SZQQU v Minister for Immigration
[2014] FCCA 425
•11 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQQU v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 425 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse applicant the grant of a Protection (Class XA) visa – matter remitted to Federal Circuit Court by Federal Court to be re-determined according to law – prior decision made otherwise than in accordance with procedural fairness – adjournment of final hearing not granted to obtain full transcript of Tribunal hearing – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R(3), 91X, 54, 56, 57, 58, 415(1), 424 |
| Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 Minster for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NADH of 2001& Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte H & Anor (2001) 179 ALR 425 SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 SZQQU v Minister for Immigration & Anor [2012] FMCA 278 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 Tin Shwe v Minister for Immigration and Multicultural Affairs [2000] FCA 988 WABCof 2002 v Ministerfor Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 |
| Applicant: | SZQQU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2114 of 2011 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 10 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Counsel for the First Respondent: | Mr J. Smith |
| Solicitor for the First Respondent: | Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 20 September 2011 and amended on 24 January 2012 be dismissed.
The Applicant pay the First Respondent’s costs and disbursements of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZQQU.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2114 of 2011
| SZQQU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1006778, a decision of Tribunal Member C. Long dated 25 August 2011, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision The Minister for Immigration and Citizenship) (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the first respondent, the Minister, filed a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The Minister read the affidavit of Elizabeth Mi, sworn 27 March 2013, attaching a transcript of the Tribunal hearing conducted on 9 December 2010 (the “Mi Affidavit”). The Minister’s representative sought to tender a schedule that set out the relevant extracts of the evidence relating to the transcript of the Tribunal hearing. The applicant failed to file or read his own affidavit annexing the transcript of the Tribunal hearing at “JHG1”, the affidavit of SZQQU (the “JHG Affidavit”), affirmed on 12 June 2012 and filed in the Federal Court proceedings before Griffiths J on 12 June 2012 (proceedings NSD538/2012). This oversight may be due to the applicant being a self-represented litigant, not realising that the materials filed in the appeal application did not automatically flow back to this Court. However, as both the Minister’s representative and the applicant himself referred to the JHG Affidavit, I sought to gain access to the JHG Affidavit and the applicant’s submissions from the Federal Court so as to fully appreciate the applicant’s claims.
By orders made by the Court on 18 December 2012, the applicant was granted leave to file and serve any additional affidavits upon which we wished to rely. The applicant was also granted leave to file and serve an outline of written submissions fourteen (14) days before the hearing. The applicant elected not to file any affidavits or written submissions.
A judgment in the matter was handed down in these proceedings by his Honour Raphael FM (as he was then) on 3 April 2012: SZQQU v Minister for Immigration & Citizenship & Anor [2012] FMCA 278 where his Honour dismissed the application. The applicant appealed that decision in the Federal Court before Griffiths J (proceedings NSD538/2012). Griffiths J found that it was procedurally unfair for Raphael FM not to deal with the applicant’s application for an adjournment to enable a transcript of the Tribunal hearing to be provided to the Court, but noted that the Minister was not conceding that there was a jurisdictional error on the part of the Tribunal.
His Honour Griffiths J made the following orders in proceedings NSD538/2012:
1. The application for an extension of time to file and serve a notice of appeal is allowed.
2. The appeal is allowed.
3. The judgment and orders of the Federal Magistrates Court (as it was then) dated 21 March 2012 are set aside.
4. The matter is remitted to the Federal Magistrates Court of Australia to be redetermined according to law.
5. The first applicant is to pay the appellant’s costs as agreed or taxed.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.
The applicant is a citizen of the People’s Republic of China (“China”) who first came to Australia in June 2009 for several days and again in February 2009 for nine days. He last arrived in Australia on 1 March 2010 as the holder of a temporary business visa. On 24 March 2010 he applied for a Protection visa. Despite the applicant’s wife and daughter being in Australia at the time the applicant applied for a Protection visa, neither of them were included in that application.
The applicant claimed to fear harm from the authorities in China because he had spoken out against the Government and other institutions in connection with the high price of real estate. He claimed that as a result he was forced to quit a large joint venture and that the local authorities obtained an order freezing some of his company’s and his personal assets. He said that he had successfully appealed from that judgment, but that the authorities had interfered with the appeal decision.
The applicant claimed that after he arrived in Australia in March 2010, he discovered that his internet blogs had been blocked, all of his assets had been frozen and he learned that two false charges had been laid against him. He also claimed that he had submitted a number of articles critical of the Chinese authorities to Chinese newspapers here and had become a key person in the Chinese Jasmine Revolution movement.
On 29 July 2010 a delegate of the Minister made a decision to refuse to grant the applicant a Protection visa and the applicant applied to the Tribunal for review of that decision. The applicant submitted a number of written submissions to the Tribunal and appeared at a hearing on 21 October 2010 and 9 December 2010 to give evidence to make submissions in support of his claims. The Tribunal handed down its decision on 25 August 2011.
The Tribunal’s Decision
The Tribunal, in its Decision Record handed down on 25 August 2011, found that the applicant did not come to Australia because he feared that he would be harmed for speaking out against the Chinese authorities. It found that the applicant had not spoken out as claimed, that the authorities were not interested in him for that reason, and that his assets were not frozen and no false charges laid against him for that reason (CB 213 at [69]).
The reasons for the Tribunal’s findings were:
a)First, if the applicant had in fact feared serious harm in China, he would not have returned there from Australia on two occasions (CB 213-214 at [70]);
b)Secondly, the claim that the authorities were interested in the applicant and, to the extent that he claimed that there were false charges against him as at March 2010, was inconsistent with information concerning the ability of people of interest to the authorities to leave China (CB 214 at [71]);
c)Thirdly, if there were charges against the applicant, the Tribunal would have expected him to be able to tell it more and to produce more documents about them (CB 214-215 at [72]); and
d)Fourthly, the fact that the applicant had incorporated a company in Australia and had stated that he wished to expand his business to here and indicated that his purpose in coming here was to do just that (CB 215 at [73]).
The Tribunal did accept that the applicant had submitted a number of articles in Australia critical of the Chinese authorities and was involved in the Chinese Jasmine Movement but was not satisfied that this was for any reason other than to strengthen his claim to be a refugee (CB 215-216 at [75]). For that reason, in light of s.91R(3) of the Migration Act , the Tribunal disregarded that conduct.
For these reasons, the Tribunal concluded that there was no real chance that the applicant would suffer persecution on his return to China in the reasonably foreseeable future from the authorities or anyone else for a Convention reason (CB 216 at [77]).
Current Proceedings
The applicant filed his originating application in this Court on 17 November 2011. The applicant filed an amended application on 24 January 2012 (the “Amended Application). The Amended Application seeks the following orders:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The two grounds of the Amended Application were not particularised and are as follows:
1. Serious mistake and misunderstanding made by the Tribunal.
2. The Tribunal did not completely apply s.91R(3), as it refused to find the possibility of me meeting s.91R(3)(b). The Tribunal also violate ss.55, 56, and 58 of the Act.
Under each ground appear a series of paragraphs supporting the applicant’s claims. Given that no written submissions were filed by the applicant, I will treat these paragraphs as the applicant’s written submissions.
Applicant’s Submissions
I have attributed to the applicant’s submissions a letter as to identify each paragraph.
1. Serious mistake and misunderstanding made by the Tribunal
a) On paragraph 71 of the Decision Record, (page 214 of Green Book) the Tribunal said: “In the Tribunal’s view the applicant has given confused and conflicting evidence to the Tribunal about when false charges against him were made and when he became of adverse interest to the authorities in China.”
b) On the same paragraph, the Tribunal said: “He claims that he was adverse interest to authorities after he came to Australia (March 2010) but also claims that some of the assets were frozen by authorities in 2009 because he had spoken out against the government in China.” (Para. 71 Decision Record, P214 Green Book)
c) I said clearly at My Statement that “…the local county government manipulate the local court of law created the excuse of owing money and frozen some of my company and my personal bank account in August 2009.” (Para.6, P32 Green Book)
d) At the same Statement, I said: “Only few days after I arrived in Australia (March 2010), I was informed by my enterprises in Shanghai that all of my company bank account and my personal bank account were frozen.” (Para.8, P32 Green Book)
e) At same Statement, I said: “The government did not stop its persecution after they destroyed my business. Only few days ago, Director Lin from finance bureau of Tuanfeng County informed me that Tuanfeng County is planning to charge me with a criminal matter - withdraw registered capital.” (Para.1, P33 Green Book)
f) I have mentioned these two incidents to Tribunal on different occasions through my representative as well as at my interview with the Tribunal. The Tribunal can see clearly that the two incidents I mentioned with Tribunal at interview are consistent with all of my previous expression. But I did not think I was adverse interest to authorities during the first incident in August 2009. My understanding is that to be adverse interest to authorities must be on the list of wanted man, must not be able to pass through Chinese customs freely. At August 2009, I still had freedom of movement. I still can fight back and get the Court revoke the decision of frozen my bank accounts. (Para 7, P32 Green Book). On the 13/01/2011 submission of my representative, I asked my representative to write: “…3. He did get his passport in 2009 and has entered to Australia in June 2009, February 2010 and March 2010, but did not mean he is still safe to go back to China. Because everything changed on the 9th of March 2010. He believes he must be adverse interest to the Chinese authorities after the 9th of March 2010.” (Para. 3 from the bottom, P136 Green Book)
g) The Tribunal may consider I was adverse interest to the authorities when my bank accounts frozen by the Court in August 2009, but I did not think it was. This is only two different understandings about what is “being adverse interest to the authorities”. It was the Tribunal who confused itself and mistakenly found I have given confused and conflicting evidence about when I was adverse interest to the authorities.
