SZQIF v Minister for Immigration, Multicultural Affairs and Citizenship

Case •

[2013] FCA 919

•

18 September 2013

FEDERAL COURT OF AUSTRALIA

SZQIF v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 919

Citation: SZQIF v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 919
Appeal from: SZQIF v Minister for Immigration & Anor [2013] FCCA 24
Parties: SZQIF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number: NSD 741 of 2013
Judge: JACOBSON J
Date of judgment: 18 September 2013
Catchwords: MIGRATION – Refugee Review Tribunal – alleged inadequacy of translation service provided by Tribunal –whether Tribunal erred in failing to recall appellant’s sister to address inconsistencies given in oral evidence – no denial of procedural fairness
Legislation: Migration Act 1958 (Cth)
Cases cited: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Khan v Minister for Immigration & Citizenship (2011) 192 FCR 173
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252
SZJZS v Minister for Immigration & Citizenship (2008) 102 ALD 318
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
Date of hearing: 14 August 2013
Date of last submissions: 14 August 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 79
Solicitor for the Appellant: Mr R Turner of Turner Coulson Immigration Lawyers
Solicitor for the First Respondent: Ms S Given of Minter Ellison
Solicitor for the Second Respondent: Filed a Submitting Notice on 13 May 2013

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 741 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZQIF
Appellant
AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

18 SEPTEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The name of the First Respondent in the Notice of Appeal filed 3 May 2013 be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2.The appeal be dismissed.

3.The Appellant pay the First Respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 741 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZQIF
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

JACOBSON J

DATE:

18 SEPTEMBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. The appellant is a citizen of the People’s Republic of China who claims to have a well-founded fear of persecution in that country by reason of her practice of the Yi Guan Dao religion.  She made a number of evidentiary claims in support of her claimed fear.  Her evidence included claims that her Yi Guan Dao books had been confiscated, that she had been arrested and detained, and that while she was in Australia her husband, who was still in China, had been arrested and questioned. 

  2. The Refugee Review Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa.  The Tribunal’s reasons for its decision were very detailed and rested ultimately on its findings that the appellant’s evidence lacked credibility

  3. The appellant’s sister gave evidence before the Tribunal in support of the appellant’s claims.  The sister’s evidence included an account of the details of how she and the appellant first learned about the questioning of the appellant’s husband.  The Tribunal found that the accounts given by the appellant and her sister lacked credibility and were inconsistent.

  4. The appellant and her sister gave their evidence in Mandarin with the assistance of a Mandarin interpreter.  The appellant was represented in the Tribunal by an experienced migration agent who is a practising solicitor.  The hearing took place on two non-consecutive days.  During the break between those days the agent wrote to the Tribunal raising concerns about the interpretation and requesting a fresh hearing. 

  5. The Tribunal referred to the agent’s concerns at the commencement of the second day of the hearing.  It took steps to address the concerns and then proceeded with the hearing. 

  6. The appellant’s sister, who gave evidence on the first day of the hearing, was present when the hearing resumed on the second day.  She was affirmed but not called to give further evidence.

    THE COURT BELOW

  7. The appellant sought judicial review in the Federal Magistrates Court (now the Federal Circuit Court of Australia). The grounds of review included a claim of failure to comply with s 425 of the Migration Act 1958 (Cth) (the Act) by failing to have the appellant’s evidence adequately interpreted.  The appellant’s attack on the adequacy of the translation included more than 207 transcript references.

  8. The judicial review application also relied upon what was said to be a denial of procedural fairness, by reason of the Tribunal’s failure to recall the sister to give evidence on the second day of the hearing to comment upon inconsistencies in the evidence given by her and the appellant.

  9. In addition, the appellant relied upon what was said to be an inaccurate translation of the test for refugee status under the Convention relating to the Status of Refugees 1951 (Convention).  This was because, although the Tribunal member stated the test accurately as a fear that the person “could be persecuted”, the translation was a fear that the person “will be persecuted”. 

