FEDERAL COURT OF AUSTRALIA

SZGSZ v Minister for Immigration and Citizenship [2008] FCA 916

Migration Act 1958 (Cth)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2001) 168 ALR 407; [2000] HCA 1

SZGKX v Minister for Immigration and Citizenship [2007] FCA 461

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2001] FCAFC 134

SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390

Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586; [2007] FCAFC 170

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6

Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172

VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

SZGSZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2541 of 2007

REEVES J

20 JUNE 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against the judgment of Federal Magistrate Nicholls delivered on 7 December 2007 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

BACKGROUND - SUMMARY OF FACTS

2                     The appellant is a citizen of the People’s Republic of China (‘China’). He was born in China on 12 November 1966. He arrived in Australia on 28 March 1998.  Many years later, on 12 April 2005, he lodged an application for a protection visa (class XA) under the Migration Act 1958 (Cth) (‘the Act’). A delegate of the first respondent refused that application on 4 May 2005 and the appellant applied to the Tribunal for a review of that decision.

3                     The appellant attended a hearing before the Tribunal, as originally constituted ('the previous Tribunal'), on 2 June 2005 (‘the first hearing’). On 30 June 2005, the previous Tribunal affirmed the delegate's decision. The appellant then sought judicial review of that decision in the Federal Magistrates Court. By consent, that decision was quashed by a Federal Magistrate on 5 June 2006 and the appellant's application was remitted to the Tribunal to be reconsidered according to law.

4                     The appellant gave evidence before a differently constituted Tribunal ('the Tribunal') on 29 August 2006 (‘the second hearing’). Because there was insufficient time to complete it, the second hearing was adjourned until 20 September 2006. In its decision signed on 14 December 2006 and handed down on 9 January 2007, the Tribunal affirmed the delegate's decision (as the previous Tribunal had). It is that decision that was the subject of Federal Magistrate Nichols' decision.

5                     The appellant made his application for judicial review to the Federal Magistrates Court on 1 February 2007. He amended that application on 1 August 2007.

6                     In a written statement attached to his original visa application, the appellant claimed to be Catholic and claimed that he had had to leave China to avoid persecution ‘because of the one-child policy and because of my religion’. He said that he and his wife had three children and because of their third child his wife was sterilised and the family was fined 100,000 RMB. He said he had been unable to pay the fine so he lost his job. He then decided to flee to Australia. He claimed that if he were forced to return to China he would be detained and prosecuted because he has not paid the fine. He said they ‘may have some written record that I am Catholic’ and he feared he would be targeted by the Chinese authorities. He also claimed that he was no longer a legal citizen of China and the authorities would not protect him.

THE TRIBUNAL’S DECISION

7                     Because of the fact that there were two hearings (with the second being in two stages), before two differently constituted Tribunals and numerous issues were raised, including a recurrent claim that this appellant had interpretation problems, it is necessary to deal with the Tribunal’s decision in some detail.

8                     In its Statement of Decision and Reasons (‘the Decision’), the Tribunal summarised the appellant's claims and evidence contained in his primary application, the statement attached thereto and a further, more detailed statement provided on 22 April 2005. In those statements the appellant gave details about his activities as a Catholic in China and the effects of the one-child policy on his family. The appellant also provided a number of documents to the Tribunal including a certificate recording that his wife had undergone a tubal ligation in China on 18 September 2003.

9                     The Tribunal then set out a summary of the appellant’s evidence before the previous Tribunal. At the beginning of this section of the Decision, the Tribunal recorded that the appellant contended before it that there were interpretation problems at the first hearing and those proceedings should therefore be disregarded. The Tribunal rejected that contention. In doing so it stated:

‘…The current Tribunal engaged an accredited Cantonese interpreter to listen to and provide commentary on the use of language and interpretation at [the first] hearing, and accepts her conclusion that there were no significant language problems.  It put this information to the applicant in a s 424A letter dated 5 September 2006.

The Tribunal also provided the applicant with a copy of the audio recording of that hearing and sent, in a letter dated 31 August 2006, the text of the summary contained in N05/51227.  It invited the applicant (among other things) to identify and provide explanations of any matters recorded in the decision text that in his opinion did not reflect what was actually said at the hearing.  The response to that letter, dated 27 September 2006, included significant changes to the text, many without explanations.  There were suggestions for blanket deletions, based on the assertion not that the applicant did not make the statement as recorded, but rather that he would have said something different if he had access to an interpreter in ‘Huadu’.  In the light of the interpreter’s assessment of the hearing tape and in the absence of any specific examples of why the applicant now disowns entire paragraphs of his recorded evidence, the Tribunal is not satisfied that this response was made in good faith.  Instead, it considers that the applicant has seized the Tribunal’s offer as an opportunity to distance himself from his earlier evidence in the hope of rectifying perceived deficiencies in his refugee claims.