h) With regard to the question of “when false charges against me were made”? The Tribunal said: “He told the Tribunal that there were two criminal charges made against him after he came to Australia, one was withdrawing money and another was insider trading… When the Tribunal queried why the false charges would be made against him at that time in March 2010, after he came to Australia, given that he claims he was speaking out against the government for some time before that time, from 2008, he said that he discovered there was one charge against him before March and that some inside the Bureau of Finance said there could be adverse things against his company and said that he withdrew money from the company; he discovered this specific charge against him some time before March and after the proceedings with Tuanfeng” (Para. 71 Decision Record; P214 Green Book)
i) At My Statement dated on 21 March 2010 (Para. 1 & 3 from Bottom, P32 Green Book, my Description dated on 20 June 2010 (Para.2 & 3 from bottom, P58 Green Book), my representative’s letter to RRT dated on 17 September 2010 (Para. 2, P96 Green Book), I clearly and consistently stated that in August 2009, the local Government of Tuanfeng County manipulate the local Law Court of Tuanfeng County charged me with owing money and then frozen some of my company’s bank account as well as my personal bank account. On these documents, I also clearly and consistently stated that in March 2010 after I arrived Australia (March 2010) I noticed that my e-business platform was blocked, I was informed that all my business account and personal account were frozen and all of my company and personal properties were under mandatory management by the government, I was informed that the government was going to make criminal proceeding against me for withdraw registered capital from company and inside trading. Even I did not get the official Court document for that criminal charge and I could not give an official date of when the charge were made, but I have enough evidence to believe it did happen.
j) During the interview with the Tribunal, I told Tribunal that when I had successful review and revoked the decision of frozen may bank accounts in December 2009, I talked to my lawyers about my intention to make a counter-proceeding against Tuanfeng County government. I told the Tribunal that, Director Lin of Tuanfeng County Financial Department told me that Tuanfeng County government was going to make criminal charge against me for withdraw registered capital from my company. I told the Tribunal that, at that time, I believe that was bluff in order to stop me making a counter-proceeding against the Tuanfeng County government. I never said there was an actual criminal charge against me made after Tuanfeng proceedings and before March 2010. (Check the interview record)
k) It is clear that on different occasions I constantly and consistently said there are 2 false charges were made against me. One is civil charge that was made in August 2009, one is criminal charge that I am not sure when it is made because I have not received any official court documents. I was only informed through different sources and got some indirect evidences. There is no “confused and conflicting evidence” ever been given to the Tribunal by me. It is the Tribunal who confused itself with the time of actual criminal charge made against me and the time of bluff made.
l) Why the Tribunal make such serious mistake? May be because of communication barrier caused by the interpreter, may be because of its bad faith or bias of the Tribunal. Either way the Natural Justice was denied in my case.
m) If it is a fair assessment, the Tribunal should follow s.54 of the Act to consider what I have said at “My Statement” (PP31-33 Green Book), at my “Description” (PP57-59 Green Book), and my representative’s letter on 17/09/2010 to the Tribunal (PP95-97 Green Book). So it will not be fooled by its own mistake.
n) If it is a fair assessment, the Tribunal should follow s.58 to invite me to give further information or comments to clarify Tribunal’s confusion.
o) But, the Tribunal did the opposite. Tribunal use its own mistake to accuse me not giving truthful evidence about my claim and use its own mistake refused to consider all the evidence I provided to the Department and to the RRT being reliable evidence of the facts in them or being for the reasons that I claims.
p) On its Decision Record, the Tribunal said: “Given that the Tribunal considers that the applicant has not given the Tribunal truthful evidence about his claims… the Tribunal does not consider that the copies of the documents described as the Notice of Assistance to Freeze the Deposit from the Hubei Province People’s Law Court and the part of the court decision to freeze the applicant’s accounts are reliable evidence of the facts in them. Nor does the Tribunal consider that the various blog reports, e mail account records and website reports are reliable evidence that the Chinese government has blocked or closed his e business or blocked/ closed his e mail or blog accounts or websites for the reasons that the applicant claims”. (Para. 3, Page 215 Green Book)
q) If it is not because of communication barrier caused by misinterpreting it must be Tribunal’s bad faith or bias. Either way, the Natural Justice was denied in my case.
2. The Tribunal did not completely apply s.91R(3), as it refused to find the possibility of me meeting s.91R(3)(b). The Tribunal also violates ss.54, 56 and 58 of the Act.
a) On its Decision Record, the Tribunal said: “The Tribunal is not satisfied on the evidence before it that the applicant has become involved in activities in Australia, including activities with the Chinese Jasmine Movement, and/or that he has expressed views, written/distributed/published articles, including on blog sites, e mails and on websites, critical of the Chinese government while he has been in Australia otherwise than to strengthen his claim to be a refugee and the Tribunal disregards that evidence for the purposes of this application.” (Para. 1, Page 216 Green Book)
b) Because the Tribunal predetermined I was not truthful and credible, it refused to consider all the evidence I provided about my conduct engaged in Australia, refused to consider the possibility of me meeting s.91R(3)(b), how can I satisfy the Tribunal that my conduct engaged in Australia is not solely for the purpose of strengthening my claim to be a refugee?
c) If it is a fair assessment, the Tribunal should be able to see all my conduct engaged in Australia are relevant to my PV application, I am not for the purpose of strengthen my claim to be a refugee, I am fully aware my conduct in Australia would attract attention of Chinese authorities and become adverse interest of Chinese authorities.
d) If it is a fair assessment, the Tribunal should follow s.54 to consider all the evidence I had provided;
e) If it is a fair assessment, the Tribunal should follow s.56 to find country information about Chinese government crackdown the Jasmine Movement in China.
f) If it is a fair assessment, the Tribunal should follow s.58 to invite me provide further evidence or make comment on its possible reasons of refusal.
g) If it is not because if communication barrier caused by misinterpreting it must be Tribunal’s bad faith or bias. Either way, the Natural Justice was denied in my case.
(Original emphasis)
As indicated elsewhere in this decision there was reason to access the court file of the Federal Court proceedings before his Honour Griffiths J because of the numerous references being made during the hearing before this Court to documents that had been filed in those proceedings, but not filed in this Court. This oversight may be due to the applicant being a self-represented litigant, not realising that the materials filed in the extension of time and appeal proceedings in the Federal Court did not automatically revert to this Court. On inspection of the court file in proceedings NSD538/2012, it contained a document titled “Applicant’s Outline of Submissions” filed 12 June 2012 and I reproduce part of that document in these reasons in an attempt to clarify aspects of the applicant’s claim. This document was not located until after the matter was reserved, but the approach adopted by the applicant during the hearing predominantly suggested that he was under the impression that the material he had filed in the appeal proceedings was before this Court, and may help to explain the rather unusual approach taken by the applicant in the presentation of this matter. Significantly, in the hearing before this Court none of the material which is set out in his outline of submissions was raised which made it more difficult to focus on the nature of his complaint. The applicant also failed to file in this Court the JHG Affidavit which has been filed in the Federal Court proceedings on 12 June 2012.
The content of the applicant’s outline of submissions relevant to these proceedings are as follows:
1. The Refugee Review Tribunal find that I am “not a credible person”
2. The Tribunal believe so because I “had given confused and conflicting” evidence on when I became adverse interest to Chinese authority and when a criminal charge brought against me.
3. The fact is that I have never given conflict evidence on those two issues. Tribunal has made wrong finding of fact.
4. I have the transcript of the Tribunal hearing prepared by a qualified translator. From the transcript, I notice that there is a serious misinterpreting about the question asked by the Tribunal.
5. the Member of the Tribunal asked: “A little minute ago, a couple of questions back, you just said that YOU DISCOVERED ONE CHARGE before March 2010, because someone from inside the Bureau of Finance said that there were adverse things against you or your company, because there was allegation you withdrew money from the company. Now, when did you discover that from this person you say that’s from the Bureau of Finance?” (On paragraph 4 from the bottom of page 30 of the Affidavit)
6. But, the interpreter said in Chinese was: “In the last two questions, you answered that, you said you have found one allegation before March. This is because someone from the Bureau of Finance who said that THERE MIGHT BE an allegation against you and your company because you withdraw money from the company. When did you find this from this staff of the Finance Bureau?” (Para. 2 bottom of page 30 of the Affidavit)
7. Before this question, I mentioned to the Tribunal about 2 different events, one is before March 2010, I heard from someone from inside the Bureau of Finance that THERE MIGHT BE a criminal charge against me; the other is after March 2010, I heard from my staff from Shanghai that there is an ACTUAL CRIMINAL CHARGE against me. (The last paragraph from the bottom of page29 of the Affidavit)
8. As the interpreter mistakenly interpreted AN ACTUAL CHARGE to THERE MIGHT BE A CHARGE, I could find the Member of the Tribunal has mixed up 2 times. Consequently, my answer led the Member of the Tribunal to believe I have given “confused and conflicting evidence”.
(Original emphasis)
Respondent’s Submissions
Ground One: Serious mistake of fact
The focus of this ground if the following statement by the Tribunal at [71] of the Decision Record where it stated:
71. In the Tribunal’s view the applicant has given confused and conflicting evidence to the Tribunal about when false charges against him were made and when he became of adverse interest to the authorities in China…
(CB 214)
The applicant denies that he gave confused and conflicting evidence to the Tribunal about the timing of either the false charges or the adverse interest in him. He relies on a number of his written statements to show that he was consistent in these respects and also says that his evidence at the second hearing was poorly translated. His submission is that the serious error was caused by either the interpretation or by the bad faith or bias of the Tribunal.
Two issues arise under this ground: first, whether it was open to the Tribunal to characterise the applicant’s evidence about these two matters as “confused and conflicting” and, secondly, if it was not open to the Tribunal, whether that constitutes or indicates jurisdictional error on its part. Both issues require close attention to the Tribunal’s reasons.
