applicant’s explanation that the delay in making her application had been out of concern for her son and the impact on her family. The Tribunal concluded that the delay was inconsistent with the applicant’s fear of persecution and desire for protection and indicated instead that her fear was not real.
Having considered all the evidence and submissions, the Tribunal did not accept any of the applicant’s claims.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal denies [sic] the Applicant procedural fairness.
Particulars
a.The Tribunal failed, at the second hearing, to call the Applicant’s sister to comment on inconsistencies in the decision
b.The Tribunal failed to have the Applicant’s evidence adequately interpreted.
2.The Tribunal failed to comply with its statutory obligation.
Particulars
a.The Tribunal failed to comply with the Migration Act 1958 s.425 – by failing to have proper interpreting services, the Tribunal failed to meaningfully invite the Applicant to the hearing.
b.The Tribunal failed to comply with the Migration Act 1958 ss.424A and 424AA.
By way of evidence, the applicant relied on two affidavits of Stewart Robert Coulson to which were annexed comparative transcripts of the two sessions of the Tribunal’s hearing. The Minister did not contest the accuracy of those transcripts.
Denial of procedural fairness
Submissions
The applicant’s sister was called to give evidence on the first day of the Tribunal’s hearing and, although she was present on the second day, and affirmed, the Tribunal did not call her to give further evidence. The applicant submitted that her sister should have been recalled to give evidence on the second day of the hearing because:
a)her sister’s evidence was not finished when the hearing adjourned at the end of the first day; and
b)the Tribunal was concerned with what it believed to be inconsistencies between the accounts given by her and her sister so it should have sought clarification from her sister and not just from her.
The applicant submitted that her sister was the person best able to answer questions as to her state of mind and understanding of the matters she had described and which had led to what the Tribunal believed to be inconsistencies. The applicant submitted that the Tribunal denied her procedural fairness by not inviting her sister back into the hearing to expand on the evidence she had provided on the first hearing day and to explain why her evidence seemed inconsistent. She submitted that the Tribunal’s failure to recall her sister meant that she had not been able to properly put her case in relation to the perceived inconsistencies.
Consideration
The applicant’s allegation of a denial of procedural fairness in the first ground of her application is to be distinguished from the allegation of failure to comply with statutory obligations, specifically ss.424AA, 424A and 425 of the Act, found in the second ground of the application. This is made clear by the fact that in each ground of the application, the applicant particularises her allegations with references to the quality of the interpreter services at the Tribunal hearing. The first ground must therefore be understood to be an allegation that the Tribunal denied the applicant common law procedural fairness. However, the applicant did not suggest that, in the context of a Tribunal review, the relevant elements of the common law rules of procedural fairness survived the codifying effect of s.422B of the Act which relevantly provides:
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. …
Given the terms of s.422B, any rights to procedural fairness before the Tribunal which the applicant enjoyed were, relevantly for this case, those codified in the provisions of div.4 of pt.7 of the Act: Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62. In those circumstances the common law did not impose upon the Tribunal a procedural fairness requirement that it recall the applicant’s sister to give additional evidence.
The applicant referred to AZAAD v Minister for Immigration & Citizenship (2010) 189 FCR 494, however, that case is not authority for the proposition that the Tribunal is required to recall a witness so that he or she can explain the inconsistencies between their evidence and that of the applicant in question.
I find that the first ground of the application is not made out.
Failure to comply with statutory obligations – ss.424AA and 424A
Submissions
The applicant submitted that when the Tribunal purported to put information to her in accordance with s.424AA of the Act it failed adequately to explain why each part of the information was relevant and it also failed to give her an opportunity to respond to each piece of information at the time it was put to her. In this connection the applicant referred to the following passage at the fifty-sixth page of the comparative transcript of the second day of the hearing (T2.56):
T (English):Ok. All right. Ahmm … let’s see. In relation to the confiscation of your books at the airport, your sister said that you did not tell her about that, the confiscation until after the 25th of March 2008 incident.
I (Mandarin): Your younger sister said … about the books confiscated at the airport … you didn’t tell her about it. It was not until March 25th 2008, after the incident happened, that you told her about the books.
T (English):Whereas you said you had told her a few days after the books were confiscated.
I (Mandarin): But you said you already told your younger sister about it a few days after the books were confiscated.
T (English):Ok? And then …
A (Mandarin): Do I need to explain?
I (English):She asked whether she need to explain now.
T (English):Just take some notes, and then … about that … and I’ll come back to you.
I (Mandarin): You only need to take some notes. I will get back to you later.
T (English):Ok?
A (Mandarin): Ok.
T (English):The next point, just in relation to your husband’s questioning, your sister said she did not tell you about your husband’s interview until a few days after it occurred.
I (Mandarin): Your younger sister said she didn’t tell you about your husband’s [sic] being brought to the police station. She only told you about it a few days after this thing happened.
(T: Tribunal, I: Interpreter, A: Applicant)
The applicant also submitted that these matters were not adequately addressed in the Tribunal’s subsequent letter to her pursuant to s.424A.
Consideration
Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) …
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
Section 424AA provides:
424AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
I am not persuaded that the applicant has made out her allegation concerning s.424AA. At T2.54 the Tribunal explained its s.424AA obligations to the applicant. At T2.54 the Tribunal advised the applicant that it would seek her comments on the information it would put to her and that she could seek additional time to provide those comments. At T2.54-56 it put to her inconsistencies in the evidence. At T2.57 it advised the applicant why it thought that the information was relevant and the consequences of it being relied on. At T2.57 it asked the applicant if she wanted to respond to the points it had raised. The applicant then proceeded to comment on the information. At T2.88, following the completion of the applicant’s evidence, her adviser was asked whether he wanted to add anything and he then sought some time to provide written submissions, a request which was granted. He also made oral submissions at the hearing.
Consequently, and contrary to the applicant’s submissions, I find that the Tribunal complied with the notification requirements of s.424AA, with the result that it relevantly satisfied its obligations under s.424A: SZMMP v Minister for Immigration & Citizenship (2009) 174 FCR 514.
The applicant also submitted, on the basis that the Tribunal had not complied with s.424AA, that a letter sent after the hearing pursuant to s.424A of the Act could not overcome any failure to accord procedural fairness at the hearing. In this regard, she referred to SZIOZ v Minister for Immigration & Citizenship [2007] FCA 1870 at [59], where it was said:
I think reading the reasons of the delegate as a whole she did conclude and then proceeded on the basis that the appellant was a Falun Gong practitioner in China, albeit not one of interest to the authorities. The Tribunal did not advise the appellant at or before the hearing that that fact was in issue. The letter from the Tribunal sent after the hearing, it seems with its obligation in s 424A in mind, raises that issue but a letter after the hearing cannot satisfy the provisions of s 425(1) of the Act. The Tribunal failed to comply with the obligation in s 425(1). …
That passage demonstrates that SZIOZ is, in fact, not relevant to the present case because it concerned a failure to comply with s.425 of the Act, not a failure to comply with s.424A. The applicant also referred to SZJYA v Minister for Immigration & Citizenship (No. 2) (2008) 102 ALD 598 but, for the same reason, that case too is not supportive of the applicant’s submissions.
