SZQRC v Minister for Immigration

[2012] FMCA 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRC v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 315

MIGRATION – Review of decision of Refugee Review Tribunal – impermissible merits review – allegation of bias – failure to take into account relevant consideration – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 422B, 425, 425A, 426, 426A, 441A, 441C, 476

Migration Regulations 1994 (Cth), r.4.35D

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25
SZMFK v Minister for Immigration & Anor [2008] FMCA 1470
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485
Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230

Applicant: SZQRC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2129 of 2011

Judgment of: Nicholls FM

Hearing date: 13 April 2012

Date of Last Submission: 13 April 2012

Delivered at: Sydney

Delivered on: 20 April 2012

REPRESENTATION

The Applicant: In Person.

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 21 September 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2129 of 2011

SZQRC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application, made on 21 September 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 18 August 2011, to affirm the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”) (Court Book – “CB” – CB 11). She arrived in Australia on 6 June 2009 on a student guardian visa (CB 13). She was accompanied by her son.

2. The applicant’s student guardian visa was to cease on 31 December 2010. Prior to this, on 24 December 2010, she lodged an application for a protection visa (CB 1 to CB 27, with annexures). The applicant was assisted in her application by a migration agent (CB 8, CB 24 to CB 25). The same migration agent, Mr Songtao Lu, was authorised to receive correspondence on the applicant’s behalf (CB 28 to CB 30).

The Delegate

1. By letter dated 7 January 2011 the applicant was invited to attend an interview with the Minister’s delegate on 2 February 2011, which she attended (CB 32 to CB 33 and CB 81).

2. Further, by letter dated 11 January 2011 the applicant was requested to provide further information and additional documents in support of her application by 25 January 2011. Namely a full statement of her claims in support of a protection visa, her education qualifications, and identification documents (CB 34 to CB 39). These documents were provided by the applicant’s representative on 20 January 2011 (CB 40 to CB 70).

3. The applicant’s claims, as set out in her statement provided to the delegate (CB 49 to CB 55), were that:

   a.She was a traditional Chinese medicine practitioner, having graduated from University, and commenced an internship at a hospital, in July 1989. In 1990 she was formally admitted as a doctor and continued to work at the same hospital in the traditional medicine wing. She remained working at that hospital for fifteen years.

   b.In December 2001 the applicant believed that an “illegal” operation had been performed at the hospital. At the time she was not aware of the type of operation performed, nor on whom. By way of letter, the applicant brought her concern to the attention of the head of the hospital and was subsequently transferred to the “service department” of the hospital, where she remained for two years.

   c.In 2003 the applicant lodged a complaint with a superior hospital administrator. The applicant was then “expelled”.

   d.In August 2004 she complained at a government office, and threatened to post her complaint online if it was not adequately addressed by the authorities. The next day the applicant was detained by police and imprisoned and beaten. It was at this stage, following her discussions with her cellmate, a Falun Gong practitioner, that the applicant said she became aware of what she had observed at the hospital. Namely, the illegal transplant of an organ from a Falun Gong practitioner.

   e.The applicant was released three months later and required to report regularly to the police. She was unable to open a new clinic and her son was subject to discrimination by his school teachers.

   f.In November 2008, having procured a passport through the payment of bribes, the applicant resolved to leave China with her son. She obtained the relevant visa documents with the assistance of an agent.

   g.In June 2009 the applicant arrived in Australia.

4. By decision dated 24 March 2011, the delegate refused the grant of a protection visa to the applicant (CB 72 to CB 92). The delegate found the applicant not to be a witness of truth (CB 88). She found the applicant had not provided a plausible or credible account of circumstances in China, that her claims were vague and inconsistent, lacked plausible and credible detail, and that her evidence was contradictory. The delegate also found that the 18 months delay in the applicant making the application for a protection visa after her arrival in Australia was inconsistent with a genuine and significant fear for her life and safety (CB 91).

5. The delegate held that she was not a traditional Chinese medical practitioner and had not witnessed an illegal organ transplant operation performed on a Falun Gong practitioner. On the basis of these findings, the delegate rejected the applicant’s other claims and found that she did not have a well-founded fear of harm upon return to China (CB 91).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 29 April 2011 (CB 93 to CB 96). She was assisted in her review application by the same migration agent (CB 96).

2. The applicant was invited, by letter dated 6 June 2011, to attend a hearing before the Tribunal on 19 July 2011 (CB 99 to CB 101). The applicant attended on that day and was assisted by an interpreter in the Mandarin language ([25] at CB 111).

