SZQNC v Minister for Immigration - [2012] FMCA 190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQNC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 190

MIGRATION – Refugee Review Tribunal – interpretation provided at the Tribunal hearing – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424, 424A, 424AA, 425, 425A, 426, 426A, 430, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259
NABEvMinister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Abebev Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
SZHEV v Minister for Immigration and Citizenship [2008] FCA 123
Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1113
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZMCDv Minister for Immigration and Citizenship[2009] FCAFC 46; (2009) 174 FCR 415

Applicant:

SZQNC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1724 of 2011

Judgment of:

Nicholls FM

Hearing date:

14 February 2012

Date of Last Submission:

14 February 2012

Delivered at:

Sydney

Delivered on:

19 March 2012

REPRESENTATION

The Applicant

In Person

Appearing for the Respondents:

Ms M Stone

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application made on 9 August 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,800.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1724 of 2011

SZQNC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application, made on 9 August 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 July 2011 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse the grant of a protection visa to the applicant.

Background

The applicant is a citizen of the People’s Republic of China (“China”) (see Court Book – “CB” – CB 25). He arrived in Australia on 23 April 2009. On 2 June 2010 the applicant applied for a protection visa (CB 1 to CB 27). In his application for a protection visa the applicant advised he could speak, read and write Mandarin, Korean and Japanese (CB 11).

Claims to Protection

The applicant’s claims to protection were initially set out in a statement provided on 16 June 2010 in support of his application for protection (CB 31 to CB 33). They were as follows:
1)The applicant identified as ethnically Korean, as opposed to Chinese, as his grandfather had been born in Korea ([2] at CB 31).
2)He was “discriminated against by both the government and Chinese society” because he was Korean ([2] at CB 31).
3)The applicant travelled to Korea in August 2003 and 2007, ([6] – [8] at CB 31).
4)In November 2004 he started assisting Korean refugees to cross into China ([8] at CB 31; [10] –[11] at CB 32)
5)As a result of these activities, the applicant’s home was raided in March 2008 and he was detained at the police station where he was questioned about his political activities and threatened with imprisonment. His family secured his release through connections, and the payment of 30,000 RMB. ([12] – [13] at CB 32).
6)To avoid being imprisoned by the Chinese authorities, and “to avoid political oppression”, the applicant left China for Australia.
7)The Chinese government also restricts “freedom of information” and “freedom of expression” ([4] and [5] at CB 31).

The Delegate

The applicant appointed a migration agent on 2 July 2010 to assist him. The applicant was invited to attend, and did attend, an interview with the delegate on 26 August 2010 (CB 89).
On 26 October 2010, the delegate notified the applicant of his decision to refuse the grant of a protection visa to the applicant, and the reasons for his decision (CB 65 to CB 75).
The delegate found that, given the delay (about 14 months) in the applicant applying for a protection visa, and the country information available to him, the requirements for the grant of a protection visa were not met (CB 75).