In any event, s.424A is not confined temporally. Written notification pursuant to that section may be provided after a Tribunal hearing just as well as before it.
The applicant also submitted that certain information which should have been notified to her was not notified to her at all, whether orally at the hearing or subsequently in writing. In this regard she referred to the Tribunal’s statement at para.215 of its reasons, where it referred to evidence which the applicant had given at the departmental interview and also at its hearing to the effect that she was “not so concerned” after her books had been confiscated by Chinese customs officials. The Tribunal went on to say that this purported lack of concern was not credible.
The applicant accepted that if the information was “put forward in the same way and [in] the same terms” at the Tribunal hearing as at the departmental interview then s.424A did not require that it be notified to her, an implied reference to s.424A(3)(b) and the line of authority of which SZESF v Minister for Immigration & Multicultural Affairs [2007] FCA 6 at [18] is part. The implication of that submission was that if the information was not “put forward in the same way and [in] the same terms” at the hearing as it was at the departmental interview then it was not governed by the exception to the operation of s.424A(1) found in s.424A(3)(b).
That is not correct. The issue is not how information is conveyed but whether it is conveyed. Indeed, as long as the information is provided to the Tribunal by the applicant, it does not matter that the Tribunal might also have obtained the same information from an entirely different source: SZCJD vMinister for Immigration & Multicultural& Indigenous Affairs [2006] FCA 609 at [42]. In this case the relevant information was the applicant’s alleged attitude to the confiscation of the books. The Tribunal made it plain in its reasons that this information was conveyed to it at its hearing. That being so, it fell within the scope of s.424A(3)(b) with the consequence that s.424A did not require that it be notified to the applicant even though she had also provided that information to the Minister’s department.
For these reasons, the applicant has not made out her allegations that the Tribunal breached ss.424A and 424AA of the Act
Failure to comply with statutory obligations – s.425
Submissions
The applicant submitted that the interpreter services provided by the Tribunal were inadequate in a number of ways. When analysed, those assertions can be reduced to allegations that:
a)the interpreter did not clearly and accurately interpret the evidence provided by the applicant and her sister;
b)the interpreter on the first hearing day was aggressive in her tone and in the way she dealt with the applicant;
c)although the applicant was in Sydney, the Tribunal member was in Brisbane and the hearing was conducted remotely. The interpreters were in Brisbane, rather than in Sydney, which failed to create an environment conducive to the applicant giving her evidence; and
d)the interpreter on the first hearing day, located in Brisbane with the Tribunal member, performed a simultaneous translation which made it difficult for the applicant to express herself. The interpreter talked over the applicant and her sister, interrupting their evidence.
The applicant submitted that her claim had been unsuccessful because the Tribunal found that she lacked credibility on a number of issues which it believed to be important. In this regard she submitted that the Tribunal had not been satisfied that her Yi Guan Dao books had been confiscated or that she had been detained. The applicant said that these conclusions were based on the following intermediate findings:
a)it was not credible that she did not enquire into the reason for the books’ confiscation or why they were banned;
b)her account of her detention was inconsistent and lacked detail;
c)her account at the departmental interview of the timing of her arrest and when she was released was different from her account at the Tribunal hearing;
d)at the departmental interview she first said that she was arrested, detained and questioned throughout the night by the same officers but, when queried, said that it had been different officers. She explained at the Tribunal hearing that she had been nervous at the departmental interview;
e)her written statement of 20 October 2010 said that her husband had received a call directly from the police requiring him to attend the police station whereas, at the Tribunal hearing, she said that he had received a telephone call from a company leader requiring him to attend the police station;
f)she and her sister gave contradictory accounts about when she informed her sister about the confiscation of the books, her detention and the police questioning of her husband;
g)her evidence and that of her sister concerning the book confiscation incident was inconsistent;
h)she said that she telephoned her sister about the detention the day after it occurred but her sister had difficulty remembering when she was told about it;
i)the accounts which she and her sister gave concerning the questioning of her husband were inconsistent in relation to how and when she became aware of that questioning;
j)she and her sister provided different accounts of when the latter told the former about Yi Guan Dao;
k)her evidence about whether she practised Yi Guan Dao in China was inconsistent. At the departmental interview she said that she did not practise in China at all but at the Tribunal hearing she said that she had practised some songs in China;
l)while she and her sister gave similar accounts of their first Yi Guan Dao practice together in Australia, her evidence lacked detail and credibility; and
m)her and her sister’s accounts of when the latter was a Yi Guan Dao practitioner were inconsistent.
Relevant law
The applicant argued that the comparative transcripts evidenced shortcomings in the Tribunal’s interpretation services serious enough to justify a conclusion that the Tribunal had failed to comply with s.425 of the Act. That section relevantly provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …
If an applicant is denied a real and meaningful opportunity to present his or her case because the Tribunal’s interpreter services are inadequate, leading for instance to the applicant and the Tribunal being unable to communicate effectively, then there will have been a breach of s.425 of the Act: SZJZS v Minister for Immigration & Citizenship (2008) 102 ALD 318 at 325 [30]ff.
However, an applicant’s opportunity to present his or her case effectively must be understood by reference to the terms of s.425, which is concerned with applicants being invited to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. The requirements of s.425 will not be satisfied if an applicant is denied an opportunity to address issues which are determinative of the review: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. Consequently, incorrect interpretation will amount to a breach of s.425 if it prevents an applicant from placing before the Tribunal evidence or arguments on such issues: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230; M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [51]; Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 at 595-597 [78]-[83] per Perram J.
Consideration
Transcript: day 1, page 4
The applicant referred to the following passage at the fourth page of the comparative transcript of the first day of hearing (T1.4):
T (English):And it’s an essential criteria that you would have to be found to be a refugee before a protection visa can be given.
I (Mandarin): Another criteria to grant your protection visa is to prove that you belong as a refugee.
T (English):So what that means is that I need to be satisfied that you meet the definition of refugee as defined in the United Nations Convention concerning the status of refugees.
I (Mandarin): In that case, in order to prove that you are a refugee, you must be satisfied that you meet the definition of refugee as defined in the United Nations Convention concerning the status of refugees.
T (English):That definition says that the refugee is a person who is afraid or who has fear.
I (Mandarin): That definition says that the refugee is a person who is afraid or who has fear.
T (English):And the fear must be well founded.
I (Mandarin): The fear must be well-founded.
T (English):What the refugee must be afraid of is that they could be persecuted.
I (Mandarin): What they are afraid of is that they will be persecuted.
T (English):And persecution means serious harm and must be systemic and discriminatory conduct.
I (Mandarin): And persecution means serious physical or mental harm or disaster.
…
T (English):Ok. The definition also states that the harm that the person fears must be from one or more of the five possible convention reasons.
I (Mandarin): And persecution the person suffers must be from one or two of five possible convention reasons.
The applicant submitted that the above passage established that:
a)the interpreter failed to interpret clearly and accurately the legal test she had to meet;
and that this was material to the Tribunal’s finding that:
b)it was not satisfied that she was a person to whom Australia had protection obligations under the Convention and that she did not satisfy the criterion under s.36(2)(a) of the Act.