  10. The Circuit Court Judge dismissed the application in a detailed and comprehensive judgment.  He dealt with the principal aspects of the application in the body of his judgment.  His Honour considered the additional transcript references in a very detailed annexure commencing at page 54 of the judgment.

  11. The appellant appeals from the Circuit Court Judge’s orders.  The Notice of Appeal is defective in form and substance, stating the grounds in a most uninformative way.  The appellant’s solicitors’ written submissions were equally defective but the grounds and content of the appeal were refined in oral argument.

  12. Three grounds of appeal were argued. The first was the “mistranslation” of the test for refugee status. This was said to amount to a failure to comply with s 425 of the Act.

  13. The second was an apparent error in translation which found its way into the Tribunal’s paraphrase of the appellant’s evidence at paragraph [176] of its decision record, and its reasons at paragraph [232]. The error was that in translating an answer given by the appellant on the second day of the hearing on the topic of how she learned of her husband’s arrest, she is recorded as having said she was in the room when her sister telephoned her husband. The error appears to be that she said she was not in the room.

  14. This was said to amount to a denial of procedural fairness or a breach of s 425 of the Act. In particular, it was said to be a determinative finding by the Tribunal which was based on a false premise that affected the adverse credibility finding.

  15. The third ground was that the Tribunal’s failure to recall the sister amounted to a denial of procedural fairness.

  16. The Circuit Court judge dealt with each of these issues in his reasons and decided them adversely to the appellant.

    THE TRIBUNAL’S DECISION RECORD

  17. The Tribunal set out the background to the appellant’s claims commencing at [20] of its decision record.  It referred at [22] to the claims made in her written application for a protection visa including her fear of persecution in China by reason of her practice of Yi Guan Dao, the confiscation of her books and her questioning by the police.

  18. The background material to which the Tribunal referred also included a supplementary statement provided by the appellant which dealt with her husband’s questioning by the local police.

  19. The Tribunal set out at some length, commencing at [88], the evidence given by the appellant on the first day of the hearing which was 17 February 2011.  It recorded at [121]-[128] the questions asked by the Tribunal, and the answers given by the appellant on the topic of how the appellant came to know that her husband was questioned by the police on 19 October 2010.

  20. The appellant’s answers as recorded by the Tribunal in these paragraphs show considerable inconsistency on this topic.  She said initially that her father telephoned her sister, then that the father told her and her husband told her sister, then again that her father told her sister first.

  21. The Tribunal’s decision record continues as follows:

    [126]… The applicant said she was told about it [her husband’s questioning] before he was questioned as it was in the evening of the 18th [October] that her husband told her sister that he was to be questioned.

    [127]The applicant was with [her] sister when she called back to the applicant’s husband on 19th and the husband told her sister what happened at the interview.

  22. The Tribunal also set out in detail, commencing at [129], the record of the Tribunal’s questions addressed to the appellant’s sister, and the sister’s answers.

  23. The topic of the husband’s questioning commences at [141]. The Tribunal asked the sister if she talked to the appellant about the phone call from the appellant’s husband. The sister’s evidence, as recorded at [142] was that she did not tell the appellant immediately because she wanted to protect her. The paragraph continues as follows:

    [142]… The Tribunal asked again if the witness told the applicant before or after the applicant’s husband was questioned.  The witness said, after.

  24. The same topic was taken up again and referred to at [147]-[148] of the Tribunal’s decision record.  The effect of what is recorded is that the sister spoke to the appellant’s husband on 19 October to find out what happened but she did not tell the appellant until some days later.  The following is recorded at [148]:

    During 19 and 20th October the witness brought the applicant to her bedroom but did not tell her anything.  The Tribunal asked when she told the applicant about the applicant’s [husband’s] questioning. … The witness said it was not more than a week later that she told the applicant.

  25. The details of further evidence given by the sister on this topic are recorded at [151]. They are to the same effect as the evidence set out above, that is to say, that she did not tell the appellant on 18 October or 19 October and that she told her when they were working together not more than a week later.

  26. The Tribunal’s record of the hearing on 11 March 2011 commences at [153]. The Tribunal stated that it referred to the letter from the appellant’s agent raising concerns about the interpretation. The Tribunal stated that it had listened to the audio twice and went through the agent’s concerns, in effect rejecting them.