The Tribunal

The applicant applied to the Tribunal for review of the delegate’s decision (CB 93 to CB 100). He continued to be represented by a migration agent (CB 94). He was invited, and did attend, a hearing before the Tribunal on 11 February 2011. He also appeared on a second occasion on 10 June 2011 ([45] at CB 223). The applicant’s representative attended both hearings. Prior to the first hearing the representative provided written submissions in support of the applicant’s claims (CB 119 to CB 120), as well as documentary evidence. Specifically a letter from the Senior Pastor of the Somang Church (CB 122 to CB 125), the applicant’s birth certificate (CB 128 to CB 129) and a “Citizen Death Certificate” for the applicant’s father (CB 132 to CB 133).
The letter was in support of the applicant’s claim that he had met a pastor (in a hotel) who first alerted him to the plight of Korean refugees and who asked him to help.
Following the conclusion of the “first” hearing, the representative provided further written submissions and documents to the Tribunal (CB 147 to CB 154). Additional further submissions were received on 7 April 2011 (CB 173 to CB 178).
The applicant’s claims before the Tribunal were:
1)He was a member of a political organisation named “the prosperity and freedom of our ethnicity”, which assisted individuals in North Korea ([26] at CB 208).
2)The applicant had travelled to North Korea, without a visa, in August 2003 for four days ([26] at CB 208). In November 2004, he assisted refugees to enter China ([29] at CB 209).
3)As a result of his political activities, police came to his home, and they had “detained him for seven hours” ([31] at CB 210). As a result of this, he had decided to leave China.
4)He had waited over a year to apply for protection in Australia because he had not known that a protection visa existed ([33] at CB 210).
5)Because of his involvement with the political group, and “political issues”, the applicant feared he would be “harmed” if he returned to China ([26] at CB 208). Specifically, he feared he would be caught and arrested, and potentially jailed ([34] at CB 210 to CB 211). His family was being investigated by the police at present ([40] at CB 211)
For the Tribunal hearing the applicant requested the assistance of a Korean interpreter of Chinese background (CB 114). The Tribunal’s account of the hearing reveals that the applicant indicated, prior to the commencement of the “first” hearing, that he may not be able to understand the Korean interpreter as some information was “in Chinese terminology” ([21] at CB 208, see also [41] at CB 212). The Tribunal stated that the interpreter would indicate if she was unfamiliar with a word, and the applicant’s representative, who spoke Mandarin, was also invited to comment on the interpretation “if he was able to do so” ([23] at CB 208). In relation to the resumed or “second” hearing, the Tribunal recorded that the hearing was conducted with the assistance of a “NAATI Level 3 accredited Korean interpreter” ([45] at CB 223).
The Tribunal accepted that the applicant had visited North Korea in 2003, and that he had had some contact with North Koreans while living in China ([81] – [82] at CB 232). However, given a number of inconsistencies in the applicant’s evidence before the Tribunal and in his application, and the delay in applying for a protection visa, the Tribunal was not satisfied as to the veracity of key aspects of the applicant’s claims. As a consequence it found that the applicant had not attended political meetings or assisted North Korean refugees once they had entered China ([82] – [83] at CB 232). Consequently the Tribunal found that the applicant had not been detained by the police and his family were not presently being “investigated” by the police.
While Chinese Koreans do face some problems and difficulties in China, the Tribunal held that the difficulties faced by the applicant did not amount to “serious harm” ([87] at CB 234). Therefore, the Tribunal found that the applicant was not a person to whom Australia owed a protection obligation, and it affirmed the decision of the delegate to deny the grant of a protection visa. The Tribunal also found the 14 month delay in applying for protection after arrival in Australia did not indicate “… the applicant is convinced he will face serious harm” for the reasons advanced” ([87] at CB 234).

Before the Court

The application before the Court contains three grounds:
“1. I believe the Refugee Review Tribunal failed to provide me with a Korean interpreter with Chinese background who can understand my dialect for which I had requested.
2. I believe the Tribunal failed to consider my evidence for which I firmly believe is true.
3. I believe the Tribunal failed to give me a fair treatment”
The applicant appeared in person at the hearing and was assisted by an interpreter in the Korean language. Ms M Stone appeared for the first respondent. The Court had regard to the written submissions filed by the respondent. Nothing further was received from the applicant.
Before the Court the applicant asserted that there were numerous instances where the interpreter wrongly interpreted his evidence before the Tribunal. They were:
1)The interpreter incorrectly translated his evidence that he “met” the pastor, to say that he had attended a “meeting” with the pastor.
2)The interpreter told the Tribunal that the applicant met the pastor in 2004, when his evidence was he had met the North Korean refugees at that time.
3)The interpreter incorrectly interpreted his evidence regarding the number of members of the group who assisted North Korean refugees.
4)The interpreter asked him to describe the “characteristics” typical to North Korean refugees, when the Tribunal had actually enquired as to the gender composition of the refugees.
5)The applicant could not understand the Tribunal’s question relating to his delay in applying for a protection visa. He was unable to properly, and satisfactorily, answer the question. The reason for his delay in departing China was not properly interpreted before the Tribunal.
6)The interpreter had stated that the pastor had asked him to “find his cousin”, when his evidence was that he had been asked by the pastor to help locate individuals who were separated from their families.
7)He had received no monetary or non-financial reward for the assistance he had provided. However, the interpreter had confused his evidence that he helped to get rice and clothes to refugees and instead stated that he received rice and clothes in exchange for his assistance.
Although not expressed as such by the applicant, I understood these assertions to be particulars of the interpretation complaint raised in ground one of his application to the Court.
The applicant also alleged that the Tribunal, having accepted that he visited North Korea and may have had contact with North Koreans in China, was wrong not to accept his claim to have “helped” North Korean refugees. I understood this to be an additional complaint raised by the applicant.