3. On 18 August 2011 the Tribunal decided to affirm the decision of the Minister’s delegate (CB 104 to CB 129). The Tribunal set out its findings and reasons in its decision record ([89] at CB 122 to [129] at CB 128).

4. The Tribunal found the applicant’s evidence to be “unreliable” and “…vague and lacking in detail” ([93] at CB 123). On this basis, the Tribunal held that the applicant was not a credible witness in relation to her claims to protection ([93] at CB 123). Specifically, the Tribunal rejected the applicant’s claim that she was a traditional Chinese medicine practitioner and that she had worked for fifteen years at the hospital ([96] at CB 123 to [102] at CB 124).

5. The Tribunal then turned its mind to the document provided by the applicant in support of her education qualification and, in the context of its adverse credibility finding, gave the document little weight ([103] at CB 124 to CB 125).

6. The Tribunal went on to consider each individual aspect of the applicant’s claims and rejected each ([104] at CB 125 to [125] at CB 128). The ultimate finding in relation to each item was that the applicant was not a truthful or credible witness and, on that basis, the Tribunal rejected the applicant’s factual account of claimed events in China.

7. Finally, the Tribunal found that the length of the delay between the applicant arriving in Australia and making a protection visa application was not consistent with a genuine fear of persecution ([126] – [128] at CB 128).

Application to the Court

1. The application to the Court contains three unparticularised grounds:

   “1. The Second Respondent has ignored relevant considerations in making the decision.

   2. The Second Respondent acted in breach of the rules of procedural fairness.

   3. The Second Respondent had bias against me and failed to consider my claims.”

Before the Court

1. At the hearing the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms M Stone appeared for the first respondent.

2. The Court had before it the Court Book and the Minister’s written submissions. On 7 November 2011 the applicant filed an affidavit (made on 3 November 2011) in the proceedings. The affidavit attaches a “Chinese” transcript of the Tribunal hearing and an “English version”. Also attached is what is said to be: “The Claim Statement of my reasons for the application to Federal Magistrates Court …”. The latter includes a “Wikipedia” article said to be relevant to the applicant’s statement. The applicant confirmed that she wanted these to be taken into evidence before the Court.

3. I treated the statement (and the attached article) as written submissions by the applicant as to her complaints about the hearing before the Tribunal. References to various internet sites do no more than invite the Court to substitute its own findings of fact for those of the Tribunal. As such this invites impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 (“Wu Shan Liang”)). These references therefore are not before the Court in any evidentiary context as they do not go to the central, or any, issue in these proceedings. Namely whether the Tribunal’s decision was affected by jurisdictional error. I treated the references as seeking to explain the applicant’s submissions.

4. There is no evidence that either the “Chinese” or English language versions of the transcript were prepared by a qualified independent expert interpreter, translator or transcriber. Plainly there are great difficulties in admitting the applicant’s version of what was said at the Tribunal hearing into evidence before the Court in the circumstances. There is no evidence as to the provenance and accuracy of the “Chinese” or English version. There is no evidence linking the two versions.

5. As such, the “Chinese” version is of no assistance in this matter (particularly as the Court does not read Mandarin characters). It was not admitted into evidence.

6. In the circumstances, the English version falls short of what could assist the Court in relation to what was said at the hearing (SZMFK v Minister for Immigration & Anor [2008] FMCA 1470 (“SZMFK”) at [43]). Nonetheless I admitted it into evidence to enable the applicant to argue her case (the applicant’s transcript – “P”).

7. In any event, I also admitted into evidence the affidavit of Michelle Elizabeth Stone, solicitor, made on 1 December 2011, which annexes a transcript of the Tribunal hearing prepared by a transcription service (“Auscript”) (the respondent’s transcript – “T”).

8. The applicant stated before the Court that she had not received the Court Book filed by the Minister in these proceedings. She confirmed that she had given the “correct” address for service: a post office box address in Haymarket, NSW. The applicant then said, when pressed, that the post office box was registered in the name of a friend, “Amy”.

9. The applicant then gave evidence that the post office box “belonged” to “Amy’s husband”. This was a Mr Lu. She confirmed that this was the Mr Lu who had assisted as a migration agent in her application for a protection visa and before the Tribunal. She insisted that if the Court Book had been sent and received at the post office box, Mr Lu would have given it to her.