  27. The Tribunal then summarised what it understood from the appellant’ evidence on 17 February 2011 and obtained clarification from the appellant at [159]. This included:

    She found out that he [the husband] was to be questioned on 18th October 2010.  She found this out from her father who phoned her.

  28. At [172] of the decision record, the Tribunal records the material it put to the appellant under s 424AA of the Act as adverse information for response. The material included the inconsistent answers given by the appellant and her sister on the topic of the husband’s questioning.

  29. The Tribunal continues as follows at [176]:

    In respect of her husband's questioning the Tribunal explained the inconsistencies to the applicant being that her sister insists she did not tell the applicant about the questioning until a few days after it whereas the applicant says she knew about it on 18th October as it was happening.  The applicant said her father called her on 18th October to say her husband had been called to attend questioning the next day.  The applicant said her sister knows that she is not brave and was afraid of worry so tried to keep it away from her. Everything was between he[r] sister and the applicant's husband.  The applicant said her sister told her about her husband’s questioning a few days later.  The Tribunal put to the applicant that she had said she was present when her sister talked to her husband on 19th October when he explained what occurred.  The applicant said she was in the room when her sister spoke to her husband but her sister tried to avoid doing this in front of her because her sister was afraid she would worry and her sister did all the family business.

    THE TRIBUNAL’S FINDINGS AND REASONS

  30. The Tribunal did not accept the agent’s submission that the translation was so deficient as to deny the appellant a fair hearing, or deficient at all.  The Tribunal set out in some detail the reasons why it was satisfied that the appellant and her sister understood what they were being asked and that their answers were interpreted and understood by the Tribunal.  The reasons included the Tribunal’s review of the hearing recordings and use of interpreters with a high level of accreditation.

  31. The Tribunal made the following critical findings about the translation:

    [210]The Tribunal does not accept that the interpretation did not allow the applicant’s evidence to be accurately conveyed or that the Tribunal’s questions were not equally conveyed. Again the applicant responded appropriately to the questions asked. The agent submitted the applicant comes across as a person who speaks unintelligibly and unable to string a cogent sentence together. However, the Tribunal does not have that impression of the applicant and does not accept that she was unable to express herself. The Tribunal is satisfied that the applicant responded appropriately to the questions put to her at hearing and her answers indicated she understood and could respond to the questions. While the applicant’s answers may at times have lacked spontaneity the Tribunal accepts that this may be due to nervousness of the applicant and the applicant’s timid nature as put by the agent and as evidenced by the psychologist’s report. The Tribunal accepts that the applicant, like many applicants, was nervous and has taken this into account in considering her evidence. This is also why the Tribunal ensured it asked questions in a number of different ways, gave the applicant the opportunity to reference events generally or by events rather than specific dates, repeated and sought clarification of understanding throughout the hearing.

    [211]The applicant’s sister has resided in Australia since 1989 and is an Australian citizen. She helped the applicant with the protection visa application, including the review application and subsequent material lodged in English, until her agent was engaged in February 2011. The Tribunal does not accept that the sister was not in any way able to convey her evidence to the Tribunal or that she did not understand the questions put to her. Again the Tribunal ensured that the sister was given the opportunity to reference events generally or by event[s] happening, rather than specific dates and repeated and sought clarification of understanding throughout the hearing.

  32. The Tribunal did not accept that the appellant and her sister told the truth about the topic of the husband’s questioning.  It made the following critical findings:

    [232]In addition, it [the sister’s evidence] is at odds with the applicant’s evidence that she was in the room with her sister, on 19th October when she was talking to the brother in law about what occurred. It was also at odds with her signed written statement dated 20th October which sets out her husband’s verbatim interview with Chinese authorities of 19th October – the day before. The statement was provided to the Department on 20th October 2010.  If the applicant was in the room during the 19th October conversation about her husband’s questioning and she signed a statement on 20th October which purported to provide a verbatim account of her husband’s questioning the day before, it is not credible that the applicant would not have known the details of her husband’s claimed questioning at the time and not a few days later. Further the applicant stated in her evidence that she knew that her sister telephoned the applicant’s husband about the second questioning on 20th October. This is also inconsistent with the claim she was not told until a few days later.