The applicant submitted that it was a fundamental part of the Tribunal’s process that it properly explain the Convention test to applicants appearing before it, that an applicant understand what he or she needed to establish and that any description by the Tribunal of the Convention test should not be misleading. The applicant submitted that it was not necessary for her to demonstrate that she changed her presentation because of what the interpreter said. She said that the Tribunal should not actually mislead an applicant and that a breach of s.425 of the Act would be shown if the Tribunal misled her as to the substance of the Convention test.
It should first be stated that the Tribunal has no duty to advise an applicant of the content of the Convention test. The Act imposes no such obligation. Secondly, and subject to what follows, an applicant’s understanding of the Convention test is a matter for him or her. As the Tribunal has no obligation to provide advice on this subject, it logically falls to applicants to inform themselves of the criteria for the grant of a protection visa. Thirdly, it is possible that an applicant might be prevented or distracted from giving evidence or presenting arguments on issues relevant to the decision under review if he or she is misled by the Tribunal as to the content or meaning of the Convention test. Even if the Tribunal were to correctly describe the test, a faulty interpretation might nevertheless cause an applicant to be misled and thereby be denied the sort of hearing impliedly promised by s.425.
However, an erroneous interpretation is not, of itself, proof of a breach of s.425. Although it is presumed that an incorrect interpretation will mislead the person receiving the purportedly interpreted information, that is not necessarily the case. Put another way, a misinterpretation can be demonstrated to have been of no significance in the circumstances if an applicant has not been prevented or distracted from giving evidence or presenting arguments on issues relevant to the decision under review. That, I conclude, was the situation in this case. At all relevant times the applicant was represented by migration agents who were also solicitors and it can be assumed that she was provided with accurate advice on the Convention test. In such circumstances, I consider the presumption that an incorrect interpretation of the Tribunal’s expression of the Convention test misled the applicant to be displaced. In such circumstances, proof of breach of s.425 by reason of an incorrect interpretation required evidence that the applicant was, in fact, prevented or distracted by the interpretation from giving evidence or presenting arguments on issues relevant to the decision under review. No such evidence was adduced. Consequently, the applicant has not demonstrated that she was prevented or distracted from giving evidence or presenting arguments on issues relevant to the decision under review, with the result that she has not made out her allegation that the passage in question evidenced a breach of s.425 of the Act.
Transcript: day 1, page 18
The applicant referred to the following passage at T1.18:
T (English):Ok. All right. Ok. Now, you say that … you went back to China in February 2008 and that something happened at the airport in terms of your books that were taken from you, by customs?
I (Mandarin): You said you went back to China in February 2008. Something happened at the airport. You said your books were taken by the customs.
T (English): Could you tell me about that?
I (Mandarin): Could you tell me about the situation at that moment?
A (Mandarin): My sister bought me 3 books which are “The light of Mudao” “A way to relief” and “Experiencing the religion” when I went back. They were taken by the customs.
I (English):Yeah, aam, it was aam, they are … there were three books given by my sister … one is [inaudible] a gate … pathway to … to … the religion and then a to to to to the journey to redemption, and then the third one is about the experience of Yi Guan Dao. And they were all taken by the customs.
The applicant submitted that the interpreter had been guessing. She submitted that the above passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter failed to put the Tribunal’s questions to her and her sister, causing it to doubt their answers and leading it to make adverse findings as to the level of detail and manner in which she answered its questions on material issues;
d)the interpreter put questions to her not asked by the Tribunal; and
e)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that these matters were material to the Tribunal’s findings that:
a)it was not satisfied that Yi Guan Dao books had been confiscated from her in February 2008 or that she had been detained by authorities in March 2008 for a number of reasons;
b)she demonstrated limited knowledge of Yi Guan Dao philosophy, practice and rituals at the departmental interview and at the Tribunal hearing;
c)her and her sister’s evidence about when the book confiscation incident was relayed to her sister was inconsistent on the basis that she said that she told her sister a few days after the incident but before the 25 March detention; and
d)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
In order for the applicant to make out her allegation that the above passage demonstrated a breach by the Tribunal of its obligations under s.425, it was necessary that she demonstrate that the interpreter’s failure to translate the names of the books said to have been confiscated meant that she had been prevented from placing before the Tribunal evidence or arguments on a determinative issue.
It can be accepted that the interpreter’s translation of the final part of the above exchange was inadequate. However, the applicant did not identify a link between the erroneous interpretation and any of the findings referred to above at [55(a)-(d)] which might have suggested that the passage in question had relevance to an issue determinative of the review. In this regard, the Tribunal was not concerned by any perceived failure by the applicant to name the books which she said had been confiscated; as paras.103, 109ff and 213ff of its reasons make clear, its concern was with the applicant’s response to, and behaviour following, the alleged confiscation.
For those reasons, the inadequacies in the quoted interpretation did not prevent the applicant from placing before the Tribunal evidence or arguments on a determinative issue with the result that she has not made out her allegation that the passage in question evidenced a breach of s.425 of the Act.
Transcript: day 1, page 22
The applicant referred to the following passage at T1.22:
T (English):Aah, Ok. So do you … you told your sister that you had the books confiscated at the airport?
I (Mandarin): So you told your sister that your books were confiscated at the airport.
A (Mandarin): Yes.
I (English): Yes, it’s correct.
T (English):Ok. When did you tell your sister about these …
I (Mandarin): When did you tell your sister about this thing?
A (Mandarin): What?
I (Mandarin): When did you tell your sister about this thing?
A (Mandarin): After the next thing happened later, which happened between 20th and 29th of March after the police took people away. I told my sister. After this thing happened, I told my sister.
I (English):It was about … something happened, like on 22nd of March … which means [inaudible] and then I told my sister.
T (English):Ok, so then you told your sister about the 22nd of March?
I (Mandarin): So you told your sister this thing on 22 March, right?
A (Mandarin): Not on the 22nd, it was after the 25th of March, after the thing happened.
I (English):No, its not the 22ndof March … It’s after the 22nd of March, after … something happened …
T (English):Ok. All right. So you went back to China in February 2008, your books were taken in 2008 from customs. What did you think when the books were taken from you? Did they say anything to you?
I (Mandarin): When you went back to China in February, your books were seized at the airport. Did they ask you questions about where you got these books?
The applicant submitted that what she told her sister was a crucial part of the Tribunal’s credibility finding. She submitted that what she had been trying to say was not what the interpreter told the Tribunal and that the error in the interpretation flowed through into the Tribunal’s reasoning.
The applicant submitted that the above passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter gave evidence to the Tribunal on material issues not orally given by her or her sister;
d)the interpreter put questions to her not asked by the Tribunal;
e)the interpreter changed a critical date relating to when she told her sister about her detention in China;
f)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence;
g)the interpreter became aggressive in tone and in the way she dealt with her;
h)the tone and manner of the interpreter significantly affected her ability to provide evidence to the Tribunal; and
i)the interpreter appeared with the Tribunal member in Brisbane, without sufficient reason, when she was in Sydney, and therefore, the Tribunal failed to provide her an environment conducive to giving her evidence.