The Tribunal explained what it meant by “confused and conflicting” by two examples. The first is that the applicant claimed he was of adverse attention to the authorities after he came to Australia and yet he also claimed that the authorities had frozen his assets before he came to Australia because of his political statements. Those two claims clearly conflict. The applicant states in the Amended Application that his understanding that in order to be of adverse interest to the authorities in China one has to be on a list of wanted men. This may be the applicant’s understanding and, indeed, may well be correct; however, it does not mean that it was not open to the Tribunal to find that the applicant’s evidence in this respect was conflicting.
The second example relates to the false charges said to have been laid against the applicant. The Tribunal set out the applicant’s evidence in this respect as follows:
a)He told the Tribunal that there were two criminal charges made against him after he came to Australia, one was withdrawing money and another was insider trading and he did not appeal because he was too busy: see Annexure “JHG1” to the JHG Affidavit, p.27.9-28.1;
b)He said that he discovered this specific charge against him some time before March and that someone inside the Bureau of Finance said that there could be adverse things against his company and said that he withdrew money from the company; see Annexure “JHG1” to the JHG Affidavit, p. 29.9; and
c)He discovered the specific charge against him some time before March and after the proceedings with Tuanfeng; see Annexure “JHG1” to the JHG Affidavit, p.30.5 (the reference to “Tuanfeng” was in respect of his successful appeal from the orders freezing his assets in 2009).
The confusion and conflict here is readily apparent; on the one hand, the evidence is that the charges were laid after the applicant came to Australia in March 2010; on the other, one of them was laid before that time.
The applicant asserts that this confusion arose because of an error in interpretation. In particular, he says that his evidence was that he found out before March 2010 that there might be charges laid, as opposed to that there had been charges laid. In light of this assertion, it is necessary to set out the relevant passages of the Transcript together with the evidence concerning the correct interpretation.
The effect of the evidence is that there was a difference in nuance between what the Tribunal Member said (at p.30.7 of Annexure “JHG1”) and how the interpreter translated that into Chinese: “there was an allegation” and “a charge might be laid against you” or on the applicant’s version, “there might be an allegation”. That, however, does not change the fact that, earlier, the applicant had said that he had discovered one of the charges before March: Annexure “JHG1”, p.29.9. Indeed, that was repeated, through somewhat unclearly, at Annexure “JHG1”, p.30.5.
On analysis, the difference in what was said by the Tribunal and how it was interpreted did not change the confusing nature of the applicant’s evidence in respect of the charges. For that reason, it was open to the Tribunal to characterise the applicant’s evidence in this respect as confusing.
In any event, the point was not critical to the decision. The Tribunal did not make a categorical finding about what the applicant’s evidence was. It prefaced its consideration of the evidence about the charges by the phrase “to the extent that”. This indicates the finding that follows was only aimed at any claim (if there was one) that charges were laid on an alternative basis, namely, that the applicant had no real evidence about it in spite of having lawyers engaged in China (CB 214-215 at [72]). For that reason, any factual error about the applicant’s evidence had no impact on the decision and cannot be said to have led to jurisdictional error.
In Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303, North and Lander JJ (with Katzmann J agreeing) stated at [28]:
28. However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
It is uncontroversial that a mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [53].
Further, there is no denial of procedural fairness unless, unlike here, there is some practical unfairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.
The applicant has not shown that there was such a failure of the standard of interpretation as to deny him an opportunity to give evidence: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.
Finally, neither bad faith nor bias can be established where the fault is said to have been one of interpretation and there is nothing to show that the Tribunal was aware of that fault. In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 the Full Court gave a summary of the propositions relevant to bad faith, stating at [43]:
43. … [A]n allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and IndigenousAffairs [2002] FCA 805 per Hely J at [25].
Similar propositions apply to the allegations of actual bias. The Minister submits that the first ground of the Amended Application should be rejected.
Ground Two: Failure to apply s.91R(3), breach of ss54, 56 and 58
The JHG Affidavit suggests that the applicant was not given the chance to prove that his involvement in the Chinese Jasmine Movement was not solely for the purpose of strengthening his claims to be a refugee. The applicant appears then to adduce evidence to support the proposition that there was some other purpose: JHG Affidavit at [10]. That evidence is irrelevant because it was not before the Tribunal and the question before the Court is not that posed by s.91R(3) of the Migration Act – that was a matter for the Tribunal.
The issue before the Court is whether the applicant had the opportunity of addressing the issue raised by s.91R(3). There are two answers to this: first, the issue of s.91R(3) did not arise before the delegate because the applicant, at that stage, had not claimed to have done anything to continue to express his political view (CB 79.8). Once such a claim was made (CB 95-97), the question of the purpose of the relevant activities was an obvious one in light of the terms of the statute. For that reason, the applicant cannot be said to have had no opportunity to address that issue. Secondly, the Tribunal expressly raised the issue of s.91R(3) at the hearing on 9 December 2010 (CB 207 at [53]-[54]).
For those reasons, the Minister submits that the complaint concerning s.91R(3) should be rejected.
The balance of the ground is directed at ss.54, 56 and 58 of the Migration Act.
Section 54 places an obligation on the Minister to have regard to all the information in the application. That obligation is not addressed to the Tribunal. Even if it were, there is nothing to suggest that the Tribunal did not have regard to all of the information in the application.
Section 56 empowers the Minister to seek further information. In light of s.415(1), the Tribunal has the same power and it works simultaneously with s.424: SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 333. However, there is no obligation to exercise this power and it is not alleged that the failure to exercise it was so unreasonable as to vitiate the decision of the Tribunal.
Section 58 applies where a person is invited under s.56 to give additional information or under s.57 to comment on information. Neither of those circumstances arose in this case and the section had no work to do.
The Minister submits that Ground 2 of the Amended Application should also be rejected.
Consideration
The applicant’s application for an extension of time application and appeal (NSD538/2012) came before his Honour Griffiths J on Tuesday 6 November 2012. After making orders, his Honour suggested to Ms Rayment, who was appearing on behalf of the Minister, the following:
Ms Rayment, might I suggest, and I only suggest, that I think it would be appropriate for a copy of the transcript of today’s hearing to be including in the papers that go back to the Federal Magistrate for the purpose of the redetermination.
(Transcript, Federal Court, 6 November 2012, p.2)
Earlier in that hearing, when considering issues about the interpreter retained for that hearing, it was pointed out to his Honour that the interpreter had some previous involvement with the applicant, SZQQU. His Honour stated that:
…There is no readily available solution and I would not be prepared to allow a substantive hearing to take place, having regard to the complication raised by the interpreter having, apparently, given some advice to [the Minister]. It may be, however, Ms Rayment, that a threshold issue is capable of being considered today. And that is, having regard to your client’s apparent acceptance of the Federal Magistrate having acted otherwise than in accordance with procedural fairness. I understand that the Minister is prepared to consent to the Federal Magistrate’s decision being set aside and the matter remitted to him for reconsideration according to law.
I gather that the applicant opposes the remitter to the Federal Magistrate and would seek to have the matter remitted to Tribunal. It seems to me that that issue might be capable of being dealt with using the interpreter, if the applicant is willing to adopt that course. So in other words, I would invite the applicant, through the interpreter, if he agrees, to say to me whatever his wishes to say as to why the remitter should be to the Tribunal and not to the Federal Magistrates Court. And if he consents I see no reason why we could not use the services of the interpreter on that pure legal question. It would, in my view, be inappropriate to have the interpreter interpret for the applicant if the matter were to go into the merits of the application.
(Transcript, Federal Court, 6 November 2012, p.7)
His Honour then proceeded to explain to the applicant the function of the Federal Magistrates Court and Federal Court as follows:
…This Court sits as an Appeal Court from the decisions of the Federal Magistrates Court. This Court’s role, in simple terms, is to correct appealable error committed by the Federal Magistrates Court.
The Federal Magistrates Court has a different role and function. It hears judicial review application from the Tribunal. When this Court sits in its appellate jurisdiction, it’s not directly reviewing decisions of the Tribunal. Rather, as I have said, it hears appeals from the Federal Magistrates Court and is concerned to remedy error committed by that Court. It may well be that in an appropriate case this Court could order that a matter be remitted to the Tribunal and not simply to the Federal Magistrates Court. That would be an appropriate case, for example, if the Minister conceded that there was an error, not only on the part of the Federal Magistrates Court, but also on the part of the Tribunal.
(Transcript, Federal Court, 6 November 2012, p.3)
Griffiths J then stated the nature of the issue before the Federal Court:
I understand the Minster not to make such a concession here. The Minister has simply accepted an error in the nature of procedural unfairness on the part of the Federal Magistrate. The Minister is not conceding, as I understand it, any jurisdictional error on the part of the Tribunal. Whether or not the Tribunal has committed some jurisdictional error is a matter for the Federal Magistrates Court to determine on a remitter. I would expect that in any such remitted proceedings, the Federal Magistrates Court would take into account the evidence which has been put before this Court by the applicant relating to the alleged errors in interpretation.
The Federal Magistrate would, presumably, having regard to that material, consider and determine whether or not there was procedural unfairness at the Tribunal hearing. The Federal Magistrate would also, presumably, consider whether or not, if there were errors in the interpretation, there was a constructive failure to exercise jurisdiction by the Tribunal. But it seems to me that those are matters which are probably to be heard and determined by the Federal Magistrates Court in order to decide whether or not there was some jurisdictional error on the part of the Tribunal.
I do not regard this as an appropriate case for me to decide those matters in circumstances where I sit as an appeal court from the Federal Magistrate, and I am not exercising any jurisdiction directly in relation to the Tribunal. So my current tentative view is that the matter should be remitted to the Federal Magistrates Court for rehearing, taking into account the affidavit material which has been placed before me going to the applicant’s complaint regarding interpretation.
(Transcript, Federal Court, 6 November 2012, p.3-4)
His Honour then addressed the applicant’s complaint:
There was no transcript of the Tribunal hearing before the Federal Magistrate. My understanding is the applicant’s complaint is that what he said to the Tribunal was affected by misinterpretation, in particular that there was misinterpretation of the question that he was asked and that this then affected the answer that he gave to the question as it was interpreted to him. In simply terms, I understand him to be saying that the Tribunal was wrong to say that he was not a credible witness because he gave conflicting evidence, because that finding was tainted by the error in the interpretation.