The Tribunal has listened to the audio recording and, in the light of the above, repeats below the summary text of that exchange as set out in RRT decision N05/51227.  It incorporates the corrections proposed by the applicant, where reasoned, but not the unsubstantiated shifts referred to above.’

10                  In the three page summary that follows, the Tribunal recorded the appellant’s evidence about his family’s difficulties with the authorities in China over the one-child policy, the fine imposed on his family for breaching that policy, the problems his family encountered in obtaining education for his children, his wife’s sterilisation and his activities as a Catholic in China. The Tribunal then summarised a post-hearing statement the appellant had submitted to the previous Tribunal on 24 June 2005. In addition to the matters dealt with in his evidence, this statement provided details about:

·                    The non-registration of his children;

·                    The payment of the fine including a certified copy of a hand-written note dated 28 February 1997 stating that the applicant had been fined following the birth of a third child and had all business licences suspended;

·                    His explanation for his delay in lodging his protection visa application;

·                    His contacts with other Catholics in China and his claims that his family would not allow those contacts; and

·                    Details about his religious contacts in Australia including two letters, one from a Sister Mary Britt and the other from a Reverend Conway Ku of the Central Baptist Church.

11                  The Tribunal then turned to deal with the evidence the appellant gave at the second hearing. The first two and a half pages of this section of the Decision dealt with the appellant’s complaints about interpretation problems.

12                  The Tribunal began by noting a request that the appellant made through his advisor that the hearing before the Tribunal be conducted with the assistance of an interpreter competent in the ‘Huadu’ dialect.  In support of this, the appellant indicated that he understood only fifty percent of Cantonese and that he needed an interpreter from his own district or the neighbouring area of Pingshan.

13                  In response, the Tribunal records that it played portions of the tapes of the hearing before the previous Tribunal and noted that the appellant had not alerted the previous Tribunal to any problems with interpretation nor demonstrated any uncertainty or delay in his evidence before the previous Tribunal.  The appellant’s response to this was that he had had difficulty understanding questions from the Tribunal and he stated on numerous occasions that he wished to have a ‘Huadu’ interpreter and not a Cantonese interpreter. 

14                  The Tribunal then set out a number of factors that it believed cast doubt on the appellant’s claim that he could not express himself through a Cantonese interpreter.  They included the fact that the appellant was able to give evidence at the previous Tribunal hearing without any apparent problem, that there was no record of the appellant having requested a ‘Huadu’ interpreter previously, that the appellant had requested a Cantonese interpreter for both the hearing before the previous Tribunal and the hearing before the Tribunal and that the appellant appeared to be fully functional in Cantonese because he had obtained his education and conducted a business in the City of Shenzhen where the language used was Cantonese.  In response to this latter aspect, the appellant claimed that his schooling was conducted in ‘Huadu’ and that he had conducted his business using that language.

15                  Following a brief adjournment, the Tribunal advised the appellant that it believed he was fluent in Cantonese and that it was not satisfied that his claim to have difficulties communicating in Cantonese was truthful.  The appellant was then offered the choice between proceeding to give evidence at the hearing using the Cantonese interpreter, or not giving oral evidence at all.  The appellant sought an adjournment to consider this position. When the hearing resumed he stated again that he wished to give evidence using a ‘Huadu’ interpreter.  Finally, the appellant stated that he felt he had no choice but to present his evidence in Cantonese and the hearing then proceeded with a Cantonese interpreter.

16                   However, because there was limited time available at that stage of the hearing, the second hearing was adjourned and resumed on 20 September 2006.  At the beginning of the resumed hearing, the issue of interpretation problems was again raised.  On that occasion the appellant had arranged to obtain an interpreter who, whilst being a Cantonese speaker, was from the Guangzhou area and whose dialect and accent were close to those of the appellant.  Nonetheless, the appellant said that this interpreter was ‘not the best’ and that he would prefer to give his evidence using a ‘Huadu’ interpreter.  The Tribunal repeated its view that the appellant was fluent in Cantonese.  Ultimately the appellant elected to proceed with the second stage of the hearing noting that the interpreter present had come from the Guangzhou area.

17                  It should be noted that between the first stage of the second hearing and the resumed second hearing, the current Tribunal wrote to the appellant pursuant to s 424A of the Act on two occasions: 30 August 2006 and 5 September 2006.  The August 2006 letter sought further information about a range of issues including the appellant’s return to China in March 1998, the reasons why the appellant remained in Australia beyond his original long-stay visitor visa which expired in January 1999, when it was that the appellant first became a Catholic, whether or not the appellant had paid the fine associated with the one-child policy in full and some comments made by the appellant’s previous advisor, Ms Di Giglio, about difficulties communicating with the appellant without a good Cantonese interpreter.  In this letter, the Tribunal also sought further information about the appellant’s biographical details and details of his family, including their place of residence, employment and schooling.  The Tribunal also invited the appellant to comment on a number of matters including his current religious practice in Australia and details of any witnesses he proposed to call. 