10. I also took into evidence:

    a.A letter from the Minister’s solicitors to the applicant directed to the post office box address enclosing, by way of service, the relevant Court Book (Respondent Exhibit 1 – “RE1”).

    b.A letter from the Minister’s solicitor to the lawyer on the panel of the Court’s “RRT Legal Advice Scheme” who had been appointed under that Scheme to provide legal advice to the applicant, enclosing a copy of the Court Book (Respondent Exhibit 2 – “RE2”). I note that a certificate on the Court file from that lawyer stated that he met with the applicant and subsequently provided written advice to her.

11. Notwithstanding RE1 and RE2, the applicant was offered the opportunity to elect either to seek an adjournment of the hearing or to proceed. She emphatically chose to proceed with the hearing.

The Applicant’s Oral Submissions

1. The applicant’s oral submissions to the Court fell, initially, into two categories. The first was to take issue with factual findings made by the Tribunal, including the findings as to the truth of her factual claims. For example the applicant asserted that it was “wrong” of the Tribunal to reject her claim to have been a practitioner of Chinese medicine.

2. Even at their highest, these complaints do not rise about a request for this Court to engage in impermissible merits review (Wu Shan Liang). To the extent that the applicant sought to complain about the Tribunal’s findings of fact, and in particular its finding as to the credibility of her factual account, then, without anything further, such complaints do not assist the applicant in revealing jurisdictional error. Such findings were reasonably open to the Tribunal on what was before it, and were findings within the proper exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405).

3. It must be said that the applicant had some difficulty in grasping (notwithstanding the opportunity to obtain relevant advice from the “panel lawyer”, and the Court’s attempts at explanation) that the Court’s role in these proceedings was essentially focused on whether the Tribunal had made a “legal mistake”, not whether it made the “right” decision.

4. The second group of complaints were a number of assertions about the conduct of the Tribunal member both at the hearing and in the subsequent analysis of the applicant’s claims.

5. As to the latter the applicant’s complaint was that the Tribunal member had no knowledge of Chinese medicine and was therefore not in a position to judge the state of the applicant’s knowledge and make findings that the applicant’s knowledge was “superficial”.

6. While this matter is dealt with more fully below, it is important to note that by making such a complaint the applicant misunderstands the nature of the task with which the Tribunal is jurisdictionally charged by the Act.

7. The Tribunal was obliged to consider all the claims and aspects of these claims expressly made by the applicant, and that clearly arose from the circumstances (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1). There is nothing on the material before the Court to say the Tribunal failed in this regard.

8. The task of the Tribunal was then to make findings of fact in relation to these claims, bounded by the requirement to make findings reasonably open on what was before it. Again no legal error is evident in this regard on what is before the Court.

9. The accumulation of these findings forms the basis for the Tribunal to reach, or not reach, a requisite level of satisfaction. The effect of s.65 and s.36(2) of the Act is that when such a requisite level is reached, that is that the applicant meets the definition of “refugee” as set out in Art.1A(2) of the UN Refugees Convention, the protection visa must be granted (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 (“SJSB”), NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (“NAST”) at [4] – [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VASF”). If not, refusal is mandated (s.65 of the Act).

10. In the current circumstances the Tribunal was unable to reach the requisite level of satisfaction for the cogent reasons which it gave, probative of the material before it. No legal error is revealed in this regard.

11. There is no evidence before the Court as to the state of the Tribunal member’s knowledge of traditional Chinse medicine prior to commencing the conduct of the review. But, in spite of the applicant’s misunderstanding, this is not relevant to the current proceedings. The Tribunal is jurisdictionally charged to assess what is before it and to reach, or not reach, the requisite level of satisfaction (SJSB, NAST and VASF).

12. In the current case the Tribunal essentially, and relevantly, had two bodies of evidence before it in relation the applicant’s claims to be an experienced practitioner of Chinese medicine.

13. The first was information from a variety of sources about traditional Chinse medicine, and various items about organ transplants. While the applicant may argue as to the accuracy of some of this information (see further below), the choice of, and weight to be assigned to, such information is for the Tribunal (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 (“Abebe”)).

14. Second, the Tribunal had the applicant’s own evidence. The applicant appears not to have appreciated that it was her knowledge that needed to be evaluated, not that of the Tribunal. Although this matter is the subject of further consideration below, it is clear that it was reasonably open to the Tribunal to find that the applicant’s answers to relevant questions were vague and lacking in knowledge such that she did not demonstrate a level of knowledge commensurate with an experienced Chinese medical practitioner.