…
Whether or not there was such a jurisdictional error, having regard to the material to which the applicant wishes to provide going to the question of misinterpretation, is a matter which the Federal Magistrate should now determine according to law. If the applicant is correct and persuades the Federal Magistrate, having regard to the transcript he has obtained that there was misinterpretation, it will be a matter for the Federal Magistrate to decide whether that amount to a different type of procedural unfairness or otherwise construe a constructive refusal to exercise jurisdiction on the part of the Tribunal.
(Transcript, Federal Court, 6 November 2012, p.5)
In accordance with the orders made by Griffiths J on 6 November 2012, the matter was remitted to this Court and relisted before me for a first court date directions hearing on 18 December 2012 where a timetable for the further case management of the proceedings was made. The applicant had previously filed the Amended Application on 24 January 2012 for the hearing before his Honour Raphael FM (as he was then) and it is that document upon which the applicant currently relies. The Amended Application pleads two grounds and, as a separate attachment, a document headed “Particulars Of Each Ground of Application”. A review of that document shows that it is more in the nature of submissions which are advanced in support of the grounds, rather than particulars of the grounds themselves. The Court acknowledged that the applicant is a self-represented litigant who received advice through the NSW RRT Legal Advice Scheme in relation to these proceedings, but was not provided with a draft further amended application.
Ground 1 of the Amended Application states “serious mistake and misunderstanding by the Tribunal”. The Court has been assisted by his Honour Griffiths J’s comments in NSD538/2012 which are set out at [44]-[48] above. Although not specifically stated by the applicant in the Amended Application, it appears that the basis of this ground is that the decision “is affected by a breach of natural justice in that the information on evidence given by the applicant at the Tribunal hearing was affected by mistranslation”. In the circumstances I will proceed on that basis.
As stated by his Honour Griffiths J, “the applicant’s complaint is that what he said to the Tribunal was affected by misinterpretation, in particular that there was misinterpretation of the questions that he was asked and that this was then affected by answers that he gave to the question as it was interpreted to him” (reproduced above at [46]). A review of the document titled “Particulars Of Each Ground of Application” does not contain any specific reference to any particular question or group of questions that fall into the category identifying misinterpretation. Rather, the bulk of complaints are directed at the misreading or misinterpretation of written documents such as the applicant’s statement (CB 31-33) and the letter from HP Migration & Education Agency (CB 136-137). The absence of any specificity in the claim makes it difficult for the Court to address this issue. Consequently, I will first examine the Transcript of the Tribunal hearing with comments prepared by Ms Mi and consider the errors in interpretation that she has located therein.
The evidentiary material before the Court in relation to the issue of interpretation is in the Mi Affidavit which relates to the Tribunal hearing held on 9 December 2010. The Decision Record dated 25 August 2011 (CB 195 – 217) indicated that there was two hearing dates, being 21 October 2010 and 9 December 2010.
The applicant in his Particulars at 1(a) (reproduced at [17] above) refers to the Decision Record at [71], which he claims is a critical passage in the Tribunal’s reasons. The Tribunal stated at [71]:
71. In the Tribunal’s view the applicant has given confused and conflicting evidence to the Tribunal about when false charges against him were made and when he became of adverse interest to the authorities in China. He claims that he was adverse interest to authorities after he came to Australia but also claims that some of the assets were frozen by authorities in 2009 because he had spoken out against the government in China…
(emphasis added)(CB 214)
Then at Particular 1(f) (reproduced at [17] above) the applicant claims:
f) I have mentioned these two incidents to the Tribunal on different occasions through my representative as well as at my interview with the Tribunal. The Tribunal can see clearly that the two incidents I mentioned with Tribunal at interview are consistent with all of my previous expression...
In the applicant’s Particulars at 1(k) (reproduced at [17] above) the applicant states:
k) It is clear that on different occasions I constantly and consistently said there are 2 false charges were made against me. One is civil charge that was made in August 2009, one is criminal charge that I am not sure when it is made because I have not received any official court documents. I was only informed through different sources and got some indirect evidences. There is no “confused and conflicting evidence” ever been given to the Tribunal by me. It is the Tribunal who confused itself with the time of actual criminal charge made against me and the time of bluff made.
Particular 1(q) (reproduced at [17] above) states:
q) If it is not because of communication barrier caused by misinterpreting it must be Tribunal’s bad faith or bias. Either way, the Natural Justice was denied in my case.
In respect of these claims, I note the circumstances which led to the adjournment of the first hearing before the Tribunal. These are recorded in the Decision Record at [33]-[34] where the Tribunal stated:
33. The applicant told the Tribunal that just before he came to Australia he was living in Shanghai at the address at Depeng Road, and that he lived there from 2003. He said that the premises were an apartment which he owned but it has now been confiscated by the government and is part of his frozen assets. The Tribunal asked the applicant whether there have been Court proceedings about his frozen assets and he said that all his assets are frozen including his apartment and his has been “banned” by the court because of his criminal offences.
34. Although there had been no difficulties with the interpreting during the hearing, and the applicant confirmed earlier in the hearing that he had no difficulties with the interpreter, at this point in the hearing when the Tribunal asked the applicant about whether he was charged with criminal offences and about court proceedings against him the interpreter was having difficulties with certain technical words and the Tribunal adjourned the hearing so that another interpreter could be engaged to complete the hearing.
(CB 201-202)
Of particular interest are the Tribunal’s comments in [34] of the Decision Record noting the initial acceptance of the interpreter by the applicant, but then the sudden concern of the Tribunal with the standard of interpretation when the issue of criminal charges arose. The Transcript of the initial Tribunal hearing on 21 October 2010 is not before the Court, nor does it appear that any attempt has been made for its preparation for reading into evidence.
At the reconvened hearing before the Tribunal on 9 December 2010, this issue again arose and has addressed in the Decision Record at [41], where the Tribunal stated:
41. …The Tribunal asked him why that would suddenly happen in March 2010. The applicant said it was a long story and there was litigation against him and the company but in his view the charges were not valid. He explained that there are two charges pressed against him in China namely the company had stolen money and that the company was involved in insider trading. The Tribunal asked the applicant when he found out about the specific charges and noted that in the submissions received by the Tribunal in September 2010 it was indicated that he was assuming that there were criminal proceedings against him. The applicant said that there were two charges occurred after he came to Australia and they were not valid otherwise why would they have not brought in 2007, 2008 and 2009. He said that the charges were fabricated because of his political beliefs and activities. The Tribunal queried again why this occurred in March 2010 after he came to Australia and noted that his business visa was about to expire in May 2010…
(CB 203)
The Transcript prepared on behalf of the applicant in the Federal Court proceedings before Griffiths J, which were remitted to this Court, was not before this Court until judgment had been reserved. On 18 December 2012 at the first court date directions hearing the following orders were made:
1. Other than the Green Book, all evidence relied upon by the parties shall be presented by way of affidavit. Evidence of a Tribunal hearing shall be presented as a transcript verified by affidavit and a tape recording shall not be received without the leave of the Court obtained prior to the hearing.
2. The applicant must file and serve any additional affidavits by 11 March 2013.
Despite being present when the above orders were made, no attempt was made on behalf of the applicant to file and read in these proceedings the JHG Affidavit with the Transcript annexed. Further, no written submissions have been filed making any attempt to identify the passages which he claims were misinterpreted to the extent that it led the Tribunal into error in its decision because it was not presented with the applicant’s arguments. Consequently, if a strict approach was adopted in respect to this aspect of these proceedings, the Court would have to rely upon the affidavit prepared by Ms Elizabeth Mi, together with the Court presumably being invited to read the Transcript in an attempt to identify these alleged errors in interpretations which I will refer to below. It should be noted that the Transcript annexed to the Mi Affidavit at Annexure “EM.1”is the same Transcript annexed to the JHG Affidavit at Annexure “JHG1”.
As indicated above, the Federal Court file in respect of the applicant became available to this Court after judgment was reserved. It contained the JHG Affidavit which was to be filed in these proceedings, but, due to some misunderstanding on the part of the applicant did not occur. As indicated earlier, this may be due to a misunderstanding on the applicant’s part as he is a self-represented litigant and may not be aware that material filed in the Federal Court proceedings was not automatically transferred to the file in the proceedings before this Court. Contained within the JHG Affidavit is a clearer statement of the applicant’s claim from which I reproduce the relevant paragraphs to assist in the understanding of the issue in dispute. I again adopt this approach in an attempt to provide the applicant with procedural fairness, noting that the matter has been remitted to this Court to be re-determined according to law because a prior decision of this Court was made otherwise than in accordance with procedural fairness. I would have adopted a different approach if the applicant had been represented, but it is abundantly apparent that he believed the material contained in his affidavit was before the Court and, consequently, he did not seek to advance his argument any further.
The JHG Affidavit states the following at [2]-[8]:
2. I have prepared transcript of my RRT hearing record by a qualified translator. (Annexure JHG1)
3. On paragraph 4 from the bottom of page 30 of the Affidavit, the Member of the Tribunal asked: “A little minute ago, a couple of questions back, you just said that YOU DISCOVERED ONE CHARGE before March 2010, because someone from inside the Bureau of Finance said that there were adverse things against you or your company, because there was allegation you withdrew money from the company. Now, when did you discover that from this person you say that’s from the Bureau of Finance?”