Interpretation at the Hearing

Given the importance given to, and the concern expressed by the applicant about, the level of interpretation at the Tribunal hearing, I explored with the applicant whether he wished to proceed with the hearing before the Court. The interpreter assisting before the Court was of Korean ethnicity. The applicant, while of Korean ethnicity, said he spoke Korean, but given that he had grown up in China, there were dialect differences.
The interpreter before the Court confirmed that she had a “little difficulty” given the dialect differences. She also confirmed that she was accredited to National Accreditation Authority for Translators and Interpreters Ltd (“NAATI”) Level 3. The difficulty in this situation was, as advised by the Court’s registry, Korean speaking interpreters with understanding of the applicant’s Chinese-Korean dialect were rare, if not non-existent, in Australia. Plainly, this would not be a reason to deprive the applicant of a fair hearing before the Court.
However it became apparent that the applicant’s concern (understandably) was not that he and the interpreter could not communicate (he confirmed that they could) but, given some dialect differences, that the interpreter may not be able to understand some of what he had to say. On this basis I gave the applicant the opportunity to adjourn the hearing so that he could bring a “friend” to Court. This friend assisted the applicant with the preparation of his application for a protection visa and was apparently able to understand his dialect. The applicant declined this opportunity.
The applicant ultimately confirmed that he wished to proceed with the hearing on the basis that if he, or the interpreter, had difficulty then they would so indicate to the Court. The hearing proceeded on that basis.
As is the case before the Tribunal, a fair hearing does not require a perfect level of interpretation. The standard is one of an adequate interpretation, such that the applicant is not deprived of the opportunity to know the case against him and to be able to communicate his case and his arguments (see authorities below at [27] and [28]).
I was satisfied, given the exchanges that took place during the hearing and the applicant’s responsiveness to issues raised, that the level of interpretation was at least at an adequate level. That is, adequate for the purpose of ensuring a fair hearing.