15. Both transcripts of the hearing reveal that the opportunity was given to the applicant to display such knowledge. Further, the Tribunal did not just rely on this to reject the applicant’s claims. The applicant’s evidence as to other claimed factual events (for example, the transplant operation and how she learned of its “true” character) were similarly found to be lacking.

16. It is not for the Tribunal to disprove, or to find evidence against, the applicant’s claims (SJSB and Abebe at [187]). It is for the applicant to satisfy the Tribunal as to the veracity of these claims. Her need to do so would have been quite evident from the delegate’s decision which in substance was mirrored by the Tribunal’s subsequent concerns and findings.

1. As to the conduct of the Tribunal member at the hearing, the greater part of the applicant’s complaints reflected her written submissions before the Court.

2. One additional area can be quickly dispatched. The applicant complained that the Tribunal member had a “bad attitude” towards her. That, for example, the member became irritated with her when she tried to clarify her answers.

3. There is no evidence before the Court to support these complaints. What evidence exists reveals that the Tribunal gave the applicant every opportunity to advance her claims. Even when regard is had to the applicant’s transcript of the hearing, there are clear instances of the Tribunal “encouraging” the applicant to expand on her account of relevant events (P39 to P41 have constant references to: “Then what happened?”, and on one occasion: “please continue”).

4. It is interesting to note that the applicant’s transcript of the hearing ends, in context, abruptly at the point when the Tribunal’s questioning involved the bribe the applicant claimed was paid to avoid her son being expelled from school in China (P44).

5. The transcript prepared by the transcription service reveals that the hearing continued for some time after this and dealt with the applicant’s claim to have paid a bribe to be able to leave China. Importantly, far from showing irritation on the part of the Tribunal, it reveals a solicitous question from the Tribunal (line 12-15 at T30):

   “[TRIBUNAL MEMBER]: Now, [Applicant], we are coming to the end of the hearing. Do you want to have a glass of water, before we conclude?

   THE INTERPRETER: No, it’s okay. Thank you.”

6. I cannot see that jurisdictional error in the Tribunal’s decision arises from the applicant’s oral submissions.

The Grounds of the Application and the Written Complaints

1. The grounds of the application are unparticularised assertions and complaints. In that state it is difficult to see how jurisdictional error can be made out. Nonetheless I did consider whether the applicant’s written (and to some extent oral) “submissions” could assist in this regard. The complaints in the applicant’s written submissions are with regard to:

   a.The attitude of the Tribunal member and “moxibustion”.

   b.The “five elements”.

   c.The applicant’s qualifications.

   d.The interpretation at the Tribunal hearing and “herbal medicine”.

2. I should just note that what is immediately apparent in the written submissions is that the applicant is mistaken in her references to the name of the Tribunal member who conducted the hearing and made the decision on her application. However, I am satisfied that the applicant is seeking to refer to the relevant Tribunal hearing and decision record.

Complaint One: The Attitude of the Tribunal Member and “Moxibustion”

1. There are two components to the applicant’s first complaint.

2. The first can best be understood as a complaint about the Tribunal member’s conduct at the hearing, and a complaint about the conduct of parts of the hearing. The applicant complains that the Tribunal member looked “… very tired and I heard she cough a lot.” I did not understand, in the context of the applicant’s complaint, that this was put as a complaint that the applicant was distracted by this, or that she was otherwise denied a fair hearing.

3. Rather, the applicant’s complaint appears to be that when the applicant asked the Tribunal member to explain a particular question, the member was dismissive (“… she answered my question unceremoniously …”). The applicant’s submission was that the Tribunal member looked uncomfortable (because she looked tired and coughed “a lot”) but that this did not excuse the way she dealt with the applicant’s question.

4. Before moving to deal with the applicant’s complaint as put, I should note that there is no evidence before the Court, nor does the material otherwise before the Court support the applicant’s assertion, as to the Tribunal member’s appearance or health. In any event there is nothing to support any proposition that the applicant was denied a fair hearing because of any indisposition of the Tribunal member.

5. The second component to complaint one derives from the Tribunal’s question as to: “… what moxibustion is?”. In the applicant’s version of the transcript the following relevantly appears (at P12):

   “RRT Member: Can you explain what moxibustion is?

   [Applicant]: What’s this?

   RRT Member: If you don’t know just say.

   [Applicant]: Since I do not understand English, I do not understand this word, because when we were studying traditional Chinese medicine, we were not studying English.”