18                  The September 2006 letter dealt with the alleged interpretation problems the appellant claimed to have had at the first hearing.  It attached a copy of a report the Tribunal had obtained from a NAATI – level 3 accredited interpreter stating that she did not believe that the appellant had any problem understanding Cantonese at that hearing but also identifying some specific and more general communication issues not associated with any difficulty in communicating in Cantonese.  The appellant was invited to comment on that attached document. 

19                  On 27 September 2006, the appellant provided a lengthy response to these two letters.  In his response the appellant said, among other things, that he did not apply for a protection visa earlier because he was unaware of his right to seek one and he repeated his difficulties communicating through a Cantonese interpreter and sought details of the attempts the Tribunal had made to find an ‘Huadu’ interpreter.

20                  In the ‘Findings and Reasons’ section of the Decision under the heading ‘Interpretation and Presentation of Claims’, the Tribunal stated that for various reasons it had concluded that the appellant was able to give evidence to the Tribunal in Cantonese and that he did not require an interpreter in ‘Huadu’.  The Tribunal concluded that the appellant had feigned incomprehension of Cantonese during the first session of the hearing before it and that he did not appear motivated by a genuine desire to present his refugee claims.  It found that the appellant’s conduct in relation to his claimed problems with interpreters was not the conduct of a person who genuinely feared persecution.  It therefore concluded that the appellant’s conduct cast grave doubts on the veracity of his refugee claims and his credibility generally.  Notwithstanding those conclusions, the Tribunal proceeded to examine his refugee claims on the basis of the material before it.

21                  The Tribunal turned to consider the appellant’s refugee claims which it noted were that he feared persecution by reason of:

(a)                his violation of China’s one-child policy; and

(b)               his Catholic faith.

22                  After noting that the Tribunal was not required to accept uncritically any or all allegations made by the appellant, the Tribunal stated that it ‘…found the applicant to be an uncooperative and evasive witness.  His evidence was highly selective, exaggerated and lacking in credibility. For instance, the applicant’s account of his financial situation from 1995 to the present – a critical aspect of his refugee claims – was entirely problematic.  He gave no credible information about his income in China from 1995, insisting that his family led a nomadic existence for several years, surviving on the goodwill of friends.’  After noting further concerns the Tribunal had with the appellant’s evidence, it concluded that the appellant did not have a genuine fear of persecution in China at any time before his detention in 2005, and that his protection visa application was lodged solely as a means of prolonging his stay in Australia.

23                  Again, notwithstanding this conclusion, the Tribunal ‘for completeness’ turned to consider whether there was anything to suggest a real chance of prospective persecution if he were to return to China.

24                  In relation to the appellant’s claims to fear persecution because of his Catholic faith, the Tribunal reviewed his claims and evidence and found most to be either unpersuasive or unacceptable.  On this issue, it concluded that the appellant’s claims of past religious involvement in China were fabrications and it dismissed his claims to have had any association with Christians in China and therefore rejected his claims of past harm - which included the application of the one child policy - as not associated with his religious faith. 

25                  The Tribunal then turned to consider the appellant’s involvement with Christianity since his detention in 2005.  It accepted the appellant’s oral evidence and the statements of Sister Mary Britt and Reverend Conway Ku about the appellant’s involvement in church activities since 2005.  However the Tribunal found that the appellant’s involvement in those activities was a direct result of his detention in 2005 and was not reflective of any previous interest in Christianity.  Finally the Tribunal turned to consider whether there was a chance that the appellant had since developed a genuine commitment to Christianity such that it may affect his persecution for that reason in the future.  The Tribunal did not accept that the appellant was a genuine Catholic as claimed and it concluded that his claims in this regard were made to strengthen his refugee claims. 

26                  The Tribunal also considered that the effect of the one-child policy in China on the appellant and his family.  The Tribunal accepted that the appellant and his wife had three children but, based on country information, concluded that the one-child policy was not strictly enforced in the area of China from which the appellant and his family came.  After considering the appellant’s claims and evidence about the non-registration of his children, the Tribunal ultimately accepted the appellant’s evidence that the authorities had imposed a fine on the family and pressured his wife to undergo a tubal ligation.  However, the Tribunal did not accept the appellant’s claims that he had been fined 100,000 RMB concluding that ‘taking into account the applicant’s narrative, his supporting evidence, his subsequent conduct and country information about local fines and penalties – that the applicant and his family were levied and in 1997 paid a fine of 10,000 RMB.  It rejects as a fabrication the claim that the applicant was fined 100,000 RMB, and that he has a consequent large unpaid fine.’  Further, the Tribunal did not accept that there were or had been any adverse consequences after the birth of the appellant’s third child and it found the account of the appellant’s activities since 1995 entirely unsatisfactory. 