Ground One

Ground one complains that the Tribunal failed to provide the applicant with a “Korean interpreter with Chinese background”. The Court Book reveals that the applicant had requested such an interpreter (“Korean (with Chinese accent)” at CB 183).
It is the case that even if the Tribunal had failed to provide an interpreter with the characteristics specified by the applicant this, on its own, would not reveal jurisdictional error on its part.
The applicant is entitled to a fair and meaningful opportunity to present his evidence and arguments in relation to the issues arising in the review (with reference to s.425 of the Act and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”), see in particular Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 and Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188).
As the Minister submits, in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (per Mansfield and Selway JJ) the Full Court set out the evidentiary basis to determine jurisdictional error arising from inadequate interpretation. Relevantly:
1)The standard of interpretation at the hearing was so inadequate that the applicant was prevented from giving his evidence.
2)Any errors made by the interpreter at the hearing were material to the Tribunal’s adverse conclusions.
Despite opportunity, the applicant has put no evidence before the Court to establish any inadequacy or deficiency in the interpretation at the hearing. Nor has any evidence been put before the Court to show that any errors in interpretation occurred, let alone that they were material to the outcome. Only before the Court, at the hearing, did the applicant provide what may be said to be particulars of the errors asserted beyond his general complaint of a failure to provide a “Korean interpreter with a Chinese background.” (See items at [16] above).
In a practical sense, while some latitude (for example as to matters of form) may be allowed to unrepresented applicants in cases of this type, what remains is that the applicant, despite providing oral particulars before the Court of his bare complaint, has not provided any evidence in support. While the Minister professes to be a model litigant in these types of proceedings, I do not understand this to extend to making out the applicant’s case for him.
The deficiency in the applicant’s case before the Court is not one of mere technicality, but a deficiency of evidence. In this regard, I note, that the applicant was offered access to, and participated in, the Court’s “RRT Legal Advice Scheme” where he had the opportunity to address these deficiencies in the presentation of his case.
Before the Court the applicant confirmed that he met with the panel lawyer and that he and his friend put to him the “errors” they found in the Tribunal’s decision record. He said he was still waiting for the lawyer’s written response, which he confirmed had not arrived at the address for service as of the day before the Court hearing.
When it was put to the applicant that the lawyer in question had sent a certificate to the Court stating that written advice had been sent to the applicant some months ago, the applicant produced a number of envelopes which he said were “letters from the lawyer”. He said he did not open them because he could not understand English.
The applicant volunteered that his migration agent made a telephone call to the lawyer “a few days ago”, but “heard nothing”. He was unable to explain why he did not ask the migration agent or his friend to translate the letters for him beyond saying his friend was busy.
In all, the applicant has had the opportunity to obtain advice about how to go about putting evidence before the Court. He has not done so.
What the Court is left with therefore, relevantly, is the Tribunal’s own account of what occurred at the two occasions of the hearing conducted with the applicant. Given that this account remains unchallenged by any evidence to the contrary, it is not open to this Court to make assumptions about what might otherwise have happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
This account reveals a number of things. First, on the whole, the applicant was not prevented from presenting his evidence. The applicant’s answers appeared generally responsive to the matters posed.
Second, the Tribunal was alert to the applicant’s concern that he may not be able to understand the “Korean interpreter.” At the commencement of the hearing on the first occasion, the Tribunal specifically invited the applicant to tell it if the interpreter used a word that the applicant did not know ([23] at CB 208).