   [Moxibustion: see [85] at CB 120:

   “Traditional Chinese medicine basics:

   
   alia, gives the following information:

   ‘Moxibustion (Chinese: pinyin: ji) is a traditional Chinese medicine therapy using moxa or mugwort herb. It plays an important role in the traditional medical system of China, …’

   … ”]

6. The version attached to Ms Stone’s affidavit is not in substance different (at T10):

   “[TRIBUNAL MEMBER]: Can you explain what moxibustion is?

   
   

   M-o-x-i---

   INTERPRETER: M-o-x-i - - -

   [TRIBUNAL MEMBER]: - - -b-u-s-t - - -

   INTERPRETER: - - -b-u-s-t - - -

   [TRIBUNAL MEMBER]: - - - i-o-n.

   INTERPRETER: What’s this?

   [TRIBUNAL MEMBER]: If you don’t know, just say.

   INTERPRETER: Since I do not understand English, I don’t know – I do not understand the word, because when we were studying traditional Chinese medicine, we were not studying English.”

7. The applicant’s complaint, at best therefore, can be understood as being that the Tribunal should not have responded to her question of “what’s this?” with: “If you don’t know, just say …”. The assertion now is that the Tribunal should have ascertained if she understood the question.

8. Whatever the applicant feels the Tribunal should have immediately said, what remains is that when regard is had to the decision record, the Tribunal plainly accepted that the applicant’s difficulty with the question was that she did not know the word (“moxibustion”) in English.

9. As the Minister submits, the issue of moxibustion was not relied upon by the Tribunal in its analysis of the applicant’s claims. Nor, importantly, in its adverse finding that the applicant was not a practitioner of traditional Chinese medicine, which was based on the paucity of her evidence in this regard.

10. I cannot see that this complaint assists in furthering the applicant’s grounds.

11. First, plainly, this item does not involve any failure by the Tribunal to take into account a relevant consideration as asserted in ground one.

12. Second, to the extent that it may be that the applicant seeks to put this forward as an example of some failure, or breach, of the rules of natural justice, given the effect of s.422B of the Act (the conduct of the hearing pursuant to s.425 is a matter dealt with in Div.4 of Pt.7, see Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204), then regard must be had to whether there was a failure to provide a meaningful opportunity for a hearing pursuant to s.425 of the Act.

13. Plainly the applicant was invited to a hearing pursuant to s.425 of the Act. The invitation complied with all the regulatory and statutory requirements (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C and r.4.35D of the Migration Regulations1994 (Cth)). The issue dispositive of the review was the comprehensive rejection of the credibility and truthfulness of the applicant’s account of relevant events in China. This issue clearly arose as a live issue following the delegate’s decision (CB 91).

14. Given this circumstance, the procedural fairness obligation arising from s.425 of the Act was satisfied. That is, the applicant was already on notice of the issue that disposed of the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”)). In any event any plain reading of either version of the transcript of the hearing, and the Tribunal’s own account, makes it clear that the Tribunal raised its concerns in this regard with the applicant at the hearing.

15. Ground three of the application to the Court asserts bias on the part of the Tribunal. The relevant test for bias, and the apprehension of bias, is well settled (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and per Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

16. It cannot be said on a plain reading of either transcript of the hearing that the Tribunal failed to bring, or would be perceived by a

    
    

    well-informed lay observer to have failed to bring, an impartial mind to these proceedings.

17. The example of “moxibustion”, far from supporting any such claim, reveals that the Tribunal turned to other matters as soon as it realised that there were difficulties with the translation from English into Mandarin. This, if anything, would reveal that the Tribunal was seeking to be fair to the applicant. That the matter of moxibustion did not feature in it analysis serves to emphasise this.

18. Separately, I cannot help but observe that in her submissions (at [1]) the applicant relevantly states:

    “Later when I listened to the CD of my interview, I looked up for that word in the dictionary and that was when I finally understood what she asked.”

19. The applicant made no claim that she could read, write or speak English (CB 11). Mandarin was given as the only language in which she had these capabilities. It is difficult to see how she can then claim to have “looked up” an English word in “the dictionary” for its meaning.

20. In all, the first complaint does not assist in revealing jurisdictional error either as asserted in the grounds of the application, or otherwise.

Complaint Two: The “Five Elements”

1. The applicant’s second complaint or “particular” derives from the following in “her” transcript of the hearing (at P15):

   “[Applicant]: In traditional Chinese medicine, we do not single out this Zhongqi. But we were told that if there was a problem with Zhongqi, that means the person has problems with stomach and spleen. While we are treating this the stomach and spleen individually, and then we’ll do general treatment.