But, the interpreter said in Chinese is: “in the last two questions, you answered that, you said you have found one allegation before March. This is because someone from the Bureau of Finance who said that THERE MIGHT BE an allegation against you and your company. When did you find this from this staff of the Finance Bureau?” (Para. 2 bottom of page 30 of the Affidavit)
4. The Member of the Tribunal wanted to know when, from someone from inside the Bureau of Finance, I discovered there is an ACTUAL CHARGE against me for withdrew money from the company. It is clearly showed that the Member of the Tribunal mixed up 2 times. On is before March 2010, I heard from someone from inside the Bureau of Finance that THERE MIGHT BE a criminal charge against me; the other is after March 2010, I heard from my staff from Shanghai that there is an ACTUAL CRIMINAL CHARGE against me.
5. As the interpreter mistakenly interpreted AN ACTUAL CHARGE to THERE MIGHT BE A CHARGE, I could find the Member of the Tribunal has mixed up 2 times. Consequently, my answer led the Member of the Tribunal to believe I have given “confused and conflicting evidence”.
6. During the Tribunal hearing, before the above question, the Member of the Tribunal asked me: “The original question I asked you was: when did you find out about these two specific charges? Because they are not, as far as I recall, referred to specifically in these papers, and in fact, the submission that I’ve got in September, half a month ago, would indicated that you were assuming the criminal proceedings that have been issued against you. So when did you find out about these specific charges?” (Para. 4 of page 29 of the Affidavit)
I have cleared answered that: “I discovered one of those before the Spring Festival, so before March. The other one (was) after March. Before March, someone inside the Bureau of Finance told me that there might be adverse factors against myself, against my company. I was confused what these could be? In this advice they were saying that I had withdrawn capital money from the company.” (Last para. Of page 29 of the Affidavit).
7. In all my written statement made to the Department and the Tribunal, I never given any “confused and conflicting evidence”, only the misinterpretation by the hearing interpreter had caused the Member of the Tribunal to believe I had given the confused and conflicting evidence”.
8. The Member of the Tribunal did not give me a chance to explain these “confused and conflicting evidence”, and the Member further mistakenly refused to consider all other evidences were “reliable evidence of the facts in them” because of the misinterpretation by the interpreter. (Para. 3, page 215 Green Book)
(Original emphasis)
Ms Mi is a NAATI accredited translator and interpreter in the Mandarin language. Ms Mi sets out the following background information in the Mi Affidavit, which was prepared on behalf of the Minister, as follows at [1]-[9]:
1. I make this affidavit based substantially upon my specialised knowledge, but also on the information contained in the transcript and the recording of the Tribunal hearing. Annexed and marked “E.M1” is the transcript of the Tribunal hearing.
2. I have read, understood and complied with Practice Notice CM 7.
3. I am a NAATI accredited translator and interpreter in the Mandarin language with NAATI number 38721.
4. On 15 August 2012 I was engaged by Sparke Helmore Lawyers to review court documents and an audio recording to confirm whether a transcript of a Refugee Review Tribunal (RRT) hearing conducted on 9 December 2010 (transcript) was an accurate translation of the audio recording of the same RRT hearing conducted on 9 December 2010 (recording).
5. I listened to the recording from time 0.46.30 to 1.11.00 and compared this against pages 26 to 34 of the transcript. In particular, I checked the accuracy of the RRT hearing interpreter’s translations of the Member’s questions into Chinese, and the Applicant’s responses into English.
6. I confirm that the transcript of what was said by the Applicant as translated by the interpreter before the RRT (RRT hearing interpreter) is correct, except for some minor grammatical errors. I consider these minor errors were reasonable given the difficulty of discerning what was said at the hearing and the ambiguity of the expressions used by the Applicant.
7. I believe the RRT hearing interpreter did a very good job under the circumstances. The Applicant spoke in long segments, including very complex Chinese and with unclear grammar and punctuation, and some of the words and expressions used by the Applicant have a number of alternative translations into English.
8. I confirm the RRT hearing interpreter did his best to translate what was said by the Applicant from the language used, the context of the discussions, and the manner in which it was said. In my view, the RRT hearing interpreter accurately what was said at the hearing.
9. I have extracted the following relevant passages from the transcript. I have reproduced what was said by the Member (“M”) , and how the RRT hearing interpreter translated the Member’s (“I-M”) and Applicant’s (“I-A”) questions and responses. I have also provided my own translations of the Member (“EM-M”) and Applicant (“EM-A”) for comparison, and my comments (“EM”).
In respect of the approach adopted by Ms Mi in the Mi Affidavit at [9], she has identified eight passages from the transcript, identified as Annexure “E.M1”. The relevant passages are:
a)Page 26 of Transcript, line 5 (Mi Affidavit at [10]);
b)Page 26 of Transcript, line 3 from bottom of page (Mi Affidavit at [11]);
c)Page 28 of Transcript, line 4 (Mi Affidavit at [12]);
d)Page 29 of Transcript, line 7 (Mi Affidavit at [13]);
e)Page 30 of Transcript, line 13 from bottom of page (Mi Affidavit at [14]);
f)Page 31 of Transcript, line 13(Mi Affidavit at [15]);
g)Page 31 of Transcript, line 6 from bottom of page (Mi Affidavit at [16]); and
h)Page 34 of Transcript, line 6 (Mi Affidavit at [17]);
The Transcript is 71 pages in length.
The Mi Affidavit extracts a number of passages from the Transcript where Ms Mi has reproduced what was said by the Tribunal Member and how the interpreter translated the member’s and the applicant’s questions and responses. Ms Mi has also provided her own translation of the Tribunal Member’s and the applicant’s questions and responses for comparison. Ms Mi has also added her own comments for clarification on some translations.
In the extracted passaged below “Translation of Hearing Interpreter” or “Translation of Applicant” refers to an independent interpretation of the December 2010 hearing before the Tribunal prepared by a Mandarin-English translator retained by the applicant, Ms Ana Zhao a NAATI professional translator, which is Annexure “JHG1” to the JHG Affidavit. As indicated earlier in this judgment a copy of the Transcript was annexed to Mi Affidavit that was filed and read in these proceedings by the Minister.
The applicant’s case focuses on one particular passage in the Transcript appearing at p.30, line 13 (see [65(e)] and [79]-[83]), however I have included all the errors identified by Ms Mi therein.
At p.26 of Annexure “E.M1” (see [65(a)] above), the context of the hearing is set out, where the applicant claimed that after he left China his property was confiscated and he heard there had been charges laid against him.
At p.26, line 5 of Annexure “E.M1” (see [65(a)] above), the following exchange occurred between the Tribunal Member and the applicant:
Member: What has happened to the unit?
(Translation of Hearing Interpreter: What has happened to the unit?)
Interpreter: I said previously that my property/my house, my personal/ private fixed assets in the bank, my corporate assets, have been forcibly put under trusteeship by the authorities, or otherwise, taken by force.
(Translation of Applicant: I said previously, that my property, my personal fixed assets, my assets in the bank, my corporate assets, have been forcibly put under trusteeship by the authorities, or otherwise, taken by force.)
In relation to the above extract, in the Mi affidavit at [10] Ms Mi states:
EM-A (Ms Mi’s translation of the applicant): I mentioned in my previous material, my house, all my private fixed assets, including my assets in the bank and my company’s assets were all under the government’s mandatory trust. They said under the trust. Actually, it was a mandatory pillage.
EM (Ms Mi’s comments): The Applicant used the Chinese legal term for “mandatory trust” and “pillage”.
At p.26 of Annexure “EM.1” (see [65] (b) above), in the second half of the page, the following exchange occurred:
Member: So when did that happen?
(Translation of Hearing Interpreter: So when did that happen?)
Interpreter: All that happened after I came to Australia on the 1st of March, when I was told by a phone call from family.
(Translation of Applicant: All that happened after I came to Australia on the 1st of March, I was told when I called my family. It is after 1st of March.)
Member: Why did that suddenly happen in March 2010? What was the trigger of that happening in March 2010?
(Translation of Hearing Interpreter: Why did these all suddenly happen in March 2010? What was the trigger of that happening in March 2010?)
Interpreter: This is a long story, I’ve got to tell bit by bit.
(Translation of Applicant: This is a long story, so I’ve got to tell bit by bit.)
Interpreter: Because all my assets have been, in my opinion, inappropriately detained. It’s because of the litigations put about by the authorities, against myself, against the company, criminal litigations.
(Translation of Applicant: Because all my assets have been, in my opinion, inappropriately detained. It’s because of the litigations put about by the authorities, against myself, against the company, they are criminal litigations.)
Interpreter: However, I believe on the other hand, such charges are not valid at all. Basically there are two charges being pressed: one is that the company has got involved what is called the inside trading or several liability trading.
(Translation of Applicant: However, I believe on the other hand, such charges are not valid at all. Basically there are two charges being pressed: one is withdrawing capital from the company: the other is that the company has involved in what is called the inside trading or several liability trading.)
Member: Just stop for a minute, the first one is that the company has withdrawn money?
Interpreter: (explaining to the Member). Yes, withdrawn or distilled money. Just a second member. I brought two copies of the equivalent evidence of the company, if you need specific information. I believe the second charge should be called inside trading, or if you like, several liability.
Member: When did you find out about these charges, because they don’t appear to me to be in any of these documents you give me so far, these references to these two charges?
…
Interpreter: These two charges only emerges after I came to Australia. The reason why I believe that these two charges are not valid: is because on one hand, the very reason that I’m confused about myself is that, why these charges are not sought in either 2007, 2008 or 2009. Why exactly on or after 1st March 2010? That’s the first point of doubt.
(Translation of Applicant: These two charges only emerge d after I came to Australia. The reason why I believe that these charges are not valid: is because on one hand, also the very reason that I’m confused about myself is that, why these charges are not pressed in either 2007, 2008, or 2009. Why exactly on or after 1st March 2010? That’s the first point of doubt.)
In relation to the above extract, the Mi Affidavit at [11] states:
I-A (hearing interpreter’s translation of the applicant): It’s a long story, so I’ve got to tell bit by bit. Because all my assets have been, in my opinion, inappropriately detained. It’s because of the litigation put about the authorities against the company, criminal litigations.