The applicant submitted that these matters were material to the Tribunal’s findings that:
a)it was not satisfied that Yi Guan Dao books had been confiscated from her in February 2008 or that she had been detained by authorities in March 2008 for a number of reasons;
b)her and her sister’s evidence about when the book confiscation incident was relayed to her sister was inconsistent on the basis that she said that she told her sister a few days after the incident but before the 25 March detention; and
c)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
However, in making those submissions, the applicant did not refer to the following exchange recorded at T1.25-27, which occurred shortly after the exchange she relied on:
T (English): Ok. So did you tell your sister?
I (Mandarin): Did you tell your younger sister?
T (English): And when did you tell your sister?
I (Mandarin): When did you tell your sister?
A (Mandarin): Aam, after those books were taken. But my sister did not pay attention to these things. She did not know those books were banned.
I (English):Aam … after those [inaudible] books were taken, I told my sister. Aaa, she didn’t paid [inaudible] … aaa [inaudible] aaa … attention too much because she didn’t know those books were banned in China as well.
T (English):Ok. So you told your sister straight after, like a few days afterwards, or you told her a month later? When did you tell her?
I (Mandarin): So after a few days later, you … Then … did you tell this thing to your sister a few months later?
A (Mandarin): No, just a few days later.
I (English): About a few days after.
T (English):Mhm. Ok, because earlier you said you didn’t tell your sister about the books being confiscated until sometime after the 25th March when you were questioned.
I (Mandarin): Because you said previously that you didn’t tell your sister about the confiscation of the books until after the 25th March when that thing happened.
A (Mandarin): What?
I (Mandarin): When you answered the Member’s questions, you mentioned that you didn’t tell your sister about the confiscation of the books until after the 25th March when you were questioned.
A (Mandarin): No. When I was at the police station, I told her … I told my sister … it was on March 25th, I told my sister. I called my sister after my books were confiscated.
I (English):Ahm … Ok … basically I said … ahm … I told my sister about the incidents … ahm … happening police … ahm with police … after 25th March … ahm … but the book was tooken [sic] away … ahm … by the customs officers ahm … was … told to her … ahm … about few days after the incident.
…
T (English):All right. Ok, so I think we finished with that you had … ahm … yeah we clarified [inaudible] that you had actually told your sister about the confiscation of the books … ahm … shortly after the books were confiscated at the airport.
I (Mandarin): So we just mentioned that … you said that you told your sister about the confiscation of the books shortly … a few days after the books were confiscated.
A (Mandarin): No, this thing was mentioned slightly … several days later, I did not know it was serious, … in March … I gave a detailed description to my sister when I realised the seriousness.
I (English): Well, I only knew …
A (Mandarin): A few days later.
I (English):First of all … ahm … I mentioned this incident to my sister … ahm … after … a few days after the … ahm … the book has been … ahm … taken … taken away but I didn’t pay much attention to those so I just … ahm … I just told my sister … ahm … my book was taken away but it was after the … ahm … March incident, police incident in March that I did describe in more detail about the book then to my sister.
At para.227 of its reasons the Tribunal stated that the evidence of the applicant and her sister concerning when the former told the latter about the books being confiscated was inconsistent. The Tribunal summarised the situation in these words:
The applicant said that she told her sister a few days after the incident but before the 25 March detention. The sister said she was not told until after the March incident.
That conclusion is based on the Tribunal’s understanding of the relevant evidence provided to it by the applicant and which it summarised at paras.109 and 114 of its reasons.
At para.109 of its reasons the Tribunal summarised in the following terms the passage from T1.22 relied on by the applicant:
Tribunal asked when the applicant told sister about books being confiscated. The applicant said something happened about the 22 March and then she told her sister.
At para.114 it summarised in the following terms the additional passage which I have quoted:
The applicant said she told her sister a few days after the books were confiscated but her sister did not pay attention because she didn’t know they were banned. The Tribunal asked if she told her sister a few days after the books were taken or a month later and the applicant said it was a few days after. The Tribunal clarified with the applicant if she told her sister about the confiscation before or after the 25 March police incident. The Tribunal pointed out that earlier she had said that she told her sister about the books confiscation after the March police detention incident. The applicant said she told her sister about the March police incident after 25 March. She said the books were taken away by the customs officers at the airport and she told her sister a few days after that.
In order for the applicant to make out her allegation that the passage from T1.22 demonstrated a breach by the Tribunal of its obligations under s.425, it was necessary that she demonstrate that the interpreter’s translation of “which happened between 20th and 29th of March” as “like on 22nd of March” and “25th of March” as “22nd of March” meant that she had been prevented from placing before the Tribunal evidence or arguments on a determinative issue.
However, the above discussion of the Tribunal’s summary of the evidence, and of more of the comparative transcript that appears at T1.22, discloses that the applicant was able to communicate to the Tribunal her revised version of events, namely that she told her sister about the book confiscation shortly after it happened and not after her detention. For that reason, the applicant has not made out a breach of s.425 of the Act in connection with the passage in question.
Transcript: day 1, pages 24-25
The applicant referred to the following passage at T1.24-25:
T (English):Ok. All right. Did you have any … did you think it was the books or did you think it was the religion that was the problem?
I (Mandarin): In your opinion, was it the books’ problems or religious problems that made the staff at the customs confiscate all your books?
A (Mandarin): What?
I (Mandarin): In your opinion, was it the books’ problems or religious problems that made the staff at the customs confiscate all your books?
A (Mandarin): I think they might have doubted that I had already joined Yi Guan Dao. Because these books with Yi Guan Dao … in Yi Guan Dao …talked about principles of Yi Guan Dao. Principles.
I (English):I … I … I think they might be suspicious … I had already been involved to Yi Guan Dao [inaudible] because the content of these books all about Yi Guan Dao principles.
T (English):Ok. So you were suspicious but you thought there was a problem with being the member of the religion at that point?
I (Mandarin): So at that time, they doubted that you were the member of Yi Guan Dao so they took these books away.
The applicant submitted that it could be seen in that passage that she had been struggling to make her point and that the Tribunal had not heard what she had been trying to say.
A fair reading of the interpreter’s translation does not support a conclusion that it was incorrect but indicates instead that it was a reasonable interpretation from one language to another of the meaning which the applicant sought to convey. But in any event, the misunderstanding manifested by the Tribunal’s comment “So you were suspicious” owed nothing to the translation but arose from the Tribunal itself. The relevant translation was to the effect that the police might have been suspicious but the Tribunal incorrectly understood the interpreter to have said that it was the applicant who had been suspicious.
For that reason, the applicant has not demonstrated the passage in question evidenced a breach by s.425 of the Act.
Transcript: day 1, page 26
The applicant referred to the following passage at T1.26, already referred to above at [62]-[66]:
A (Mandarin): No. When I was at the police station, I told her … I told my sister … it was on March 25th, I told my sister. I called my sister after my books were confiscated.