27                  Ultimately, having considered the evidence as a whole, the Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia owes protection obligations under the Convention.  It summarised it’s assessment of the appellant’s evidence in the following terms:

‘The Tribunal has examined the appellant’s claims individually and accumulatively.  It is not satisfied that he is Catholic, or (on the basis of the material to which it is permitted to have regard), will be so perceived.  It accepts that he is the father of a three-child family, and this resulted in fines and pressures on his wife to be sterilised.  These matters were resolved in 1997.  The Tribunal does not accept that the appellant or his family suffered any other harm before 1997; nor does it accept that there has been any subsequent harm.  The Tribunal finds that there is no real chance that the appellant will be sterilised, that he will be denied the resumption of his household registration or that he will face any disadvantage arising from other personal circumstances – such as his recently advised Vietnamese background or his submission of a protection visa application – if he returns to China.  It detects no genuine religious, political or other factors that would motivate him to engage in any future conduct at [sic] might come to the attention of the PRC authorities.  It follows that the Tribunal is not satisfied that he has a well founded fear of Convention-related persecution, now with [sic] reasonably foreseeable future.  He is not a refugee.’

THE FEDERAL MAGISTRATE’s DECISION

28                  The appellant's amended application for judicial review before the Federal Magistrates Court raised four grounds of review which can be summarised as follows:

(1) the quality of interpretation before the Tribunal effectively prevented the appellant from having a real opportunity to present his case in breach of s 425;

(2) the Tribunal misconstrued the Convention and s 91R(2) in failing to consider that the harm inflicted upon the appellant's wife could also constitute persecution of the appellant;

(3) the Tribunal failed to comply with s 424A in relation to seven pieces of information; and

(4) the Tribunal failed to consider and make findings on two of the appellant's claims and/or evidence before it that could have led to a decision favourable to the appellant.

29                  At the hearing before the Federal Magistrate the appellant's solicitor did not press ground (2) and noted that ground (1) was linked to ground (4). The Federal Magistrate therefore dealt with grounds (3) and (4), and dealt with ground (1) during the process of considering ground (4)

30                  The learned Federal Magistrate's decision contains a careful and comprehensive assessment of each of the appellant's many complaints about the Tribunal's decision, raised within the three remaining grounds before him.

31                  In relation to the third ground, his Honour noted that the appellant relied upon what the majority of the High Court said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 ('SAAP') and then considered the seven pieces of information identified by the appellant in turn. His Honour ultimately concluded that none of the appellant's complaints about a breach of s 424A of the Act had been made out. His Honour's conclusions in relation to each of the pieces of information can be summarised as follows:

(1)   the Chin information - his Honour noted that the Chin information related to the appellant's involvement with Christian churches in Australia since his detention in 2005 and that the Tribunal had accepted his evidence but attributed little weight to it. His Honour referred to the High Court's decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 ('SZBYR') at [15], [17] and [22] and noted that s 424A only required the Tribunal to provide particulars of information that would be the reason, or part of the reason, for affirming the decision under review. He noted that the reason why the delegate's decision was affirmed, and the appellant's application was rejected, was that he was not a person to whom Australia owed protection obligations under the Convention. In reaching that conclusion, he noted that the Tribunal had concluded that the appellant's involvement with Christian churches in Australia arose as a direct result of his detention in 2005, and not because of any previous interest in Christianity. Therefore it concluded his involvement should be disregarded under s 91R(3) of the Act. Finally, he noted that the Tribunal had reached its conclusions on this aspect because of its adverse assessment of the appellant's evidence which it found to be piecemeal and hesitant. Based upon this assessment, his Honour concluded that the Chin information was not the reason, nor part of the reason, for the Tribunal's ultimate decision and that it did not, within its terms, contain a rejection, denial or undermining of the appellant's claims such that it was not information that had to be provided to the appellant under s424A of the Act.

(2)   the photograph information – it was claimed that the ten photographs put forward showed the appellant's home in a state of disrepair after a raid by the Chinese authorities. His Honour concluded these photographs were not the reason, nor part of the reason, for affirming the decision under review and, in any event, were not adverse to the appellant's claims, and therefore not information that had to be provided within the terms of s 424A. In doing so, his Honour also rejected the appellant's submission that a distinction should be made between information provided directly by the appellant and information provided by his adviser on his behalf and held that the latter fell within the exception contained in s 424A(3) of the Act.

(3)   the religious information - this related to the statements provided by Sister Mary Britt and Rev Conway Ku. His Honour noted that the Tribunal had accepted these statements. However, his Honour held that they were plainly not the reason, or part of the reason, for affirming the decision under review and this was therefore not information that had to be provided within the terms of s 424A of the Act.

(4)   the household registration information - his Honour rejected the appellant's complaints in relation to this information. He did so firstly because it did not, within its terms, contain a rejection, denial or undermining of the appellant's claims and was therefore not information that had to be provided within the terms of s 424A; and secondly because this information was provided by the appellant, and fell within the exception contained in s 424A(3) of the Act.