EM-A (Ms Mi’s translation of the applicant): It’s a long story. I have to tell slowly. All my assets, in my opinion, “distrained” inappropriately, was because of the charges, criminal charges at the local level against my company and myself.
EM (Ms Mi’s comments): The Chinese words used by the Applicant (Chinese characters) translate as “assets distrained”, not (Chinese characters) “detain” (which is used for people). The Applicant also used a Chinese word (Chinese character), which literally means “local place”. In this context, the Applicant was referring to the authorities at the local level. In my view the RRT interpreter’s use of the word “detain”, did not cause confusion or any breakdown of the communications, but was rather a less perfect choice of word.
At p.28, line 4 of “EM.1” (see [65(c)] above), the following exchange occurred:
Member: That is what I am asking you.
(Translation of Hearing Interpreter: That is what I am asking you.)
Interpreter: I believe these charges are being fabricated by government because of my belief in terms of the politics, political positions, and the system, so that is why the authorities have put up all these charges against me.
(Translation of Applicant: I believe these charges are being fabricated by government because of my belief in terms of the politics, political positions, and the system. That is why the authorities have put up all these charges against me.)
At [12] of the Mi Affidavit she states the interpretation of the applicant’s answer to be:
EM-A (Ms Mi’s translation of the applicant): I believe, those framed cases, because of my previous personal opinions upon, in terms of the politics or the system, were framed cases against me put forward by the government.
This difference is one without any real distinction.
Further down the page at p.28 of Annexure “EM.1” (see[65] (c) above), the Tribunal Member expressed the core of the relevant concern:
Member: But you have been expressing these opinions for a long time, according to these papers from 2008, why would they suddenly do this in March 2010, when you are in Australia with your business visa about to expire in May?
Interpreter: I actually had been in the dark for quite some time. Until now, I really have got a true picture.
(Translation of Applicant: I actually had been in the dark for quite some time. Until now I really have got a clear picture of these.)
Interpreter: Their efforts of cracking down didn’t stop, and the development has been going on continuously, step by step, gradually.
(Translation of Applicant: Their efforts of cracking down didn’t stop, and the cracking down process development continuously.)
At p.29, line 7 of Annexure “EM.1” (see [65(d)] above), the following exchange occurs:
Member: The original question I asked you was: when did you find out about these two specific charges? Because they are not, as far as I recall, referred to specifically in these papers, and in fact, the submission that I’ve got in September, half a month ago, would indicate that you were assuming the criminal proceedings that have been issued against you. So when did you find out about these specific charges?
(Translation of the Hearing Interpreter: The original question I asked you was: when did you find out about these two specific charges? Because they are not, as far as I recall, referred to specifically in these papers, and in fact, the submission that I’ve got in September, would indicate that you were assuming the criminal proceedings that have been issued against you. So when did you find out about these specific charges?)
Interpreter: Member, could you remind the applicant to pause from time to time?
Member: Yes, I’m sorry. Probably I should have done this initially. Mr [SZQQU], to enable the interpreter to better interpret what you are saying, it’s better if you answer in short sections. You can say anything you like, but just make a shorter response, so he could more accurately interpret.
(Translation of the Hearing Interpreter: Yes, I’m sorry. Probably I should have done this initially. Mr [SZQQU], to enable the interpreter to better interpret what you are saying, it’s better if you answer in short sections. You can say anything you like, but just make a shorter response, so he could more accurately interpret.)
Interpreter: From the records, I discovered one of those before the Spring Festival, so before March. The other one, after March. Before March, someone inside the Bureau of Finance told me that there might be adverse factors against myself, against my company. I was confused what these could be? In this advice they were saying was that I had withdrawn money – distilled money from the company.
(Translation of Applicant: From the records, I discovered one of those before Spring Festival, so before March. The other one, after March. Before March, someone inside the Bureau of Finance told me that there might be adverse factors against myself, against my company. I was confused what these could be? In this advice they were saying was that withdrawn capital money from the company.)
At the end of the paragraph, there are three lines which are the interpretation by the translator who has prepared this document, and these reveal what the hearing interpreter had said to that point to be fairly accurate. In the Mi Affidavit at [13] she states her interpretation of what the applicant had said to be:
EM-A (Ms Mi’s translation of the applicant): The discovery was: one before Chinese New Year, before March. The other one was after March. Before March someone told me, someone from the Finance Bureau told me that there might be some adverse factors against me personally and the company. At that time, I was confused. What the adverse factors were that could lead to the fabrication of a crime such as Flight of Capital?!
EM (Ms Mi’s comments): At this stage, the RRT interpreter asked the member to remind the applicant to pause from time to time. Then he began to translate according to his notes, which, while differing from my translation, in my opinion still conveys the context of the Chinese used by the Applicant. Though the crime is “Flight of Capital”, the term is “withdraw” money in the contest of an accusation or charge. In my view, this was a less perfect translation and no confusion was caused.
At p.30, line 13 from the bottom of the page of Annexure “EM.1”(see [65(e)] above), the following exchange occurred:
Member: So you discovered that before you came to Australia? When did you discover it? This one charge?
(Translation of Hearing Interpreter: One of the charges you found out before you came to Australia? So when did you discover it?)
Interpreter: This was actually after the successful review of a case between our-selves and the Tuanfeng authorities.
(Translation of Applicant: This was actually after the successful review of a case between our-selves and the Tuanfeng authorities.)
Member: When did you discover that there was a charge alleging that you withdraw money from the company? That’s a charge against you, so when did you discover that?
(Translation of Hearing Interpreter: When did you discover that there was a charge alleging you withdraw money from the company? That’s a charge against you, so when did you discover that?
Interpreter: That was after March. I was told so by the staff members in TUANFENG. One point before, one point after March.
(Translation of Applicant: That was after March. I was told so by the staff members in TUANFENG. There are two points. One is before 1st of March, the other one is after 1st of March.)
Member: A little minute ago, a couple of questions back, you just said that you discovered one charge before March 2010, because someone from inside the Bureau of Finance said that there were adverse things against you or your company, because there was allegation you withdraw money from the company. Now, when did you discover that from this person you say that’s from the Bureau of Finance?
(Translation of Hearing Interpreter: In the last two questions , you answered that, you said you have found one allegation before March. This is because someone from the Bureau of Finance who said that there might be an allegation against you and your company because you withdrew money from the company. When did you find this from this staff of the Financial Bureau?)
At [14] of the Mi Affidavit Ms Mi comments on and translates the passages noted directly above:
M (Member): A little minutes ago, a couple of questions back, you just said that you discovered one charge before March 2010. Because someone from inside the Bureau of Finance said that there were adverse things against you or your company, because there was allegation you withdraw money from the company. Now, when did you discover that from this person you say that’s from the Bureau of Finance?
EM-M (Ms Mi’s translation of the Hearing Interpreter): Just in the last two questions, your answer was that you found out one charge before March. That was because, at the time, someone from the Bureau of Finance said that because of your withdrawal fund from the company, a charge might be laid against you and your company. When did you find out this from the staff member from the Bureau of Finance?
EM (Ms Mi’s comments): Most people in the Chinese community find it hard to distinguish the difference between “charge”, to accuse someone of a crime, and “allegation”, to advance as argument, assertion, or to put forward some statement without proof. Chinese people are more familiar with the term “sue”. As the RRT interpreter translated using the word “charge, in order to use the correct grammar, he stated “might be a charge laid” instead of the expression used by the member of “there was allegation”. Consequently, there was a slight shift from the meaning of the Member’s expression of “there was allegation you withdrew money from the company”, to the Chinese translation by the RRT interpreter of “because of your withdrawal fund from the company, a charge might be laid against you and your company”. Looking at the context of the member’s question, the first part of the question sought to confirm the Applicant’s previous statement, whereas the main question in the second part of that segment asked “when did you discover”.
I pause at this point as this appears to be the focal point of the applicant’s claim in respect to misinterpretation. In the proceedings before this Court the applicant made no specific reference to this passage of questions in the transcript and the submission was contained in Annexure “JHG1”, p. 30.7 of the JHG Affidavit.
When the applicant was invited to make oral submissions before this Court he stated:
…I think that my evidence was distorted, it’s not my evidence. He use his understanding to look at my evidence. The key issue, the key point I want to raise, he mistaken is two – he mistaken two facts into three facts. That was totally different from the content in my affidavit before I submit it before the tribunal, also the affidavit I submitted before the court. The other party’s lawyer said that even if that tribunal was aware that the errors made by tribunal interpreter, but they – those errors were not material enough to amount to jurisdictional errors. I believe that the tribunal made wrong conclusion or make wrong assessment as to my credibility or my honesty because the tribunal was based on wrong information. Because at the tribunal just was based upon wrong information or wrong findings and in the end the tribunal just totally rejected my evidence in other aspects.
Sorry, I just – the lawyers or the other party’s lawyer agree that the tribunal member or tribunal interpreter did make some mistakes, but the other party’s lawyer didn’t directly answer to – answer that my inquiry and they didn’t give – the lawyer didn’t give direct answer as to whether the errors made by the tribunal interpreter was so serious that amount to jurisdictional errors. I have expressed myself very clearly in the affidavits I lodged before the court and before the tribunal. The tribunal translator really did make a very serious mistake, because the translator mistook the two different sides of facts into one. I have expressed myself about those two different set of facts and I could see that I had – they had me expressed clearly in the transcript. The tribunal member also made serious mistakes about how to understand my evidence.