I (English):Ahm … Ok … basically I said … ahm … I told my sister about the incidents … ahm … happening police … ahm with the police … after 25th March … ahm … but the book was tooken [sic] away … ahm …. by the custom officers ahm … was … told to her … ahm … about few days after the incident.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter gave evidence to the Tribunal on material issues not orally given by her or her sister;
d)the interpreter changed a critical date relating to when she told her sister about her detention in China; and
e)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)it was not satisfied that Yi Guan Dao books had been confiscated from her in February 2008 or that she had been detained by authorities in March 2008 for a number of reasons;
b)her and her sister’s evidence about when the book confiscation incident was relayed to her sister was inconsistent on the basis that she said that she told her sister a few days after the incident but before the 25 March detention; and
c)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
The passage quoted by the applicant must be seen in the context of the line of questioning in which it appears. When considered with the rest of the relevant passage found at T1.25-27 quoted above at [62], any hesitancy or lack or articulateness on the part of the interpreter can be seen to be of no significance because the Tribunal understood what was being said to it.
Further, and particularly in view of the Tribunal’s finding that she was neither unintelligible nor incapable of constructing a coherent sentence, the applicant did not advance a cogent reason for concluding that any difficulties which the interpreter may have had in expressing herself, particularly when manifested by pauses and hesitations, would be attributed to her, the applicant.
For those reasons, the applicant has not made out her allegations in connection with the exchange in question.
Transcript: day 1, page 28
The applicant referred to the following passage at T1.28:
T (English):Ok, so you were detained on the 26th you rang her on the 26th?
I (Mandarin): So … you were brought away by police on 25th, and then you rang her up on the 26th, right?
A (Mandarin): Yes.
I (English): Yes, correct.
The applicant submitted that in that exchange she believed she had been asked about a sequence of events in which she was detained on the 25th and called her sister the next day, the 26th, while the Tribunal believed that it was being told that she was detained on the 26th and rang her sister on the same day. The applicant submitted that these facts were critical to the Tribunal’s reasoning, in that it did not believe that the detention happened because the sisters’ accounts did not correspond. The applicant submitted that the passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter failed to put the Tribunal’s questions to her and her sister, causing it to doubt their answers and leading it to make adverse findings as to the level of detail and manner in which she answered its questions on material issues;
d)the interpreter put questions to her not asked by the Tribunal;
e)the interpreting services caused her to answer questions not put to her by the Tribunal;
f)the interpreter changed a critical date relating to when she told her sister about her detention in China;
g)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence;
h)the interpreter became aggressive in tone and in the way she dealt with her; and
i)the tone and manner of the interpreter significantly affected her ability to provide evidence to the Tribunal.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)it was not satisfied that Yi Guan Dao books had been confiscated from her in February 2008 or that she had been detained by authorities in March 2008 for a number of reasons;
b)her and her sister’s evidence about when the book confiscation incident was relayed to her sister was inconsistent on the basis that she said that she told her sister a few days after the incident but before the 25 March detention; and
c)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
In order for the applicant to make out her allegation that the above passage demonstrated a breach by the Tribunal of its obligations under s.425, it was necessary that she demonstrate that the interpreter’s failure to translate the Tribunal’s understanding of the date when she was detained meant that she had been prevented or distracted from placing before the Tribunal evidence or arguments on a determinative issue. To make that out, the applicant had to prove that the date of her detention was an issue in the case and that it was of determinative significance.
Importantly for this question, the applicant’s submissions in relation to this passage from the comparative transcript misrepresented the Tribunal’s reasoning. In para.228 of its decision record the Tribunal said:
… the Tribunal does not accept that if the applicant had told the sister of the detention the day of her release, that the sister would not have recalled that she was told immediately after the event. In addition, given the significance of such an event, the Tribunal does not accept that the applicant and the sister would not have at least consistent accounts as to who telephoned whom about such news.
As that passage from its reasons demonstrates, the Tribunal’s concerns regarding the inconsistencies in the two sisters’ evidence did not turn upon specific dates but upon the fact that the applicant’s sister could not remember when she was told that the applicant had been detained. The Tribunal did not accept that it was credible that the applicant’s sister would not remember something of such importance or that the sisters’ recollections would not coincide.
In any event, the Tribunal was not confused about the dates in question. At para.228 of its reasons it said:
Secondly, in relation to reporting of the detention incident, the applicant said she phoned her sister about the detention the next day, being March 26. …
For these reasons, the applicant has not demonstrated that the exchange in question amounted to a breach of s.425.
Transcript: day 1, page 31
The applicant submitted that a further mistranslation of dates occurred later in the hearing, recorded at T1.31:
T (English):All right. Ahm … what I’m trying to understand is, you had … ahm … hang on [inaudible] … is … ahm … just to summarise what you told me, ok? You told me that you were detained on the 26th of March. You telephoned your sister on the 26th of March, You told her about the …ahm … what happened at the police station. Your sister was surprised. Your sister didn’t know that the religion was banned. Ahm … what I want to know is, after that discussion, did you talk about what should happen or what you should do?
I (Mandarin): Now the member is going to summarise what you told us. You were brought to the police station on the 25th by police, and then you rang your sister on the 26th telling her what had happened at the police station. Your sister was shocked because she didn’t know this religion was banned in China. Then … did she tell you what you should do next after this conversation?
The applicant submitted that there she and the Tribunal were again dealing with different dates and that this had been critical to the Tribunal’s reasoning in that it did not believe that she had been detained because her account and that of her sister did not correspond. The applicant submitted that the passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter failed to put the Tribunal’s questions to her and her sister, causing it to doubt their answers and leading it to make adverse findings as to the level of detail and manner in which she answered its questions on material issues;
d)the interpreter put questions to her not asked by the Tribunal;
e)the interpreting services caused her to answer questions not put to her by the Tribunal;
f)the interpreter changed a critical date relating to when she told her sister about her detention in China;
g)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence;
h)the interpreter became aggressive in tone and in the way she dealt with her; and
i)the tone and manner of the interpreter significantly affected her ability to provide evidence to the Tribunal.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)it was not satisfied that Yi Guan Dao books had been confiscated from her in February 2008 or that she had been detained by authorities in March 2008 for a number of reasons;
b)her and her sister’s evidence about when the book confiscation incident was relayed to her sister was inconsistent on the basis that she said that she told her sister a few days after the incident but before the 25 March detention; and
c)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Again, the relevant part of the Tribunal’s decision, quoted above at [79] was not concerned with dates but with more substantive problems with the applicant’s account of events, specifically whether she told her sister of the confiscation of the books before or after she was detained. The date of the detention was not relevant to that issue.
For those reasons, the applicant has not made out her allegations in connection with the exchange in question.
Transcript: day 1, page 37
The applicant referred to the following passage at T1.37:
T (English):Ok. But what I’m asking is when was it that your father rang your sister about your husband being detained?
I (Mandarin): She asked when your father called your sister and told her that your husband was required for questioning.
A (Mandarin): Aamm … you meant my father, didn’t you?
I (Mandarin): When did he call your sister telling her that your husband was asked for questioning?
A (Mandarin): Exact date, it seems it was the 17th … 19th …after the incident or the 18th … I cannot remember.