(5)   the disappearance information - the appellant complained that this information had been provided by the appellant's former adviser to the first respondent's Department but not passed onto the Tribunal. His Honour rejected this complaint noting that the information had also been provided by the appellant's former adviser to the Tribunal and was in fact included in the appeal book. His Honour concluded that it therefore fell within the exception contained in s 424A(3) of the Act.

(6)   the travel document information - his Honour rejected the appellant's complaints in relation to this information for the same reasons as he rejected the similar complaints in relation to the household information (above at (4)).

(7)   the tourist visa information - his Honour also rejected this complaint noting that this information had been provided by the appellant's former adviser to the previous Tribunal and therefore fell within the exception contained in s 424A(3) of the Act.

32                  In relation to ground (4) his Honour noted that it complained about two aspects of the appellant's claims and evidence: the problems he claimed he had encountered with interpreters and the evidence he gave about his children's (or his second child's) registration. As with ground (3), his Honour ultimately concluded that none of the appellant's complaints in ground (4) about misunderstanding his claims or about a breach of 425 of the Act had been made out.

33                  Dealing with the first aspect of ground (4), in relation to the interpreters, his Honour noted that in submissions before him the appellant had limited his complaints to the hearing before the previous Tribunal i.e. on 2 June 2005, and made no complaints in relation to the hearing before the Tribunal. This complaint relied upon complaints the appellant's previous adviser made to the previous Tribunal about his difficulties with the Cantonese interpreters. The appellant claimed that the Tribunal had misunderstood those complaints and that this misunderstanding ultimately lead to the Tribunal rejecting many of his claims.

34                  In assessing this complaint, his Honour noted that between the first stage of the hearing before the Tribunal on 28 August 2006 and the second stage of that hearing on 20 September 2006, the Tribunal engaged a NAATI -level 3 interpreter to listen to and assess the tapes of the hearing before the previous Tribunal on 2 June 2005. It obtained a report from that interpreter which was to the effect that she considered there were no significant language problems at the 2 June 2005 hearing. That report was then submitted to the appellant for comment pursuant to s 424A by a letter from the Tribunal dated 5 September 2006. In response, through his adviser, the appellant provided detailed comments to the Tribunal together with a marked-up copy of a transcript of the hearing on 2 June 2005. The Tribunal then considered those comments and rejected them for the detailed reasons given in the ‘Findings and Reasons’ section of the Decision. His Honour therefore concluded that the Tribunal had not misunderstood the appellant’s complaints about the interpretation problems, but had squarely addressed them and rejected them for the reasons given. Moreover, his Honour said there was nothing before him to show that the Tribunal had misunderstood or failed to properly deal with any of the appellant's claims.

35                  In this context his Honour also considered ground (1) which alleged that the quality of interpretation before the Tribunal effectively prevented the appellant from a real opportunity to present his case, in breach of s 425 of the Act. His Honour had before him an affidavit by Ms Chen, the interpreter who assisted at the second stage of the hearing before the Tribunal on 20 September 2006.The appellant filed this affidavit in support of his application for judicial review before the Federal Magistrates Court. Ms Chen stated that when the appellant spoke to her in Huadu dialect she could not understand him. His Honour ultimately rejected this ground for a number of reasons, which can be summarised as follows:

(1)   Ms Chen's statement she could not understand the appellant when he was speaking in Huadu dialect does not mean that the level or standard of Cantonese interpretation at the 2 June 2005 hearing fell short of the standard required;

(2)   It was open to the Tribunal on the evidence before it (see above) to conclude that there were no significant difficulties with the interpretation at the 2 June 2005 hearing;

(3)   Mr Varess, for the appellant, had not taken him to any part of the transcript attached to Ms Chen's affidavit to point to any instances where the level of interpretation had been inadequate at the 2 June 2005 hearing;

(4)   No particulars had been given by the appellant as to how the failure to provide a Huadu interpreter had affected the level of interpretation at the 2 June 2005 hearing;

(5)   Likewise, he had not been taken to any parts of the extract of the transcript of the 29 August 2006 hearing to point to any instances where the level of interpretation had been inadequate, nor had any particulars been given of any such inadequacies.

Beyond the general complaints of the appellant and the affidavit of Ms Chen (which was focused on the hearing of 2 June 2005) there was nothing to show that the level of interpretation at the 29 August hearing had been inadequate;

(6)   No complaint was made about the 20 September hearing.

36                  Turning to the second aspect of ground (4), the appellant claimed that the Tribunal had misunderstood the appellant's claims in relation to the non-registration of his children in China. This was said to have arisen at the hearing before the previous Tribunal on 2 June 2005 and in considering the appellant's further statement dated 22 June 2005 and submitted on 24 June 2005. The appellant claimed his explanation was that his children were registered with the local authorities but were not registered with the provincial public security authorities that deal with household registration.