Third, on the first occasion, when questioned about an important characteristic of a “typical” refugee from North Korea (whom the applicant claimed to have assisted), the applicant ultimately told the Tribunal, after being demonstrably unable to satisfactorily answer the question (such refugees were said to be mostly female) that “… he thought he had a problem with the interpreter …” ([30] at CB 209.8).
The Tribunal did rely on this point, along with a large number of other factors to find adversely to the applicant. In making this finding however, the Tribunal was alert to the applicant’s explanation that his inability to answer was because “he thought there was a problem with the interpreter.” The Tribunal did not accept this explanation “given that his answers were [otherwise] articulate and on point” ([82] at CB 233.8).
The Tribunal’s account of the hearing on this exchange reveals that it was reasonably open to the Tribunal to come to this conclusion ([30] at CB 209 to CB 210). That is, it was probative of the material before it.
Fourth, and importantly, following the first occasion of the hearing the applicant’s representative who had been present at the “two” hearings, made written submissions on the applicant’s behalf. While this was in the context of a response to the Tribunal’s invitation to comment on certain information, the opportunity was there to have conveyed any concern, with particulars, about the standard of interpretation at the “first” occasion of the hearing. Nothing in this regard was put forward (CB 173 to CB 174). Further, and indeed, it could have been put forward at any time by the representative.
Fifth, on the “second” occasion of the hearing the applicant told the Tribunal that inconsistencies in his evidence as to when he started attending meetings of a group whom he claimed assisted North Korean refugees “was the interpreter’s fault” ([48] at CB 224.5).
The Tribunal specifically rejected this explanation ([82] at CB 233.4):
“The Tribunal is satisfied that given the accredited level of the interpreter and the flow of the dialogue at that stage of the hearing that there was no interpreter fault. The applicant’s final statement in relation to when he first went to the meeting was the he met the Pastor in July and then went to meetings in September 2003 which was after he went to North Korea. Given this, the Tribunal finds that the applicant’s evidence in relation to when he first went to the meetings has continued to change in relation to whether he went to meetings before or after he went to North Korea.”
The relevant part of the Tribunal’s account of the hearing and the relevant part of its analysis, following the above extract ([82] at CB 233.5 to CB 233.8), reports that the applicant’s otherwise articulated answers to the questions that it relevantly asked were of such character to show that the applicant’s difficulty was not with the interpreter, but his inability to explain his frequently changing evidence. This again was open to the Tribunal on what was before it.
Sixth, also on the occasion of the “second” hearing, the applicant told the Tribunal that any inconsistency in his various factual accounts of past events, or the names of people he had claimed to have assisted, was due to the interpretation of those names (see generally [51] – [53] at CB 225, and in particular [54] at CB 225).
The Tribunal “wondered” why the applicant had waited until the end of the hearing to raise “issues” with the interpretation (particularly after the Tribunal had put adverse information to him pursuant to s.424AA) ([54] at CB 225.7).
Nonetheless, on the particular matter of the “names” the Tribunal accepted the applicant’s evidence as to the names of the particular people he claimed to have assisted ([82] at CB 233.7). The Tribunal’s rejection of the applicant’s factual claims to have helped North Korean refugees was based on a number of other factors. The Tribunal therefore placed no weight on this “inconsistency”. I accept the Minister’s submissions that it cannot therefore be said to have been material to its decision.
Seventh, and importantly, although the applicant continued to be represented up to the time of the Tribunal’s decision (CB 200), no further complaint about the standard of interpretation at the hearing was made to the Tribunal beyond the suggestion, or explanations, raised at the hearing by the applicant. Had the matter been of such importance and material to the applicant’s evidence then his representative did not take the opportunity to present it to the Tribunal.
Finally, while the lack of evidence, despite opportunity to provide it, is a complete answer to the applicant’s first ground, the applicant’s complaints or “particulars” put orally before the Court do not reveal that the level of interpretation at the Tribunal hearing was inadequate.
With reference to the complaints as set out at [16] above:
1)(a) The applicant complains that the interpreter incorrectly translated his evidence as being that he attended a “meeting” with the pastor when what he said was he “met” the pastor.
(b) There may be a difference between “met” and “meeting”. The latter may imply that others were present at a more formal occasion. The former remains silent as to this.
(c) But in the circumstances the difference cannot be said to be material to any adverse conclusion reached by the Tribunal
(d) In any event, and in complete factual answer to the applicant’s complaint, the Tribunal’s record reveals the applicant’s evidence is recorded as: “… He stated he personally did not participate, he just met the pastor of that church” ([47] at CB 223.4). [Emphasis added.]
2)(a) The applicant complains that the interpreter told the Tribunal he met the pastor in 2004, when his evidence was he had met North Korean refugees at that time.
(b) In his written statement attached to his protection visa application the applicant said that his first contact with North Korean refugees was in 2004 ([8] at CB 31).
(c) At the first occasion of the hearing the applicant’s evidence is recorded as being that: “… he first had contact with North Korean refugees in November 2004…” ([29] at CB 209).
(d) While the Tribunal considered whether the applicant went to North Korea (it accepted he did so in 2003 at [81] at CB 232) and whether he helped North Korean refugees ([82] at CB 233), the applicant has not pointed to any error in interpretation on the matter of when he met North Korean refugees in 2004, nor importantly how any such error was material to the Tribunal’s decision.
3)(a) The applicant asserts that the interpreter incorrectly interpreted his evidence as to the number of the members of the group whom he said assisted North Korean refugees, and in particular how many attended at meetings. The applicant says that his evidence was, ultimately, that the number of members of the group fluctuated.
(b) This matter was discussed at the occasion of the “second” hearing ([49] at CB 224 to [50] at CB 225). The applicant’s evidence is recorded as being that five group members were present at the first meeting and then that there were eight members of the group.