    [233]In addition, their evidence about how the details of the questioning were conveyed to the applicant lacks credibility. The Tribunal does not accept that the details of such an important event (if it occurred) would be relayed while driving in the car or at work, particularly given the concern the sister had for the applicant and wanting to protect her.

  33. The Tribunal went on to say that the accounts given by the appellant and her sister lacked credibility and were inconsistent.

    THE CIRCUIT COURT JUDGE’S REASONS

  34. The Judge dealt with the claim of a denial of procedural fairness by reason of the failure to recall the sister at [28] ff.  He noted that the sister was present on the second day of the hearing and was affirmed, but that the Tribunal did not recall her.

  35. His Honour considered the claim to be one of a denial of common law procedural fairness which he rejected because, in his view, no such requirement was imposed on the Tribunal in the codification of the requirements of procedural fairness in s 422B of the Act.

  36. The Circuit Court Judge dealt with the claim based on failure to properly translate the Convention test for refugee status at [50] ff.

  37. His Honour rejected this ground by pointing out that the Tribunal has no duty to explain the test and finding, in any event, that the misinterpretation was of no significance.  He pointed out at [53] that the appellant was represented by migration agents who were also solicitors.  He went on to say that evidence that the appellant was in fact misled was required to be given but no such evidence was adduced.

  38. His Honour dealt with the error of interpretation on the topic of the husband’s questioning at [104] ff. He drew attention to the omission of the word “not” from the Tribunal’s paraphrasing of the evidence at [176] of the Tribunal’s decision record and of the same omission in the Tribunal’s reasons at [232].

  39. The learned Circuit Court Judge rejected this ground of review because he considered that the finding was no more than a subsidiary finding in support of the Tribunals’ determinative finding made at that it did not accept the applicant’s explanation of the inconsistencies.

    GROUNDS OF APPEAL

    Ground 1 – Mistranslation of the Convention test

  40. The appellant’s solicitor accepted that the Tribunal has no duty to explain the test but he submitted that, having given an explanation, it was bound to do so correctly and the test has to be conveyed in a way so as not to mislead an applicant as to the test it has to meet.

  41. My attention was directed to the decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1. In particular, the appellant’s solicitor referred me to [34] of that decision in which McHugh, Gummow, Callinan and Heydon JJ observed that the entitlement of the appellant in that case to complain about the failure of the Tribunal to complete the review process did not depend upon the tender of evidence that he was misled.

  1. In my opinion, that passage from their Honours’ judgment has no application to the present case.  This is because their Honours were concerned with a situation in which the Tribunal failed to complete the review process by failing to write to the appellant, as it had promised to do, about certain inconsistencies in his evidence.

  2. That is not the position in the present case.  Subject to the appellant’s submission that the review process was not completed due to the failure to recall the sister, there is no suggestion that the Tribunal had not completed the review.  Indeed, it is plain that the Tribunal had conducted an exhaustive review.

  3. The contention which is put by the appellant is that the failure to accurately translate the test amounted to a breach of s 425. It was submitted on her behalf that the failure to properly translate the test “coloured” the hearing from the outset, the explanation having been given at the start of the first day of the hearing. The appellant’s solicitor also submitted that it was clear the appellant was misled.

  4. It is well accepted that the opportunity to give evidence afforded by s 425, in the case of a person who is not fluent in English, will only be afforded if an interpreter provides a reasonably accurate interpretation of that which an applicant wishes to convey to the tribunal and that which the tribunal wishes to convey to an applicant is fairly interpreted: see SZJZS v Minister for Immigration & Citizenship (2008) 102 ALD 318 at [32] (Flick J) and the authorities there cited.

  5. However, as a Full Court said in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [66], the requirement is not that there be a perfect translation; the translation must be sufficiently accurate to permit the idea or concept being translated to be communicated.