37                  His Honour reviewed the reasons of the Tribunal on this aspect and noted that it had assessed all the claims made and accepted some but rejected others. His Honour concluded that the findings made by the Tribunal on this aspect were open on the evidence and did not show any misunderstanding as to what the appellant had said or claimed to have said at the hearing on 2 June 2005.

38                  Federal Magistrate Nicholls therefore dismissed the appellant's application for judicial review.

GROUNDS OF PRESENT APPEAL

39                  The notice of appeal filed in this Court on 27 December 2007 effectively raises three grounds of appeal, as follows:

(1) (a) The learned Federal Magistrate erred in failing to make a finding in relation to the appellant's complaint that the Tribunal had failed to have regard to evidence that the appellant's former adviser and the appellant had identified problems with the interpreter engaged by the Tribunal for the 2 June 2005 hearing, and more generally with Cantonese interpreters.

(1) (b) The learned Federal Magistrate erred in failing to find that the Tribunal had neglected to consider one or all of the matters(described at [31]) which, if accepted, could have led to a decision favourable to the appellant

(2) The learned Federal Magistrate erred in failing to find that the Tribunal made a jurisdictional error by failing to comply with s 424A in relation to the ‘Chin information’ and the ‘photograph information’.

40                  In his submissions before me Mr Varess, who appeared for the appellant, stated that the appellant did not seek to pursue the final part of ground 1(a) i.e. that he had identified problems ‘more generally with Cantonese interpreters’, and he did not seek to pursue ground (2). Further, he sought to amend ground 1(b) by deleting the words ‘one or all of’, thereby limiting the complaint to the identified interpreter problems (with the interpreter engaged at the 2 June 2005 hearing). The appeal before me therefore had a narrow focus on the problems the appellant claimed he or his agent had identified with the interpreter engaged at the first Tribunal hearing on 2 June 2005, and the consequences thereof for the success of his application.

CONTENTIONS

41                  As I have just observed, at the hearing before me Mr Varess appeared for the appellant. Mr Cleary appeared for the first respondent. Both had previously filed written submissions.

42                  Mr Varess submitted that the Federal Magistrate had been asked to consider whether the Tribunal had misunderstood both the claims made by the applicant and the evidence before the Tribunal about the identified problems with the interpreter engaged by the Tribunal for the 2 June 2005 hearing (in ground 4).  He submitted that the Federal Magistrate had dealt with the claims made by the appellant, but had failed to consider the other limb of ground (4), namely, the evidence before the Tribunal on the interpretation issue.  He submitted that the Federal Magistrate made this error in [62] – [72] of his reasons, and most particularly in his conclusion at [72].

43                  Mr Varess referred to the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2001) 168 ALR 407; [2000] HCA 1 at [64] and [65] (‘Durairajasingham’) where his Honour observed that the obligation in  s430(1)(c) and s430(1)(d) of the Act required the Tribunal to state whether it had rejected or failed to accept evidence going to a material issue in the proceedings where rejection of evidence is one of the reasons for the decision.  He also referred to the decision of Justice Conti in SZGKX v Minister for Immigration and Citizenship [2007] FCA 461 at [23] (‘SZGKX’) where his Honour referred to McHugh J’s decision in Durairajasingham and observed that the Tribunal therefore needed to make clear the nature and extent of its reasons for rejecting evidence before it which, if accepted, would be capable of producing an ultimate outcome different to that which was reached. 

44                  Mr Varess then took me to the facsimile sent by Ms Di Giglio, the appellant’s former advisor, to the Tribunal on 24 June 2005 (ie three weeks after the hearing before the previous Tribunal on 2 June 2005).  He took me to a statement of the appellant attached to that facsimile which stated in the first paragraph: ‘I wanted to say that at the Tribunal hearing I think the interpreter had some problems with numbers and reading Chinese.  Now this makes me worried that maybe she was not sure about other things I said’.  Mr Varess submitted that this was the evidence that the Tribunal had failed to consider.  He submitted this was so because in the part of its reasons, where the Tribunal considered the appellant’s claims about having had problems with the interpreter engaged at the 2 June 2005 hearing, the Tribunal said, among other things:

‘The fact that the first hearing in 2005 had been conducted entirely in Cantonese and English; that the audio tape of that hearing did not appear to indicate any communication difficulties on that occasion; and that neither the applicant nor his advisor (a respected RACS solicitor) is on record as having expressed any concerns whatsoever about the interpretation on that occasion.’ 

45                  Mr Varess placed particular emphasis on the words ‘whatsoever’ and ‘on that occasion’. 

46                  Mr Varess took me to the Tribunal’s conclusions in the section of the Decision headed ‘Interpretation and Presentation of Claims’ where the Tribunal said:

‘The Tribunal finds that the applicant’s conduct demonstrates a disregard for the Tribunal and its proceedings. It also finds it inconsistent with the conduct of a person who genuinely fears persecution, who may be expected to appreciate and utilise the opportunity to explain his or her concerns, and persuade a decision maker as to the need for protection. 