(c) The applicant clarified this ([50] at CB 225.1).
(d) The Tribunal considered this evidence ([82] at CB 233.6). It implicitly, but clearly, accepted that the applicant said the number of members fluctuated. The number of members was not a matter material to any adverse finding by the Tribunal.
(e) The Tribunal’s adverse finding was that in the circumstances it was “… unlikely that the applicant would be a member of a fluctuating group of unknown people that were involved in what essentially was unlawful activity” ([82] at CB 233.7).
(f) This finding was not reliant on the number of members of the group. The Tribunal understood, and in a sense proceeded on the applicant’s evidence, that the number fluctuated.
4)(a) The applicant complains that the interpreter interpreted a question from the Tribunal which asked him to describe the “characteristics” typical to North Korean refugees, yet the Tribunal had actually enquired as to the gender composition of the refugees.
(b) The Tribunal’s relevant account is at [30] (CB 209). That account reveals no error in interpretation. It is clear that the intent of the Tribunal’s question was for the applicant to “talk about the typical refugee from North Korea” (CB 209.4). That is to talk about characteristics typical to North Korean refugees.
(c) While one of the characteristics that the Tribunal was looking for was the gender composition, there is nothing to show the Tribunal was asking questions as to “what was the gender composition of North Korean refugees”.
(d) It would appear that the rationale for the Tribunal’s question (as put at (a) above) was that someone who had been involved with the flight of North Koreans to China would have known that the “typical” North Korean refugee had a common characteristic, namely that they were “female”.
(e) When this was pointed out to the applicant he gave the explanation for his inability to answer as being that there was “a problem with the interpreter” ([30] at CB 209.8).
(f) The Tribunal considered this and rejected the explanation ([82] at CB 233.8). This was open to the Tribunal. No error of interpretation is evident here. The Tribunal reports that it asked the applicant exactly what the applicant now says the interpreter put to him.
5)(a) The applicant now says that because of interpretation difficulties he could not understand the Tribunal’s question relating to his delay in departing China after obtaining a visa and in applying for a protection visa after arriving in Australia. This meant he was unable to satisfactorily answer the question.
(b) The Tribunal did rely on the two periods of delay to find that such conduct was inconsistent with someone who feared persecution ([82] at CB 233.9).
(c) This matter was raised at the hearing ([53] at CB 225). The Tribunal gave the applicant a short adjournment to consider his answer. On return the applicant said: “… he thought there were translation issues” ([54] at CB 225).
(d) At best, the applicant raised only one further issue to those referred to above about the interpretation before the Tribunal. That was said to be differences between the names in Korean and Chinese of those he had claimed to have helped ([54] at CB 225.7). This does not have any bearing on the issue of delay which was concerned with two differences in relevant dates and the reasons for the delay.
(e) Ultimately, the applicant told the Tribunal the reason for the delay in applying for a protection visa in Australia was that he “… didn’t want to work with [a migration agent] because he cost a lot of money” ([55] at CB 225).
(f) The applicant’s complaint before the Court that this is what he told the Tribunal reveals, at least, two things. One, there was no error in interpretation. Two, as Ms Stone submitted, the applicant really seeks impermissible merits review by the Court.
6)(a) The applicant also complained to the Court that the interpreter had interpreted his evidence as his having said to the Tribunal that the pastor asked him to “find his cousin”, yet he had said that he had been asked by the pastor to locate individuals who had been separated from their families. This at first appeared to have been two brothers.
(b) The relevant exchange in the Tribunal’s decision appears to be at [47] (CB 223.4):
“… He stated the first request the pastor asked was to find the pastor’s cousin who was believed to reside in North Korea…”
(c) The applicant submitted that he did not use the word “cousin”. He also submitted that the Court should listen to the “disc” recording of the Tribunal hearing to verify this. Given that the Court does not comprehend Korean, Mandarin, or for that matter Chinese accent and dialect Korean, this would be a futile exercise.
(d) In any event, the Tribunal’s record shows that the Tribunal returned to this question and asked him about his claim to have first “helped two brothers” ([47] at CB 223.7). This, as Ms Stone submitted, does not support the applicant’s assertion now that the word “cousin” was used in error by the interpreter.
(e) In any event, and importantly, the Tribunal made no adverse finding as to whether the applicant first helped the pastor’s cousin or two brothers. Even if any error (which is not apparent) had been made, it would not be material to any adverse conclusion reached by the Tribunal.
(f) An ancillary complaint made before the Court was that when he was asked by the Tribunal as to why the pastor would ask him to look for his cousin when he had said that the pastor was looking for people for the Red Cross, that during this exchange the interpreter said his answer was not comprehensible.
(g) While the Tribunal’s account makes reference to the applicant having said: “… it was the interpreters fault…” in explanation about seeming inconsistencies in his account, there is no evidence that the interpreter said he/she could not understand the applicant’s answers.
(h) In any event, as is clear from the Tribunal’s record, ultimately the applicant’s evidence in this regard was clarified ([48] at CB 224.6). The Tribunal did not rely on any earlier inconsistency in this regard.
7)(a) The applicant also complained to the Court that the interpreter had “confused” his evidence as he said that he had received clothes and rice for helping refugees, yet he had received no payment or reward for his assistance. He said the pastor had given him rice and clothes to give to the refugees.
(b) There is no apparent reference to this matter in the Tribunal’s account of the hearing. But what is clear is that there is nothing in the Tribunal’s analysis to suggest that the matter of clothes and rice formed any part of its findings adverse to the applicant’s interests.
In all, therefore, none of the applicant’s “particulars” in relation to ground one, either on their own, or in the absence of evidence, reveal jurisdictional error on the part of the Tribunal arising from any claimed interpretation difficulty. Ground one is not made out.