I have expressed clearly that since 2008 that Chinese authority just started taking a serious actions or persecution against me. At that time I was not aware it was type of persecution, because I was not aware that it was going on. I was doing my own business. But from member’s understanding that he – the member made a conclusion that since 2008 I had been aware of the adverse action or persecution had been going on. And that as persecution has been just escalating over time, it was impossible for me to be aware that persecution is at the initial period…
(Transcript of Federal Circuit Court Proceedings NSD538/2012, 10 May 2013, p.12-13)
I agree with the submission made by Mr Smith that the differences in the passages of translation of what the Tribunal Member said are differences of degree (see written submissions at [27]-[29] above). Mr Smith argued that the difference in nuance is that instead of there having been an actual charge, there may have been an allegation of a charge. I agree with Mr Smith that this it is a very fine distinction with two answers to any claim of jurisdictional error. The first distinction is that it didn’t lead anywhere in the decision, principally because what the Tribunal found was on one understanding of the evidence, but not limited to that understanding. Secondly, there was an alternative basis for rejecting the fact that there were charges (see [29] above).
At p. 31, line 13 of Annexure “EM.1” (see [65(f)] above), it states:
Member: And what was that proceedings about?
(Translation of Hearing Interpreter: And what was that proceedings about?)
Interpreter: Two of the accounts of the company have been stopped. So I tried to ask the court to dismiss such a decision made previously to have closed down these two accounts. Due to some contradictions we have had, we had two companies being sued by the Tuanfeng authorities.
(Translation of Applicant: Two companies’ accounts have been stopped. The proceeding is “Immediate Implementation”. This decision is wrong. So I tried to ask the court to dismiss such a decision made previously to have closed down these two accounts. Due to some contradictions we have had, we had two companies being sued by the Tuanfeng authorities).
At [15] of the Mi Affidavit, Ms Mi comments on and translates the previous passages:
EM-A (Ms Mi’s translation of the applicant): At the time, two companies’ accounts were sealed up. The proceeding was “Immediate Implementation”. The decision was wrong. After their review, we asked them to withdraw it. Because locally there was a conflict between us and Tuan Feng, back then, they sued two of our companies.
EM (Ms Mi’s comments): The Applicant used the Chinese legal term “sealed up” (Chinese character). The Applicant also said that “there was on (Chinese character) at the local place between us and Tuan Feng”. The Chinese work used by the Applicant has two meanings, which depending on context can mean either contradiction or conflict. The interpreter translated the word as “contradiction”, although I prefer the translation of “conflict” as in English one would not say that there is a “contradiction” between one party and the other party but rather a “conflict”, causing one party to sue the other in the local court.
At p.31 line 6 from the bottom of Annexure “EM.1” (see [65(g)] above), it states:
Member: And you got a decision in your favour when you asked the court to reverse that decision to close down the accounts?
(Translation of Hearing Interpreter: And you got a decision in your favour when you asked the court to reverse that decision to close down the accounts?)
Interpreter: We have had a successful of this review, I’m not sure how to address that, but anyway we won the battle. But this was not enforced by the court, and we have had this subject of these proceedings, that is why these accounts have been closed down.
(Translation of Applicant: We have had a successful of this review, I’m not sure how to address that in Australia Law, but anyway we won the battle. But this was not enforced by the court, and we have had this subject of these proceedings with Tuanfeng, that is why these accounts have been unreasonably closed down. We reviewed and it was successful.)
Similarly, I agree with Mr Smith in his written submissions in respect of these provisions of the Migration Act which are referred to at [39]-[42] above. In the circumstances I am satisfied that Ground 2 of the Amended Application cannot be sustained and should be dismissed.
I now turn to address the issue of procedural fairness, of the lack thereof was the basis of the proceedings being remitted to this Court by the Federal Court.
The recent Full Court decision in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 per Allsop CJ, Flick and Robertson JJ provides a comprehensive statement in respect of procedural fairness concerning standard of interpretation afforded to an applicant. In that decision, his Honour Allsop CJ stated at [9]-[11]:
9. The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
10. How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health [2002] FCA 40; 115 FCR 561 at 583[84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
11. That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.
Allsop CJ in SZRMQ (supra) then reviewed a number of decisions of the Federal Court dealing with the question of adequacy or not of interpretation at [14]-[25] where his Honour stated:
14. In Perera, Kenny J, in a detailed and considered judgment, examined the place of adequate interpreting in the undertaking of a hearing under s 425(1) of the Act. The expression of reasoning in Perera is to be understood against the background of the form of the Act. Section 476(2)(a) of the Act specifically excluded natural justice as a ground of review. Thus, the principles of procedural fairness did not shape her Honour’s approach expressly. Rather, Kenny J focused upon the failure to provide an adequate or proper interpreting service as an error of law. After examining the transcript of Mr Perera’s “unresponsive” and “virtually incoherent” evidence in translation, Kenny J examined the place of interpreting under the Act. The applicant was “entitled to appear... to give evidence”: s 426(1)(a), and the Tribunal (if it could not make a decision favourable to the applicant without a hearing) “must give the applicant an opportunity to appear before it to give evidence”: s 425(1)(a). Kenny J said that if the Tribunal were to proceed with a hearing without an “effective opportunity” to give evidence, the decision would be reviewable under the then s 476(1)(b) or (c) or (e) (lack of jurisdiction, or lack of authorisation, or an error of law): 92 FCR at 16-17 [20]-[21]. Her Honour then examined at 18-20 [24]-[31] the role of the interpreter and the necessary standard of interpretation. In that context, the focus was on the minimum requirement of the content of the right, being the right to an interpreter and to a hearing. In Tran, the Supreme Court sought to define a standard of interpretation by reference to criteria that included continuity, precision, impartiality, competency and contemporaneousness. Kenny J was concerned with the need for precision or accuracy (as in a sense, we are here) and competency of the interpreter and the interpretation. At 92 FCR 22-25 [38]-[50] Kenny considered whether the standard of interpretation fell short of what was required. Her Honour put the question in [38] as “whether the material...is sufficient to make out his case that the interpretation...was so incompetent that he was prevented from giving his evidence”. Expressing the matter thus reflected the statutory context of the decision. Her Honour concluded that through repeated inadequacies the evidence was not given with any coherent accuracy. Kenny J recognised that the departure from the standard “must relate to a matter of significance for the...claim or the...decision”: 92 FCR at 23-24 [45].
15. In Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; 59 ALD 773 Lee J said that the essential requirement was that the interpretation be of a sufficient standard “to ensure that justice is done” 59 ALD at 782 [26]. I respectfully agree with that short statement of principle.
16. In Habtegebriel v Minister for Immigration and Multicultural Affairs [1999] FCA 1470, Tamberlin J accepted that there were misinterpretations but refused to set aside the decision because it had been based on objective country information and other evidence independent of the failure of communication. It is unnecessary to consider the correctness of this decision and whether or not questions of a denial of procedural fairness and a proper engagement of relief were elided.
17. In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant’s statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.
18. In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:
It is plain that there was a variety of factors operating upon the Tribunal’s determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.
Material irregularity in the process and the correctness of the outcome were thus separate.
19. In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; 115 FCR 1 at 6 [28], the Full Court (Tamberlin, Mansfield and Emmett JJ) referring to s 427(7) of the Act stated:
the proficiency in English [required]...is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance or his or her case and to respond to issues raised. It does not require any greater expertise in English.
20. That simple and, with respect, correct way of expressing the matter might, nevertheless, be seen to mask the factual difficulty in evaluating the adequacy of interpretation and the relationship between the materiality and number of errors and overall coherence of expression and understanding.
21. In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, Mansfield and Selway JJ, with whom Emmett J agreed, discussed the cases dealing with s 425. After referring to Singh, Ismail, Perera and Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; 183 ALR 188, their Honours said:
[17] ... In its written submissions the respondent [the Minister], after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
[18] The respondent’s acknowledgment in those terms seems to reflect the views of the Court in Singh (at 6[27]) and in Perera (at 22[38]-[41]) as to the first proposition and in Soltanyzand...at [18] as to the second. The appellant did not contend that a more stringent obligation lay upon the Tribunal. It is therefore not necessary to determine whether the existing authorities go so far as the respondent acknowledged.22. These passages are not without difficulty. Singh at 6 [27]-[28] referred to the reality of the opportunity to give evidence and present arguments. Perera at 22-23 [38]-[41] referred to the interpretation being sufficiently incompetent that the applicant was prevented from giving his evidence. In Perera at 23-24 [45]-[46] it was clear, however, that Kenny J was referring to matters of significance involving important issues, not to a complete incapacity to interpret. Thus, if what appears in (a) in [17] of Appellant P119/2002 were to be understood as the need to show the prevention from giving any evidence, it is not supported by Singh or Perera and would, in my view, be wrong. Further Soltanyzand at [18] does not squarely support para (b). The expression of the matter (albeit by reference to a submission of the Minister) in [17] of Appellant P119/2002 overly defines what is a more easily expressed and broader requirement: a fair hearing. That is best explicated by the kinds of considerations referred to above, by Robertson J in his reasons, and by the kinds of consideration referred to by Kenny J in Perera, recognising that the purpose of interpretation is to enable the matters referred to in Singh to occur: the applicant to give evidence and present arguments in order to communicate the substance of his or her case and to respond to issues raised. This implicitly incorporates understanding what the decision-maker is saying.
23. In WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131, Ryan J at [29] (with whom Tamberlin J and Middleton J agreed) referred to Perera, Soltanyzand, Appellant P119 of 2002 and WACO Minister for Immigration and Multicultural and Indigenous Affairs(2003) FCAFC 230; (2003) 131 FCR 511 at [63]–[68] in considering a ground of appeal that the mistranslation vitiated a hearing of the Tribunal, by reference to the Act not the principles of procedural fairness. His Honour referred to the need to “establish that he was effectively prevented from giving his evidence ... [or]... that errors had occurred in translation which were so material as to cause the decision-making process to miscarry”. Once again those passages should be read with care, and should not be understood as establishing a requirement to show that the person was prevented from giving any evidence at all, as opposed to the simple expression of a qualitative test in Singh.