The Tribunal concludes that the applicant’s conduct casts grave doubts on the veracity of his refugee claims and his credibility generally. …’

47                  Mr Varess submitted that this conclusion was the primary conclusion that led the Tribunal to reject the appellant’s refugee claims. Specifically, he submitted that the Tribunal’s finding - that the appellant was feigning an inability to understand Cantonese at the 2 June 2005 hearing - was fundamental to the Tribunal’s conclusion on the appellant’s credibility and this, in turn, was fundamental to the Tribunal’s conclusions about his refugee claims.

48                  Mr Varess referred again to Justice Conti’s decision in SZGKX and particularly his concluding comments at[31] and [32].  He also referred to the Full Court’s decisions of NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2001] FCAFC 134 at [116] and [122] and to Flick J’s decision in SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390 at [40]-[43].  In particular at the end of [43] where Justice Flick described the evidence rejected in that case as evidence that: ‘could not be regarded as irrelevant to the ultimate adverse findings as to credit’.  Mr Varess submitted that the same could be said about the evidence that the Tribunal ignored in this case.

49                  Mr Cleary, for the first respondent, submitted that the conclusion the Tribunal reached about whether or not the appellant or his advisor had expressed any concerns about the interpreter at the 2 June 2005 hearing (set out above) involved an express reference to ‘on that occasion’ which he submitted, in context, meant at the hearing on 2 June 2005.  He submitted that this conclusion was not evidence that the Tribunal had failed to consider the statement attached to the facsimile submitted to the Tribunal on 24 June 2005.  In any event, Mr Cleary submitted that if the Tribunal’s conclusions in this respect did involve an error, it would only be an error of fact within jurisdiction and would not amount to jurisdictional error.  He submitted that the Tribunal was entitled to reach the conclusion that it did on the appellant’s credibility and entitled to reject his claimed difficulties with the interpreter at the 2 June 2005 hearing.  Finally he submitted that even if the Tribunal’s conclusions in relation to the appellant’s credibility were successfully challenged, the Tribunal had proceeded to consider each of the appellant’s claims independently of its conclusion on his credibility and had rejected each of them for the reasons set out in the Decision.  Mr Cleary submitted that the Tribunal’s decision should not therefore be interfered with.

CONSIDERATION

50                  To succeed in this appeal, the appellant must establish that there was error on the part of the Federal Magistrate: see Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586; [2007] FCAFC 170 at [20] per French, Tamberlin and Rares JJ relying upon Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [12] to [14] per Gleeson CJ, Gaudron and Hayne JJ. Moreover, because of the privative clause provisions in s 474 of the Act, any error allegedly made by the Federal Magistrate must amount to a jurisdictional error before this Court can interfere with the decision.

51                  It is therefore appropriate to start at the point where the appellant says the Federal Magistrate erred in this case.  Mr Varess submitted that error occurred at [62] to [72] of his Honour’s decision, in his consideration of the alleged interpreter problems, particularly in his conclusion at [72] as follows:

‘But even now, apart from the general complaints which it appears Mr Varess seeks to re-agitate before this Court, there is nothing before this Court to show that the Tribunal misunderstood any of the applicant’s claims, or aspects of his claims, and therefore failed to properly, and adequately, deal with these claims.’

52                  The specific error, so Mr Varess submitted, was that while the learned Federal Magistrate had dealt with the appellant’s claims about the alleged interpreter problems, he had neglected to consider and deal with the evidence that was before the Tribunal on that issue, specifically, the complaint the appellant made about interpreter problems in his statement attached to Ms Di Giglio’s facsimile of 24 June 2005 (‘the 24 June 2005 complaint’). Mr Varess submitted that this is apparent from the statement in the Tribunal’s decision that: ‘ ….neither the applicant nor his advisor…is on record as having expressed any concerns whatsoever about the interpretation on that occasion.’ In particular, he submitted that the words ‘whatsoever’ and ‘on that occasion’ indicated that the Tribunal had neglected to consider the evidence of the 24 June 2005 complaint. Finally, Mr Varess submitted that if this evidence had been considered and accepted, it would have been capable of producing an ultimate outcome different to that reached by the Tribunal, particularly the adverse conclusions as to the appellant’s credibility which underpinned the whole of the Tribunal’s decision.

53                  In my view this submission cannot be accepted for a number of reasons. First,  the word ‘whatsoever’, when read in context, was used as a means of emphasising the absence of any concerns about the interpreter’s performance, rather than meaning at ‘all times’, or something similar, as the appellant seemed to be suggesting.