I (English):I … I can’t remember clearly … ahm …[inaudible]
The applicant submitted that the Tribunal made findings that her account lacked detail and was vague and yet, she submitted, the interpretation contributed to that vagueness and lack of detail.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreting services caused her to answer questions not put to her by the Tribunal;
c)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence;
d)the interpreter became aggressive in tone and in the way she dealt with her; and
e)the tone and manner of the interpreter significantly affected her ability to provide evidence to the Tribunal.
The applicant submitted that those matters were material to the Tribunal’s finding that:
a)it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
In order for the applicant to make out her allegation that the above passage demonstrated a breach by the Tribunal of its obligations under s.425, it was necessary that she demonstrate that the interpreter’s failure to translate the dates she cited, in circumstances where she also said that she could not remember the relevant date exactly, meant that she had been prevented from placing before the Tribunal evidence or arguments on a determinative issue.
The Tribunal made only one reference to the applicant being vague, which was at para.220 of its reasons. In that paragraph it said that her description of her arrest, what was said to her, how the arrest occurred and what her parents did, was vague and lacked detail. Later, in para.244 of its reasons, the Tribunal stated that the applicant’s evidence of her practice of Yi Guan Dao lacked detail. It is apparent that the passage quoted above at [86] is unrelated to either of those issues. Moreover, the interpretation in question must be seen in its context. Immediately before the passage in question, the following exchanges are recorded as having occurred:
T (English):Ok. All right. So … your sister was told about your husband’s detention by your father and your husband. Who was the first person to tell your sister?
I (Mandarin): That means your sister knew about your husband’s questioning through your father and your husband. Who first told your sister about it? Your husband or your father?
A (Mandarin): I don’t know. It seems it was my father and after that my husband talked about this.
I (English):[inaudible] detail … I … maybe it’s my father who told my sister first and then my husband told her about it but [illegible] [sic].
T (English):Ok. All right. [inaudible] so that was … they rang on the 19th, did they?
I (Mandarin): So did they make a call on the 19th?
A (Mandarin): No, it was the 18th … because on the 18th, the Party Secretary informed me that my husband was required for questioning on the 19th. It was the night of 18th.
I (English):[inaudible] it’s actually in the evening of the 18th that the … ahm … the … ahm … company … ahm … told my husband … ahm … asked him to be questioned the next day.
From that, it can plainly be seen that the interpreter’s failure in the exchange from T1.37, relied upon by the applicant, to translate the dates in question was of no significance. As the Tribunal put it at para.126 of its reasons:
The Tribunal said it was not concerned with the specific dates but whether she could recall if she knew that her husband was to be questioned or if she was told about it after he had been questioned.
Consequently, on the facts, this aspect of the allegation is not made out.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)it was not satisfied that Yi Guan Dao books had been confiscated from her in February 2008 or that she had been detained by authorities in March 2008 for a number of reasons;
b)her and her sister’s evidence about when the book confiscation incident was relayed to her sister was inconsistent on the basis that she said that she told her sister a few days after the incident but before the 25 March detention; and
c)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 1, page 36
The applicant referred to the following passage at T.1.36:
T (English):I just guess I find it surprising that your husband has been questioned about something you were doing and yet you don’t want talk [sic] to him about it and find out more about it and at least see how he is.
I (Mandarin): Member thinks it is unconvincing because your husband was questioned and the reason was that you believed in this religion, why you were still … trying to avoid talking to your husband? She wants to know more about what happened exactly?
A (Mandarin): All through my sister. Because it was much easier for her to communicate with my husband … more …
I (English):Because my sister … ahm … [inaudible] … him more … because I’m scared.
A (Mandarin): I didn’t want to bring him trouble.
I (English):I’m scared that I will bring … ah … him more trouble.
The applicant pointed out how inaccurate this part of the interpretation had been and submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter failed to put the Tribunal’s questions to her and her sister, causing it to doubt their answers and leading it to make adverse findings as to the level of detail and manner in which she answered its questions on material issues;
d)the interpreter put questions to her not asked by the Tribunal;
e)the interpreting services caused her to answer questions not put to her by the Tribunal;
f)the interpreter became aggressive in tone and in the way she dealt with her;
g)the tone and manner of the interpreter significantly affected her ability to provide evidence to the Tribunal; and
h)the interpreter appeared with the Tribunal member in Brisbane, without sufficient reason, when she was in Sydney, and therefore, the Tribunal failed to provide her an environment conducive to giving her evidence.
The applicant submitted that those matters were material to the Tribunal’s finding that:
a)it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 1, pages 42-44
The applicant referred to the following passage at T1.42-44 where her sister’s evidence was recorded:
T (English):Ok. All right. Ahm … I’m just [inaudible] from you ... ahm … when you started your … the Yi Guan Dao religion and how you developed that in … in understanding that religion.
…
A’s sister (Mandarin): The second week after this incident, I came to know the violin tutor of my son whose name is [XB].
I (English):After this … [inaudible] … the second week … I knew ah the teacher of my son’s [inaudible] … the violin teacher of my son whose name is [XB].
A’s sister (Mandarin): [XB] had been practising Yi Guan Dao for a long time, and felt sympathetic after hearing my suffering. Then … he said he would introduce a religion to me to heal my wound.
I (English):[XB] has been practising Yi Guan Dao for a long time after hearing my story [XB] said … ahm … I would like to introduce you … ah … a religion that might heal your wound.
A’s sister (Mandarin): Then I went attending the teachings every week, after listening, I felt like … I was told in the sessions that … human fate was doomed, if you encountered the disaster in your current life, it may be because your before life was indebted. So gradually I became relived [sic] in terms of the marriage, I became relived [sic] of the trauma the breakdown of marriage had brought me.
I (English):Ahm … after that I … ah … went to lesson the … ahm … sermon every week … ahm. In heard that … ahm … they say people have disasters at this lifetime its because they have … ahm …. they have something that … ahm … [inaudible] … haven’t been paid … ahm … ah … [inaudible] or something like that in their prime life. After hearing this … [inaudible] … relief from my broken marriage.
A’s sister (Mandarin): Then I went there every week. I listened to different teachings every time, but they all encouraged people to … cultivate … aamm … to improve themselves. I mean spiritual life … changing your own destiny by being kind to others and keeping doing good deeds.
I (English):And then, after that ….ahm … I went to there almost every week and hearing different … ahm …sermons. The major thing is about like … ahm how to improve your … ah … life … ahm … your life quality and how to improve your spiritual life and be kind to everyone and do good thing to other people.
A’s sister (Mandarin): Later, a Taiwan couple from Taiwan gave teachings. They said that Dao was good and it was good for children to study Dao. Practicing [sic] Dao could change your fate and we should share things with people around us and the whole world.
I (English):So, yes it was once a time that a couple … ahm … from Taiwan … ah … made a speech … ahm … in a temple and telling us that … ah … ahm … the religion, this religion is a good thing … ahm … cause [inaudible] religious chi … children …. ahm … don’t go bad, they … ahm … the religion can change your fate and it will bring good stuff to people’s life.