  6. The authorities also establish that the tribunal will not have fulfilled its obligations under s 425 if it provides an interpreter whose translation service is so inadequate that an applicant is deprived of an effective opportunity to give evidence and present argument to the tribunal: SZJZS at [32].

  7. I reject the submission made on behalf of the appellant that the translation of the test for refugee status under the Convention was so inadequate as to demonstrate a breach of s 425 in accordance with these principles. The relevant passage of the transcript is sufficiently set out at [50] of the Circuit Court Judge’s reasons for judgment.

  8. First, the translation of the fear that “they could be persecuted” to a fear that “they will be persecuted” was sufficiently accurate to permit the concept to be communicated to a non-English speaking person, particularly one who was legally represented, and whose lawyer had combed his was through the transcript with a view to the detection of error.

  9. Nor does the translation of the meaning of “persecution” as set out in [50] of the reasons of the Circuit Court Judge fail the test of adequacy.

  10. Second, the Tribunal’s decision record makes it plain that the appellant was not deprived of an opportunity to give evidence and present argument.  It is clear that there was a full and adequate opportunity in a hearing which occupied two days in oral hearing as well as oral and written submissions provided by the appellant’s solicitor.

  11. Third, s 425 is part of the code of procedural fairness or natural justice requirements stated in Division 4, Part 7 of the Act. As Gleeson CJ said in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37], whether one talks of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Thus, where a person claims to have lost an opportunity to make representations to a decision-maker by reason of the decision-maker’s failure to take a procedural step, the person will ordinarily be expected to give evidence of reliance and unfairness.

  12. Here, as the Circuit Court Judge said at [53], in the circumstances of this case evidence was required, in order to establish a breach of s 425, that the appellant was prevented by the interpretation from giving evidence or presenting her arguments.

  13. There is no error in the approach taken by his Honour and Ground 1 fails.

    Ground 2 – The husband’s questioning

  14. Ground 2 was also put as a breach of s 425, or possibly as a breach of the rules of procedural fairness or natural justice.

  15. The translation error sufficiently appears in the passage in the Circuit Court Judge’s reasons at [104]. The error occurred on the second day of the hearing when the interpreter omitted the word “not” from the answer given by the appellant: “I was [not] in the room” when the sister called the husband on the telephone.

  16. It is true that the Tribunal’s paraphrase of the evidence at [176] of its decision record contains the translation error and that the same error appears in the Tribunal’s reasons at [232]. However, the omission of the “not” occurs in only one sentence in each of those paragraphs.

  17. When those two paragraphs of the Tribunal’s observations are read in full, and considered in the light of other observations and findings referred to above, it seems to me that the Judge was correct in his conclusion that the mistranslated sentences were not determinative findings.

  18. The statement in [176] that the “applicant said she was in the room” is a small part of a larger paragraph.  The substance of it is that the Tribunal put to the appellant the inconsistencies between her evidence and that of her sister on the topic of when the appellant first learned of the questioning.  The appellant’s evidence had been that she knew about the questioning before it occurred, whereas her sister’s evidence was that she told the appellant, for the first time, after the questioning had occurred.  The overall effect of [176] is that the appellant maintained her evidence.

  19. The proposition that the appellant had said she was present when her sister talked to her husband on 19 October was put to her.  Her reply that she was “in the room” also appears but it is subsidiary to the overall focus of the inconsistency between the appellant and her sister on the topic of when the appellant first learned of the questioning.

  20. This is also evident from the Tribunal’s reasons at [232]. Whilst the error appears in the first sentence, the Tribunal continued by pointing out that the evidence given by the sister that the appellant learned of the questioning after it occurred was at odds with the appellant’s signed written statement, dated the day after her husband’s interview, which set out his verbatim interview with the Chinese authorities.

  21. It is also necessary to bear in mind that the Tribunal found at [231] that it did not accept the appellant’s explanation on the second hearing day, when the inconsistency was put to her.  This was that she knew her husband was being questioned but her sister did not tell her the details until later because the sister did not want to worry her.