Ground Two

In ground two, the applicant complains that the Tribunal failed to consider his evidence which he asserts was “true”. No further explanation of this was provided by the applicant.
In the circumstances, and having regard to the evidence before the Court, the applicant’s complaint is really a challenge to the facts as found by the Tribunal. Ground two seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259).
Section 430 of the Act requires the Tribunal to produce a written statement of its decision, and its contents. It provides that the Tribunal must refer to the evidence and material on which its findings of fact are based (s.430(1)(d)).
There is no obligation on the Tribunal to deal in its decision record with every piece of evidence before it. A distinction here can be drawn with all the claims expressly made and clearly arising from the circumstances presented (NABEvMinister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).
In the current circumstances, if that is what is meant by ground two, (that is the Tribunal did not consider his claims) then the material before the Court does not support any such assertion. The Tribunal dealt with each aspect of the claims to fear persecutory harm as presented by the applicant.
If the complaint is that the Tribunal did not consider his documentary evidence provided in support, then again this claim fails. The applicant provided a letter from a pastor in support of his claims (CB 124 to CB 125). The Tribunal decided that it would give greater weight to the view it formed of the applicant’s credibility in light of the applicant’s own evidence, than to the letter produced in “purported corroboration of his claims” ([82] at CB 234.2).
No error is revealed in these circumstances. The Tribunal’s finding in this regard was reasonably open to it on what was before it and was probative of that material (see Minister for Immigration and Citizenship vSZNSP [2010] FCAFC 50; (2010) 184 FCR 485 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51). Further, the assigning of weight is a matter for the Tribunal within the exercise of its jurisdiction (Abebev Commonwealth[1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1)
The applicant provided other documents in support of his claims, including photographs of his trip to North Korea, and news articles in relation the persecution of Chinese citizens who have helped North Korean refugees. The Tribunal accepted as plausible that the applicant had gone to North Korea in 2003 as claimed ([81] at CB 232.10). Further, other documents relevant to his personal circumstances added nothing to the claims accepted by the Tribunal. There was nothing in the news articles to specifically link the applicant to the activities discussed in the articles.
Documents relevant to country information (news articles about the persecution of Chinese citizens who had assisted North Korean refugees) were ultimately not relevant given the Tribunal’s findings that, based on the applicant’s own evidence, it did not accept that he had helped North Korean refugees. Further, as the Minister submits, the Tribunal is not required to expressly grapple with any evidence contrary to its findings of fact (WAEE at 46, SZHEV v Minister for Immigration and Citizenship [2008] FCA 123 at [19], Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1113 at [42]).