The applicant submitted that the interpreter was just guessing. She submitted that the portion of the above quotation prior to the reference to the couple from Taiwan established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing; and
c)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)her and her sister’s accounts of when her sister was an Yi Guan Dao practitioner were inconsistent; and
b)it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
In the relation to that passage in the above quotation concerning the couple from Taiwan the applicant submitted that it established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing; and
c)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)her and her sister’s accounts of when her sister was an Yi Guan Dao practitioner were inconsistent; and
b)it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 1, pages 47-48
The applicant referred to the following passage at T1.47-48
I (Mandarin): Your sister arrived in Australia in 2007. Tell us how you introduced Yi Guan Dao to her.
A’s sister (Mandarin): I brought her to the temple every week, every weekend. Sometimes on Saturday, sometimes on Sunday.
I (English):So every Saturday, either Saturday or Sunday I would bring her to temple.
T (English):Mhm. Can you tell me about the first time you took her to the temple?
I (Mandarin): Can you describe the first time you brought her to the temple?
A’s sister (Mandarin): The first time … we entered …
I (English): First time it was October.
A’s sister (Mandarin): The fellow practitioners were very friendly.
I (English):All other all other … congregations welcomed her, friendly.
A’s sister (Mandarin): Then they passed towels to her to clean her hands.
I (English): And …
A’s sister (Mandarin): They brought her a pair of clean slippers.
I (English):[inaudible] towel to wash her hand. And then [inaudible] pair of [inaudible] …
T (English):Mhm. So you and your sister went. Did anyone else go?
I (Mandarin): Only you and your sister? Nobody else going with you?
A’s sister (Mandarin): I think my kids did. Because I often brought my kids there.
I (English): I …
A’s sister (Mandarin): Probably I also brought my kids there.
I (English): I should bring my [inaudible]
A’s sister (Mandarin): Sometimes … sorry … sometimes … sometimes my little son wouldn’t go.
I (English): [inaudible] some song.
A’s sister (Mandarin): But …
I (English):Sometimes I bring my children to the temple, sometimes [inaudible]
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing; and
c)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)her evidence about her Yi Guan Dao practice in Australia was inconsistent, lacked credibility and displayed limited understanding of Yi Guan Dao;
b)it did not accept that she practised Yi Guan Dao in 2007 in Australia as claimed because her evidence lacked detail and credibility; and
c)her and her sister’s accounts of when her sister was an Yi Guan Dao practitioner were inconsistent.
Transcript: page 1, pages 50-51
The applicant referred to the following passage at T1.50-51
T (English):[inaudible] all right. And you went there nearly every week, either on Saturday or Sunday?
I (Mandarin): You went there on Saturdays or Sundays, almost every week.
A’s sister (Mandarin): Yes.
T (English):Ok. So your sister was here from August until February 2008. Did you go every week?
I (Mandarin): So your sister came here in August … until February of 2008, then … did she go there every week during this period of time?
A’s sister (Mandarin): Oh, no. When the master went back, when the lease contract expired … after finishing cleaning … when the master went back, our assembly stopped temporarily.
I (English):Now, once the master went back to Taiwan and the rent of the house terminate, we stop practicing [sic].
T (English): Ok. When was that?
I (Mandarin): When was that? He went back, then the lease contract expired.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing; and
c)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)her and her sister’s accounts of when her sister was an Yi Guan Dao practitioner were inconsistent; and
b)it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 1, page 59
The applicant referred to the following passage at T1.59:
A’s sister (Mandarin): He said that his leader had a conversation with him and told him to go to the [AB] police station the next day.
I (English):He told me that the leader in his company aaa asked him to … go to police station the next day, [A] [inaudible] police station.
T (English):Why the [A] police station?
I (Mandarin): Why the [AB] police station?
A’s sister (Mandarin): Ammm … because that place’s name was [AB], which was governed under the [AB] police station.
I (English):Because the area we were living in am aaam like a … [inaudible] [AB] police station.
A’s sister (Mandarin): Our household register was registered at that police station.
I (English):[inaudible] and is in that place, actually, it’s registered under that police station.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing; and
c)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that those matters were material to the Tribunal’s finding that:
a)it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 1, page 60
The applicant referred to the following passage at T1.60:
T (English):Ok. All right. So you had a conversation with your brother in law, you told him to go the interview, um did you talk to your sister about it?
I (Mandarin): So you talked to your brother-in-law over the phone and talked about something here, then you passed on these things to your sister?
A’s sister (Mandarin): I had the impression that I concealed something.
I (English):I … I recall I didn’t tell her everything.
A’s sister (Mandarin): I was afraid that she would be worried because she is very timid.
I (English):I was afraid she would be so worried because she is very timid.
Comment: [A’s sister] and I speaking at the same time.
T (English):So did you tell her that he was going to be questioned?
Comment: [A’s sister] and I speaking at the same time.
I (Mandarin): So you did not tell your sister that she would be questioned by the police then?
A’s sister (Mandarin): I remember that I protected my sister in my mind at that time. It seems ... that I told her. I cannot remember the exact date.
I (English):[inaudible] sorry about this but I can’t remember the exact date and when I told her about it.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing; and
c)the interpreter interpreted simultaneously talking over her and her sister constantly interrupting their evidence thereby denying them an opportunity to freely give their evidence.
The applicant submitted that those matters were material to the Tribunal’s finding that:
a)it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 2, pages 8-9
The applicant referred to the following passage at T2.8-9:
T (English):Are … are you understanding the interpreter at the moment?
I (Mandarin): Do you understand us now?
A (Mandarin): Yes
T (English):Interpreter, if you have any difficulties, just let me know as well please. OK. All right. Well, look. I just want to summarise where I think we’re at. At the last hearing, we spoke to you, [SZQIF] about most things although we haven’t yet dealt with your detention experience and we haven’t dealt with your Yi Guan Dao practice on the second on the, in 2009.
I (Mandarin): She said that during the last interview, we did not talk about your experience at the detention centre, right?
A (Mandarin): What?
I (Mandarin): The judge said that during the last interview, we … you did not talk about your experience in 2009, about Yi Guan Dao.
T (English):Ok, so in summary I think we’ve established that ahm we say you were detained on the 25th of March 2008, that your sister told you that she was a Yi Guan Dao practitioner when she visited you in China in 2006.
I (Mandarin): You said on 25 March, 2008, you were the executor of Yi Guan Dao, right?
A (Mandarin): What …
I (Mandarin): On 25 March, 2008, did you believe in Yi Guan Dao?
A (Mandarin): At that time, I had not believed in Yi Guan Dao, but I did attend teachings.
I (Mandarin): You attended teachings.
A (Mandarin): Yes.
I (Mandarin): Then in 2006, did your elder sister … I don’t know your elder sister or your younger sister … go to visit you?
A (Mandarin): At the beginning of 2006.
I (Mandarin): Year 2006.
A (Mandarin): Went home, went to her mother’s home.
I (Mandarin): Yes, went to her mother’s home.
I (English):Yes
T (English):Ok, just … you need to translate, even if she’s in between doing bits and pieces, just translate in between, because you are saying a lot and we are not hearing a lot.
A’s adviser (English): Yes.
I (English):Ok.
T (English):Ok? So, you need to, I know you want to clarify but you need to let us know if you are clarifying, Ok?
A’s adviser (English): Yes, make sure you translate, your job is to translate, you know, every word that’s said is readable.