  22. As the Circuit Court Judge said at [106], a consideration of those passages in the Tribunal’s reasons indicates that the conclusion expressed by the Tribunal at [231] would have been made regardless of whether the finding in [232] had been made.

    Ground 3 – Failure to recall the sister

  23. This ground was said to amount to a denial of procedural fairness on the part of the Tribunal. 

  24. There was some debate between the parties as to whether this ground was open in light of the provisions of s 422B of the Act.

  25. It is clear that s 422B and its analogues are only effective to exclude the natural justice rule with respect to “matters” actually dealt with in the provisions to which they refer: Khan v Minister for Immigration & Citizenship (2011) 192 FCR 173 at [39] (Buchanan, Flick and Yates JJ) citing Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 at [35]-[42].

  26. In the present case, the relevant provision is s 426 under which an applicant may request the Tribunal to call a witness.  The appellant notified the Tribunal in accordance with s 426(2) that she wanted to obtain oral evidence from her sister.  The sister gave evidence on 17 February 2011 and it would therefore seem to follow that no question of breach of s 426 arises.

  27. However, it was submitted on behalf of the appellant that the Tribunal’s failure to recall the sister amounted to a denial of procedural fairness in accordance with the approach adopted by a Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304 (Spender, Kenny and Lander JJ).

  28. In Maltsin, the Tribunal limited the hearing to two hours and questioned only two of the four witnesses nominated by the applicant. The time limitation, and the failure to call the other witnesses, appears to have come about as a result of the Tribunal’s own commitments.  Nevertheless, the Tribunal found that the evidence before it disclosed “a web of deceit” among the applicant’s family and social connections.

  29. In those circumstances, the Full Court found in Maltsin that the Tribunal had breached the analogue of s 426(3) by failing to genuinely give regard to the applicant’s notice that he wanted all of the witnesses to be called.  It also found that the failure to have genuine regard to the applicant’s notice and the haste with which the hearing was conducted amounted to a denial of procedural fairness: see Maltsin at [48]-[50].

  30. Maltsin turned on its own facts.  It is distinguishable from the present case because the Tribunal had regard to the appellant’s notice and the sister gave evidence.

  31. But even if the Tribunal was required, otherwise than in accordance with Division 4 of Part 7 of the Act, to give the appellant a reasonable opportunity to present her case, any such requirement was met.

  32. The sister had completed her evidence on the topic of when she told the appellant of the husband’s questioning at the conclusion of the first day of the hearing.  This can be seen at pages 73-74 of the transcript of day 1:  see Supplementary Appeal Book pages 618-619.

  33. The inconsistency between the sister’s evidence and the appellant’s evidence on this topic was put to the appellant on the second day of the hearing. This is addressed in the Tribunal’s reasons at [176].

  34. At the completion of the appellant’s oral evidence on the second day, her solicitor was asked if he wanted to add anything.  He made oral submissions but did not request that the sister be recalled.  He also requested time to provide written submissions.  This can be seen at pages 88-92 of the transcript of day 2, reproduced in the Supplementary Appeal Book pages 535-539.

  35. Moreover, nearly a week after the conclusion of the hearing, the Tribunal wrote to the appellant pursuant to s 424A of the Act providing particulars of information which the Tribunal considered would be a reason for affirming the decision. The particulars included the inconsistent evidence given by the appellant and her sister on the topic of the husband’s questioning.

  36. The appellant’s solicitor replied on 6 April 2011.  He provided an expert report of a psychologist and submitted that the appellant had been denied a fair hearing by reason of deficient translation services on both hearing days.  He requested a fresh hearing before a newly constituted Tribunal.  He did not suggest that the hearing was affected by a denial of procedural fairness as a result of a failure to recall the sister.

  37. It follows in my view that even if this ground is available as a matter of law, it cannot be sustained in the circumstances of this case.

    CONCLUSION AND ORDERS

  38. The appeal must be dismissed with costs.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:       18 September 2013

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Muin v Refugee Review Tribunal [2002] HCA 30
SZTTO v Minister for Immigration [2016] FCCA 2128
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6