24. It is unnecessary either to consider the operation of statutory provisions such as s 425 or to refer to any further decisions. None of these earlier cases was directed to the basic requirements of procedural fairness. Although following authorities of the Federal Court, it was an error in the approach of the primary judge to apply these cases as determinative of the governing principle of the operation of procedural fairness. The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process. As I have said earlier, I agree with the expression of the matter by Robertson J and that, fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done. The place for the appearance of justice being done lies in the rejection of the proposition that the matter is to be analysed solely by reference to causation directed by the reasons of the decision-maker. Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.
25. In those circumstances, while it can be put that administrative justice must be seen to be done, the preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.
The crucial issue in this case is whether the decision-maker, who rejected the applicant’s application for a Protection visa, was obliged to afford him procedural fairness. The primary basis for the applicant’s case in this proceeding is that he was denied procedural fairness in that he was not given an opportunity to deal with adverse material on which the decision against him was based. The claim centres on a mistranslation by the NAATI accredited translator during the hearing on 9 December 2010 and specifically the error made in the interpretation of the words “an actual charge” to “there might be a charge”. The full text of this exchange at the Tribunal hearing is set out at [79]-[83] above. The claim by the applicant is that due to this mistranslation the Tribunal mistakenly formed the view that the applicant’s answers were “confused and conflicting”.
His Honour Allsop CJ in SZRMQ (supra) stated at [5]-[10] and [24]:
5. Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.
6. The requirements of procedural fairness are not generally apt for precise delineation. Some aspects can be reduced to a verbal expression of law. The test for apprehended bias is perhaps an example of that. The difficulty in precise formulation of many aspects of the requirements is that the informing norm and root of the principle is fairness: Kioa v West [1985] HCA 81; 159 CLR 550 at 583-585. Even in relation to the proper test for apprehended bias, however, the use of the fair-minded observer in the construct imports the norm of fairness: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
7. Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at 56-57 [26]; and SZRUI at [5].
8. The requirement of power to be exercised fairly will generally carry with it the requirement to exercise the power in a way that is apparently fair. This derives from the recognition of the importance of the process of the exercise of state power and not just the correctness of the outcome. The process of the exercise of state power is integral to the legitimacy of the outcome of the exercise of that power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at 97 [19]; Assistant Commissioner Condon v Pompano Pty Ltd[2013] HCA 7; 295 ALR 638 at 693 [209]; NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; 115 FCR 561 at 583[84]; and SZRUI at [2].
9. The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
10. How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health [2002] FCA 40; 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
…
24. …The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process…
In SZRMQ (supra) his Honour Robertson J set out the principles to be applied in determining whether or not inadequate translation means that a hearing is not fair at [65]-[75]. His Honour stated:
The principles to be applied
65. The issue in the present appeal being procedural fairness under the general law, the analysis must be focused on the particular circumstances of the case: whether or not there has been a denial of procedural fairness is fact-sensitive.
66. The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision.
67. Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.
68. The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
69. If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
70. It will often be important to distinguish between a case where the mistranslation or non-translation is frequent or continuous, on the one hand, and a case, such as the present, where the errors are intermittent.
71. In the former case it will be easier to conclude that there has been a denial of procedural fairness because, considered overall, the process has miscarried. The cause may be incompetence of the translator in English or in the particular non-English language but the cause is of very little relevance in my opinion.
72. In the latter case, where the errors are intermittent, care must be taken to evaluate the overall fairness of the hearing as well as the individual instances in order to assess the quality of the process and whether it amounts to the applicant having had a reasonable opportunity to be heard and to present his or her claim.
73. It is also important, in my view, to keep separate questions of mistranslation and non-translation, on the one hand, and mere errors of fact on the other hand. Similarly, it may be that a translation is confused and confusing because what an applicant has said is confused and confusing.
…
75. I should add however that what is in my view the correct approach under the general law was, with respect, stated too narrowly by Logan J in SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274; (2012) 134 ALD 267 at [33] with reference to the decision of the Full Court in WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 at [29], which concerned the terms of the Act, that either or each of the following needed to be established:
(a) that the standard of interpretation at the interview by the reviewer was so inadequate that the appellant was effectively prevented from giving evidence at the hearing; or
(b) that errors were made by the interpreter at the reviewer interview, which were material to the conclusions which the reviewer made adversely to the appellant.
This is significant because that was the test which the primary judge, it seems, applied in the present case, see at [30] and [103] and [109]. That test is in substance the same as the test stated in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230at [17]- [18] which Allsop CJ has considered and questioned. In my opinion this test should not be applied to cases, such as the present, which involve the general law. It follows that I do not agree with the reasoning of the primary judge in various instances although I do agree with his Honour’s conclusion.
In the Tribunal’s Decision Record at [71] (CB 214) the Tribunal stated:
71. In the Tribunal’s view the applicant has given confused and conflicting evidence to the Tribunal about when false charges against him were made and when he became of adverse interest to the authorities in China. He claims that he was adverse interest to the authorities after he came to Australia but also claims that some of his assets were frozen by the authorities in 2009 because he had spoken out against the government of China…
(emphasis added)(CB 214)
Taking into account the principle to be applied as listed above, a general statement can be made that the Tribunal during the hearing was unaware of the alleged mistranslation, however, I note that the Tribunal Member terminated the hearing on 21 October 2010 due to the initial translator experiencing difficulties with “certain technical words”, which were about criminal charges and court proceedings. In respect of the frequency of mistranslation, on a fair reading of the material now available to the Court, the occurrence was small. The applicant advances his argument on one single incident while the independent view of Ms Mi in the Mi Affidavit was that she identified a total of eight errors, and some of these were due to the use of different expressions between Mandarin and English, particularly legal terminology.
The approach adopted by the applicant focuses directly on the direct characterisation as to the form and nature of the specific charges, whereas the Tribunal in its Decision Record is concerned with the conflicting evidence as to when the applicant became of adverse interest to the authorities. The applicant claims that his adverse status occurred on or about 9 March 2010, while separately claiming that some of his assets where frozen by the authorities in 2009. This later claim conflicts with independent country information suggesting that people who have become of adverse interest to the authorities commonly become subject to passport application refusals and denial of travel clearance from China. In the Decision Record under the heading “Additional Country Information” the Tribunal addressed the subject of passport issuance under the passport law of the People’s Republic of China effective as of 1 January 2007, together with the independent country information considered by the Tribunal. The Tribunal addresses this issue in its Decision Record at [69]:
69. The Tribunal finds that the applicant did not leave China at any time to come to Australia, including in March 2010, because he was afraid of harm, amounting to serious harm, there, because he spoke out/ participated in activities against the Chinese government/ authorities. The Tribunal does not accept as true that the Chinese government/authorities were interested in the applicant, monitored the applicant’s home or took steps to economically injure the applicant and his companies at any time before he left China in March 2010 for the reasons that the applicant claims, namely because he expressed his political views which were critical of the Chinese government/ authorities. The Tribunal does not accept as true that the applicant spoke out against the Chinese government in China including publicly, via the media/journalists or, to the extent that he claims it in China, via the internet, e mail or blog sites, before he left there in March 2010. The Tribunal does not accept as true that the applicant’s personal and company assets were frozen and/or taken over by the government, or that false charges were made against him, because he expressed his political views which were against the Chinese government/authorities, including about fairness and social issues in China.
(CB 213)
The applicant’s challenge is that the nature of the charges against him was misunderstood by the Tribunal Member, but this ignores the passage from the Transcript of the hearing on 9 December 2010 (reproduced above at [93]) where the Tribunal asked the applicant initially for access to the claimed charges and, when advised that they were no longer in his possession, to describe the details of their contents and how these were obtained. The responses to the sequence of questions appear to have supported the Tribunal Member’s view that the applicant’s evidence was confused and conflicting.
At the end of the Tribunal hearing, both the applicant and his representative would have been aware that aspects of the nature of the purported charges brought against the applicant were of interest to the Tribunal and the applicant had been unable to provide satisfactory answers during the hearing. Despite this, the only material that the applicant sought to obtain and place before the Tribunal was material concerning the Chinese Jasmine Movement. In the Decision Record at [59], the Tribunal records the receipt of a further submission from the applicant’s adviser, stating that the applicant provided a scanned image of a Court document from the Tuanfeng County Public Law Court which is the “Notice of Assistance to Freeze the Deposit”. Importantly, this is not related to the two charges referred to above, which are the subject of the Tribunal’s adverse finding being challenged by the applicant.
The applicant’s challenge to the Tribunal’s Decision Record is the finding that the evidence he gave in respect of two purported charges being brought against him was “conflicting and confused”. The challenge brought by the applicant focused directly upon an alleged misinterpretation in the description of those charges. That claim is not supported by the contents of the Tribunal decision itself and a fair reading of that document explains why the Tribunal’s conclusion about the charges was formed. This conclusion is further supported in the Mi Affidavit, particularly at [6]-[8] therein and is set out at [64] above. In the exercise carried out by Ms Mi she has independently identified the errors in interpretation, but notes they are essentially a difference in terminology between the legal systems in China and Australia, respectively. Those differences do not result in a significantly different legal position or outcome to the extent that the Tribunal would not be left with an understanding that the applicant’s purported situation was substantially different from the situation as it was claimed to be in China. I believe a fair reading of the Decision Record paints a completely different picture than the one that is being argued by the applicant. I note that the first hearing before the Tribunal was terminated because of difficulties being experienced by the translator at that hearing, particularly in respect of a number of legal terms. This circumstance may have led to the applicant forming the view that the translation of this specific piece of information was vital to the Tribunal’s reasoning process, but this is not supported by the information before this Court. From the material set out above, I have formed the view that the applicant has not suffered any denial of procedural fairness as a consequence of any failure or inaccuracy of interpretation during the Tribunal hearing.
I am satisfied that the grounds of review in the Amended Application cannot be sustained. Further, a fair reading of the Decision Record reveals no other jurisdictional error on the part of the Tribunal. Consequently, the Amended Application should be dismissed with costs awarded to the Minister.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 11 March 2014
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