   RRT Member: What are the five elements?

   [Applicant]: Are you referring to herbal medicine?

   RRT Member: Refer to the theory of traditional Chinese medicine.

   [Applicant]: I don’t understand what you mean by five elements.

   RRT Member: I am just reading the Material that related to traditional Chinese medicine. It talks about the basic theories of traditional Chinese medicine, and the groups together, and the number of theories. One of which is called five elements. It refers also to think alike method to diagnosis and refer to the theory of Yingyang, but what I am asking you is if you know about the theory of five elements?

   [Applicant]: The traditional Chinese medicine, we focus on Yin and Yang, and also five. I’m not sure you are referring to that as five elements? That gold, wood, water, fire, and soil?”

2. The following is relevant from the version of the transcript attached to Ms Stone’s affidavit (at T13):

   “THE INTERPRETER: In traditional Chinese medicine, we do not single out this zong qi, but we – but we were told that – we were taught that if there was a problem with zong qi, that means the person has some problems with stomach an spleen individually, and then, we will do a general treatment.

   [TRIBUNAL MEMBER]: What are the five elements?

   THE INTERPRETER: Are you referring to herbal medicine?

   [TRIBUNAL MEMBER]: No, I’m referring to a basic theory of traditional Chinese medicine.

   THE INTERPRETER: I … do no understand this five – what do you mean by five elements?

   [TRIBUNAL MEMBER]: I’m just reading material that relates to traditional Chinese medicine. It talks about the basic theories of traditional Chinese medicine, and they’ve grouped together a number of theories, one of which is called the five elements. Now, it refers also to things like methods of diagnoses, and it refers to the theory of yin yang, but what I’m asking is if you know about the theory of the five elements?

   THE INTERPRETER: In traditional Chinese medicine, yes, we focus on yin and yang and those are five – I’m not sure whether you are referring to that as five elements. That’s gold, wood, fire, water and soil.”

3. The applicant’s complaint is that the Tribunal questioned her about “the five elements” relevant to traditional Chinese medicine, and in doing so relied on incorrect information, or relied on one view of many of the constituent parts of the elements of traditional Chinese medicine. The complaint may also be seen as some assertion that the Tribunal made an incorrect finding of fact, or a factual error. The applicant now submits that the extract from the internet site attached to her submissions shows that the Tribunal was incorrect in its understanding of the “five elements”.

4. I initially had some difficulty with the Minister’s submission that the error (if it occurred as asserted by the applicant) was not relied upon by the Tribunal in finding that the applicant lacked credibility. On its face the applicant’s failure to list the five elements was a part, albeit one of many parts, of the Tribunal’s finding that the applicant lacked sufficient knowledge of what would be expected of someone who claimed to have qualifications in, and years of experience of, the practice of traditional Chinese medicine. At the hearing the Tribunal referred to the “five elements” as being part of the “basic theories of traditional Chinese medicine”. Its reference to “… questions of fundamental aspects of Chinse medicine …” in its analysis plainly included this ([96] at CB 123). This informed its subsequent conclusion that she had not been a practitioner of Chinese medicine in China (see [97] at CB 123).

5. Ms Stone also submitted that a plain reading of the Tribunal’s decision record reveals that while the theory of the five elements was a part of the Tribunal’s relevant analysis it was not adverse to the applicant.

6. The Tribunal records this exchange in its account of the hearing at [49] (at CB 114):

   “The Tribunal asked the applicant if she could explain the theory of the five elements. The applicant asked what the Tribunal was referring to. The Tribunal explained that in traditional medicine there were a number of theories, for example, Yin and Yang, and methods of diagnostics, and asked the applicant if she could explain the theory of the five elements. In response the applicant said in traditional Chinese medicine they focus on Yin Yang; gold, wood, fire, water and soil.”

   [The transcripts of the hearing do not challenge this account.]

7. In its analysis the Tribunal acknowledged that: “… some responses of the applicant contained satisfactory information …” ([102] at CB 124). Ms Stone submitted that since what the Tribunal set out at [49] (at CB 114) as the applicant’s answer is consistent with the information in the Wikipedia extract which the applicant annexed to her submissions to the Court (the applicant’s statement), then this must have been one of the instances of the “satisfactory” responses referred to by the Tribunal.