Ground Three

Ground three asserts that the Tribunal failed to give the applicant “fair treatment.” If this is an expression of a failure to make a fair decision, then the Tribunal’s obligation is to provide a fair process, not a “fair” outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1). Beyond the reference to interpretation difficulties the applicant raised no other particular specific to this ground.
As to a fair process, this is a case to which s.422B of the Act applies to make the matters dealt with in Div.4 of Pt.7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with by that Division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).
What is immediately apparent is that apart from the complaint about the interpreter (s.425 of the Act) the applicant has not complained about any other matters that fall within the matters dealt with by Div. 4. On the material before the Court, no other error in relation to s.425 is apparent. The Tribunal’s invitations to both occasions of the hearing complied with relevant statutory and regulatory requirements (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C and reg. 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”)).
The Tribunal’s unchallenged account (that is by any evidence to the contrary) of the hearing reveals that the applicant could never have been in doubt as to the issue determinative of the review. Namely, that his factual account to fear persecutory harm was at issue (SZBEL at [47]).
Section 424A(1) provides that the Tribunal must give to the applicant, in writing, information which it considered would be the reason, or a part of the reason, for affirming the delegate’s decision (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162).
The Tribunal did write to the applicant by letter dated 16 March 2011 (CB 161 to CB 171). While the heading (“Invitation to Provide Information”) is more appropriate to s.424 of the Act, rather than s.424A, it is clear that the Tribunal was purporting to fulfil some perceived obligation pursuant to s.424A(1) (see CB 161.3 and [43] at CB 215: “You are invited to provide comments on the following information in writing”).

Any plain reading of the letter reveals the information referred to was country information excluded from the operation of s.424A(1) by s.424A(3)(a) of the Act, as it was information of a non in-personam nature. In any event, no legal error arises from the Tribunal seeking comments in this regard.
The Tribunal’s decision record reveals that at the hearing it purported to put certain information to the applicant pursuant to s.424AA of the Act ([53] – [55] at CB 225). This information was said to be derived from the applicant’s application for a tourist visa. This, on its face, is not information caught by any exemption in s.424A(3) of the Act.
However, the Minister submits this was not “information” for the purposes of s.424A(1) of the Act, because it did not amount to a “rejection, denial or undermining” of the applicant’s refugee claims (SZBYR v Minister for Immigration and Citizenship[2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) at [17]-[18]).
I have some difficulty with the Minister’s submissions in this regard. While the Tribunal’s decision record can inform as to what “would be” the reason for affirming the delegate’s decision, it must not be forgotten that in SZBYR the High Court emphasised the temporal application of this section (see at [17] of SZBYR).
In this regard, it may be said to have been prudent of the Tribunal to have employed the device (as it did) found in s.424AA of the Act, which through the operation of s.424A(2A) of the Act, means it can discharge its obligations under s.424A(1) orally at the hearing (SZMCDv Minister for Immigration and Citizenship[2009] FCAFC 46; (2009) 174 FCR 415). Either way, however, no legal error is revealed.
As to the remainder, what the applicant gave in writing to the Minister’s department in connection to his protection visa application and what he gave and told the Tribunal, and country information, are all exempt from the operation of s.424A(1) of the Act by operation of s.424A(3)(ba), (b) and (a) respectively.
In all, ground three is not made out.

Conclusion

None of the applicant’s grounds, nor what he put to the Court, reveals jurisdictional error on the part of the Tribunal. To succeed in his application, the Court would need to, at least, discern such error. In the circumstances, the application should be dismissed. I will make an order accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 19 March 2012