T (English):Well, it’s the idea of concept we want.
The applicant submitted that the Tribunal was wrong to make the latter comment and that, as far as possible, a word-for-word translation was required, not simply communication of the idea or concept which an applicant was seeking to make.
The applicant submitted that that passage established that:
a)the Tribunal misdirected the interpreter as to her role at the hearing;
b)the interpreter did not clearly and accurately interpret the evidence she and her sister provided; and
c)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing.
The applicant submitted that those matters were material to the Tribunal’s finding that:
a)her evidence about her Yi Guan Dao practice in Australia was inconsistent, lacked credibility and displayed limited understanding of Yi Guan Dao.
Transcript: day 2, pages 12-13
The applicant referred to the following passage at T2.12-13:
T (English):Ok, it’s because I want to understand aahm, why it took so long for you to tell me that your, your sister had recommenced practice in March 2008.
I (Mandarin): During the last interview, you did not tell us this so I want to know why you tell us now that your sister told you … told you in March 2008 that you might recommence attending teachings in March. Why didn’t you say this last time?
Unknown: Because when I look back …
A (Mandarin): Last time …
I (Mandarin): During the last interview …
A (Mandarin): I asked this last time, it seems …
I (Mandarin): Last time, you did not tell then … your elder sister …
A (Mandarin): My younger sister.
I (Mandarin): Oh, your younger sister.
A (Mandarin): Yes.
I (Mandarin): You did not tell them.
I (English): Only men met.
T (English): Ok, you want to just translate?
A (Mandarin): It seems I said so.
I (English): She said that she had answered that question …
T (English):Ok, I know you answered that question at the last hearing but I just want to clarify some points in that regard.
I (Mandarin): She said that it doesn’t matter. She wants to … ask you … let you clarify some points in this regard.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter failed to put the Tribunal’s questions to her and her sister, causing it to doubt their answers and leading it to make adverse findings as to the level of detail and manner in which she answered its questions on material issues;
d)the interpreter put questions to her not asked by the Tribunal; and
e)the interpreting services caused her to answer questions not put to her by the Tribunal.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)it did not accept that she practised Yi Guan Dao in 2007 in Australia as claimed because her evidence lacked detail and credibility;
b)her and her sister’s accounts of when her sister was an Yi Guan Dao practitioner were inconsistent; and
c)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 2, pages 13-14
The applicant referred to the following passage at T2.13-14:
T (English):But ahmmm … about the the … the third or fourth question again I asked you ahmmm, whether you knew when your sister recommenced Yi Guan Dao, you did then tell me it was in March when the master came back.
I (Mandarin): So when I asked you the third or fourth time … your elder sister … I also asked whether your sister recommenced attending teachings … you then still did not tell me. You still said that your elder sister did not tell you when she started this thing.
T (English):So can you … I’m just a bit concerned how long it took you to tell me that and on a number of occasions said you didn’t know. Can you just explain why that might have happened?
I (Mandarin): So, because I asked you many times before and you always said that you did not know. Then you now tell us that in March your sister told you that she would recommence attending teachings in March so I want you to explain now why it took you so long to tell me this.
A (Mandarin): It has been a long time and has been a few years.
I (English): She said …
A (Mandarin): I feel a little bit confused because you kept asking.
I (English):She said because that that the the the … it was many years ago so when you asked her, at the time, during the hearing, she maybe a little bit nervous she didn’t remember.
T (English):Ok, all right, that Ok all right. And look, at any stage if you don’t remember and need more time to think about it, by all means, say so.
I (Mandarin): Next time you recall something that happened before, if you cannot remember something because of nervousness due to the questioning of judge or because of other reasons, you must tell her that you may not remember it clearly.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter failed to put the Tribunal’s questions to her and her sister, causing it to doubt their answers and leading it to make adverse findings as to the level of detail and manner in which she answered its questions on material issues;
d)the interpreter put questions to her not asked by the Tribunal;
e)the interpreting services caused her to answer questions not put to her by the Tribunal; and
f)the interpreting services caused the Tribunal to become confused as to her and her sister’s evidence, causing it to doubt their evidence.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)her evidence about her Yi Guan Dao practice in Australia was inconsistent, lacked credibility and displayed limited understanding of Yi Guan Dao;
b)it did not accept that she practised Yi Guan Dao in 2007 in Australia as claimed because her evidence lacked detail and credibility;
c)her and her sister’s accounts of when her sister was an Yi Guan Dao practitioner were inconsistent; and
d)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
Transcript: day 2, pages 15-16
The applicant referred to the following passage at T2.15-16:
T (English):Ok. We talked about the history Yi Guan Dao because you told me about … it commenced after the Qin Dynasty and that communist party started to prosecute their legends in 1950 and banned it in 1951 and that 130 people were killed in Beijing within 2 months. That’s what I meant by history and you told me …
I (Mandarin): The judge said it was the history because you told the judge that Yi Guan Dao was established from Qin dynasty. After the establishment of the Chinese Communist Party, it recommenced in 1950. But it was banned in 1955 and about 130 people were killed in Beijing within two months. Is it right?
A (Mandarin): No it was in 1950. In 1950, the Chinese communist party decided to ban Yi Guan Dao. And for the rest … you said 1950 … 1951.
I (Mandarin): Yes
A (Mandarin): 1950
I (Mandarin): 1950, yes.
A (Mandarin): The same year … December … right right.
T (English): Ok, let’s translate.
I (English):She said , she said … this is the history, clarify … clarified to me some … year …
T (English):Yeah, Ok. And … You recall telling the tribunal about the history of Yi Guan Dao, which was just presented?
I (Mandarin): So what you said is about the history of Yi Guan Dao?
A (Mandarin): This history … it said that after … after the thing that happened in March, my younger sister checked online.
I (English):She said this is true we know because after the thing happened in March, she heard her sister [inaudible] on line.
T (English): Mhm … Ok.
The applicant submitted that that passage established that:
a)the interpreter did not clearly and accurately interpret the evidence she and her sister provided;
b)the interpreter failed in her role from the commencement of the hearing and the failure to provide adequate services continued throughout the hearing;
c)the interpreter failed to put the Tribunal’s questions to her and her sister, causing it to doubt their answers and leading it to make adverse findings as to the level of detail and manner in which she answered its questions on material issues;
d)the interpreter put questions to her not asked by the Tribunal;
e)the interpreting services caused her to answer questions not put to her by the Tribunal; and
f)the interpreter changed a critical date relating to when she told her sister about her detention in China.
The applicant submitted that those matters were material to the Tribunal’s findings that:
a)her evidence about her Yi Guan Dao practice in Australia was inconsistent, lacked credibility and displayed limited understanding of Yi Guan Dao;
b)it did not accept that she practised Yi Guan Dao in 2007 in Australia as claimed because her evidence lacked detail and credibility;
c)her and her sister’s accounts of when her sister was an Yi Guan Dao practitioner were inconsistent; and
d)having considered the above together, it did not accept that she or her sister had told the truth about the book confiscation, her detention or her husband’s questioning, concluding that their accounts lacked credibility and were inconsistent.
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