8. While I have some difficulty in accepting an understanding of the Tribunal’s analysis based on material created, or extracted, after the Tribunal’s decision, and therefore not before the Tribunal, I do agree with the Minister that this was one of the many elements in the Tribunal’s various findings as to the applicant’s relevant knowledge. I also agree that the various findings were made independent of each other, including the finding based on this particular element. The explanation here is to be found in the Tribunal’s actual findings. While it comprehensively rejected the applicant’s factual account of events in China, as to the applicant’s knowledge of Chinse medicine, the finding was that it was “limited” and not commensurate with her claimed years of experience.

9. A second answer to the applicant’s complaint is to be found in what the Minister otherwise submits. That is, even if there was some factual error in the Tribunal’s findings this would not of itself, and on its own, be sufficient to constitute jurisdictional error (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ, Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [37] per Finn, Marshall and Mansfield JJ and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ). In the current circumstances the applicant has not demonstrated that the Tribunal made any such error.

10. Even if there are in existence internet sites that may argue a factual basis, relevant to Chinese medicine and the five elements, that support the applicant’s answer to the Tribunal’s question, the Court cannot look to the applicant’s material, not before the Tribunal, to substitute its own findings for those of the Tribunal.

Complaint Three: The Applicant’s Qualifications

1. The applicant’s third complaint is that she brought certain documents relevant to her qualifications (said to be a “graduate certificate” and an “internship qualification”) to the Tribunal hearing, but that the Tribunal did not “request to inspect these documents”. The complaint is that the Tribunal did not give consideration to these documents. It may be that this is an attempt to particularise ground one: a failure to take into account a relevant consideration.

2. The applicant says that she relies on the following in her transcript of the hearing (at P5):

   “RRT Member: What was the University?

   [Applicant]: Guangming Traditional Chinese Medicine Correspondence University. I have a graduate certificate.”

3. The corresponding part in the transcript annexed to Ms Stone’s affidavit is (at T6):

   “[TRIBUNAL MEMBER]: And where – what was the University?

   THE INTERPRETER: Guangming Traditional Chinese Medicine Correspondence University. I have a graduate certificate.”

4. In relation to the graduate certificate it is, at best for the applicant, debatable whether she sought to give the graduate certificate to the Tribunal. The reference to: “I have a graduate certificate” is ambiguous as to whether she meant she had been awarded the qualification or whether she had the certificate evidencing it with her.

5. The applicant’s complaint is that the Tribunal did not “request” to see the document. Given the ambiguity on its face it should be noted that it is not for the Tribunal to make out the applicant’s case for her.

6. However, any ambiguity is resolved when regard is had to the fact that a graduate certificate from Guangming Traditional Chinese Medicine Correspondence University had been submitted by the applicant to the Minister’s department, and was subsequently before the Tribunal (CB 43 to CB 44 and [19] at CB 109).

7. That this is the graduate certificate to which the applicant now refers can be safely inferred when regard is had to the context in which the extract of the hearing now relied upon by the applicant appears (see at P4 and P5 of the applicant’s transcript, and in particular the reference to her having graduated in June 1989, and the reference to “July 1989” on the certificate at CB 44).

8. The Tribunal did not ignore or fail to consider this document ([103] at CB 124):

   “The Tribunal has considered documentation submitted by the applicant, in the form of a document certifying that she completed a course of Chinese Traditional Medicine from May 1985 to June 1989 at the Guangming University of Traditional Chinese Medici. In assessing the value of the documentation the Tribunal has had regard to recent authority contained in MIAC v SZNPG [2010] FCAFC 51 and MIAC v SZNSP [2010] FCAFC 50. The Tribunal has considered the translated document as corroborative evidence. The Tribunal has found the applicant is not a credible witness in relation to her claim to be a Traditional Chinese doctor. The Tribunal finds that the significant concerns it has with the applicants credibility in this regard far outweighs any weight the documentation submitted might carry. As the applicant cannot be believed the Tribunal gives little weight to the corroborative documentation and does not accept the applicant is a graduate in traditional Chinese medicine from the Guangming University of Traditional Chinese Medicine. The Tribunal does not accept the applicant worked in the Department of Chinese Medicine as a doctor at Jilin Railway hospital for fifteen years. The Tribunal finds the applicant is not a truthful or credible witness in relation to this claim.”

1. The Tribunal plainly had regard to relevant authority as to its treatment of this document ([103] at CB 124, Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 and Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485).

2. As to the internship certificate, there is no mention of any such document at that part of the transcript relied on by the applicant now. Nor is there any mention by the applicant of any such document elsewhere in the transcript of the hearing or in the material before the Tribunal. The applicant may well have taken such a document (if it existed) to the hearing, but the Tribunal can hardly be said to have failed to request it if it did not know of its existence.