54                  Secondly, the words ‘on that occasion’ are actually used twice in that section of the Tribunal’s decision.  The first use refers to the Tribunal having listened to the audio tape of the hearing on 2 June 2005 and having concluded that it did not ‘indicate any communication difficulties on that occasion’. Clearly, this is a reference to the occasion of the hearing on 2 June 2005. The second use of those words – the one the appellant has focused on - follows immediately thereafter and this suggests, in my view that it, too, is referring specifically to the occasion of the hearing on 2 June 2005.

55                  Thirdly, two paragraphs later in the Tribunal’s decision, there is, what appears to be, a clear reference to the 24 June 2005 complaint where the Tribunal says: ‘The appellant gave the Tribunal to understand that his then advisor had indeed mentioned a language problem following the first hearing.’

56                  In summary, therefore, the words: ‘ ….neither the applicant nor his advisor …… is on record as having expressed any concerns whatsoever about the interpretation on that occasion’, when read with the balance of that section of the Decision, mean that no complaint was made about the interpreter’s performance on the occasion of the hearing on 2 June 2005. The Tribunal made no error in reaching this conclusion; it was plainly correct on the evidence before it. Further, the statement does not provide evidence that the Tribunal neglected to consider the evidence of the 24 June 2005 complaint. To the contrary, it is clear that the Tribunal was aware of the 24 June 2005 complaint, because it makes a clear reference to it a few paragraphs later.

57                  It follows that since the Tribunal did not err in its conclusion about the absence of a complaint about interpreter problems at the 2 June 2005 hearing and since it did refer to the evidence of the 24 June 2005 complaint, it made no error in either of these respects and there was, therefore, no error for the Federal Magistrate to detect.

58                  In any event, even if the Tribunal had failed to consider the evidence of the 24 June 2005 complaint, in my view that failure would involve an error of fact within jurisdiction. In other words, I do not consider that if the evidence of that complaint were considered and accepted by the Tribunal, it would have been capable of producing an ultimate outcome different to that reached by the Tribunal.

59                  The first reason for this conclusion follows from my finding that the 24 June 2005 complaint was specifically referred to by the Tribunal and it still came to its conclusion to reject, as feigned, the appellant’s claims that he had interpreter problems. While the Tribunal did not expressly accept or reject the evidence of the 24 June 2005 complaint, it was clearly aware of it and it still reached the conclusions that it did on this issue. It is clear on the authorities that the Tribunal was not required to give reasons for rejecting evidence inconsistent with its conclusions, nor to refute each piece of evidence relied upon by the appellant on this issue, nor even in those respects where there was evidence contrary to the conclusions: see Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [64] and [65] per McHugh J.

60                  The second reason flows from the terms of the 24 June 2005 complaint itself. The part of the statement attached to the 24 June 2005 facsimile that is relied upon by the appellant reads: ‘I wanted to say that at the Tribunal hearing I think the interpreter had some problems with numbers and reading Chinese.  Now this makes me worried that maybe she was not sure about other things I said’.

61                  In my view, even if it were considered and accepted (on the assumption that it was not) this statement, at its highest, amounts to a vague, general and un-particularised expression of concern about some aspects of the interpreter’s performance at the 2 June 2005 hearing.  It certainly does not constitute a forceful or detailed complaint about any significant interpretation problems at the 2 June 2005 hearing such that the Tribunal was bound to give reasons for rejecting it. It is not without significance that this complaint was made three weeks after the 2 June 2005 hearing and apparently never followed up.

62                  In an analogous situation, to succeed in establishing that the interpreter’s performance at the 2 June 2005 hearing was such that the appellant was not afforded a fair opportunity to present his claims and evidence, the appellant would need to have produced a transcript of that hearing and to have demonstrated specific examples of the interpreter’s performance unfairly affecting the presentation of his claims and evidence. This was the approach adopted by Justice Kenny in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 and followed by a number of other judges since: see for example, Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172 per Mansfield J and VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 per Finkelstein J.  In fact, the appellant made an attempt to demonstrate this before the Federal Magistrate and that attempt was rejected by him for the reasons stated at [73] to [83]. It has not been raised as a ground of appeal before me.

63                  Thirdly and finally, even if the 24 June 2005 complaint were considered and accepted by the Tribunal (assuming it was not), it would be just one of a number of matters the Tribunal relied upon in deciding to reject the appellant’s claims that he had interpretation problems, or problems communicating in Cantonese. The matters included the fact that communication problems were not apparent from listening to the audio tapes of the 2 June hearing; the fact that neither the appellant nor his advisor expressed concern at the hearing on 2 June 2005; the fact that the appellant had not requested a ‘Huadu’ interpreter prior to the day before the first stage of the hearing before the Tribunal and had twice requested a Cantonese interpreter; and finally the appellant’s history, including his schooling and business activities, which did not suggest that he was anything less than fully functional in Cantonese.

64                  For these reasons, I do not consider that the Tribunal made any error in its consideration of the evidence before it on the appellant’s claimed interpretation problems. It follows that there was no error on the part of the learned Federal Magistrate.

65                  I therefore order that this appeal be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:         20 June 2008