Complaint Four: The Interpretation at the Tribunal Hearing and “Herbal Medicine”

1. The fourth complaint contains three elements.

2. The first is an assertion of an incorrect interpretation by the interpreter when the applicant gave her answer to the Tribunal’s questioning as to the applicant’s knowledge of herbal medicines. The applicant now says she gave the answer which had the “same meaning” as that expected by the Tribunal but that the interpreter had incorrectly interpreted her answer (see [97] at CB 123).

3. The applicant relied on the following in her version of the transcript (at P13):

   “RRT Member: Can you tell me the classifications of herbal medicines?

   [Applicant]: The classification is some of the herbal medicine is to treat the symptoms, and then some to calm the symptoms down, to clam the person down and also the third one is to dubelate the flowing of the blood.”

4. The relevant law in relation to what the applicant would need to establish to demonstrate jurisdictional error arising from inadequate interpretation is that, as submitted by the Minister, to be found, for example, in Appellant P119 /2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17]:

   “The claimed obligation upon the Tribunal under s.425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented on by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at 6 [27] (Singh); Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (Perera). In its written submissions the respondent, 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.”

5. I cannot agree with the Minister’s written submission (at [27]) that, although the Tribunal concluded that the applicant lacked credibility on the basis of her poor knowledge of Chinse medicine, her poor knowledge of the classification of herbal medicines was not material to this finding.

6. In its analysis the Tribunal did make specific reference to the classification of herbal medicines ([97] at CB 123). Its findings as to the applicant’s state of knowledge of Chinese medicine cannot be said to have excluded this item. The Tribunal’s reference to: “… basic aspects of Chinese traditional medicine …” in its analysis ([102] at CB 124) included a reference to the applicant’s answers on the classification of herbal medicines ([46] at CB 114, and [101] at CB 124).

7. In any event I do agree with Ms Stone’s oral submission that the classification of Chinese herbal medicines was only one aspect of a large number of elements that informed the Tribunal’s finding in this regard. Each were considered independently. While the matter of herbal medicines was, in my view, material to the Tribunal’s conclusion as to the applicant’s lack of relevant basic knowledge, the Tribunal’s conclusion was amply supported by other independent bases. The applicant does not challenge any of these other factors leading to, and supporting, the Tribunal’s adverse conclusion.

8. Despite some vague suggestion of some unease, as expressed in submissions, by a “few conversations like the one above”, the applicant has not pointed to any other error said to have been made in interpretation.

9. In any event the applicant’s complaint also does not succeed because there is no probative or accessible evidence before the Court to support the applicant’s allegation of error in this regard.

10. The applicant asked the Court to look at her “Chinese” (Mandarin characters) version of the transcript. As set out above, the Court has no proficiency in Mandarin. Even if it did this would still not overcome the evidentiary burden on the applicant to present evidence in support of her claim which, in the circumstances of this case, would require such evidence from an appropriately qualified interpreter or translator (SZMFK at [43]).

11. The second element of the complaint is that the applicant felt the Tribunal member: “… didn’t have a good impression of me”. If what the applicant means is that the Tribunal expressed its concerns about the credibility of her evidence, and did so on a number of occasions, then the Tribunal was plainly fulfilling its procedural fairness obligation towards the applicant in putting her on notice of the issue that ultimately disposed of the review (SZBEL).

12. Bias, or the apprehension of bias, is not made out in circumstances where the Tribunal is simply fulfilling its legal obligation to put the applicant on notice of the case against her. There is nothing in the transcripts of the hearing, or elsewhere, to show, or even suggest, that the Tribunal did not bring an impartial mind to these proceedings, or was not open to persuasion.

13. The third element in this complaint is an attempt by the applicant to give evidence as to her years of the practice of Chinese medicine in China, and to seek to explain to the Court why her answers to relevant questions about her knowledge and experience may have been deficient.

14. This does no more than trespass across the line into inviting the Court to engage in impermissible merits review. The Court has no power to substitute its own findings in this regard for those of the Tribunal (Wu Shan Liang). This complaint also does not assist the applicant in revealing legal error in the Tribunal’s decision

Conclusion

1. For the applicant to succeed in her application, the Court would need to, at least, discern jurisdictional error on the part of the Tribunal. No such error is evident on the evidence before the Court. The application should be dismissed. I will make an order accordingly.

I certify that the preceding one-hundred and six (106) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  20 April 2012