FEDERAL COURT OF AUSTRALIA

SZKBL v Minister for Immigration and Citizenship [2008] FCA 1064

Migration Act 1958 (Cth)

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1

SZKBL v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2466 of 2007

REEVES J

 18 JULY 2008

DARWIn

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant is a citizen of China.  She arrived in Australia during June of 2006 and applied for a protection visa (class XA) on 24 July 2006.  In that application she relied upon police harassment and economic deprivation suffered in China which, she said, would continue upon her return to China because she had become known to authorities when she petitioned them following wrongful police actions.  That visa application was rejected by a delegate of the first respondent and the appellant has unsuccessfully sought review before the Refugee Review Tribunal (‘the Tribunal’) in an application lodged 27 October 2006, before the Federal Magistrates Court in an application lodged 19 January 2007, and now before this Court.  

BACKGROUND - SUMMARY OF FACTS

2                     It is necessary to briefly set out some of the history of this matter. The appellant provided a statutory declaration with her visa application which essentially stated: that her cousin had been physically and mentally damaged by the Public Security Bureau in China when the authorities (erroneously) thought that he had murdered his employer; that she had petitioned the Chinese government at all levels for redress for her cousin; that she had been arrested in December 2005 for “seriously damag[ing the] good reputation of the  policemen in order to incite anti-government movement” and subsequently sent to a labour camp; and that police harassment since her release in March 2006 had rendered her unemployable.

3                     Following the lodgement of her review application with the Tribunal, it wrote to the appellant and invited her to attend a hearing before it on 4 December 2006, to give oral evidence and present arguments in support of her claims. The Tribunal also wrote to the appellant’s agent on 8 November 2006 seeking additional information regarding her cousin, her employment and her legal representation.

4                     The appellant attended the hearing on 4 December 2006 and produced a certificate to establish her relationship with her cousin, as well as a document detailing the cessation of her employment in late 2005 and a document certifying that her cousin suffered from mental illness. The appellant was assisted at that hearing by a Chinese interpreter in her dialect, being Fuqinese.

THE TRIBUNAL’S DECISION

5                     The Tribunal accepted that the appellant had a cousin with a medical condition and that she had lost her job in China. However, the Tribunal did not accept that the cousin’s medical condition was caused by wrongful police action, nor that the appellant had petitioned the authorities and lost her job as a result of that.  The Tribunal questioned the appellant in detail about the circumstances surrounding these claims and about the appellant’s departure from China. The Tribunal ultimately held that the appellant had been “evasive and vague in her evidence” and that as she had “not been truthful in her evidence to the Tribunal. The Tribunal cannot accept that the [appellant] gave an accurate description of events as they happened in China”.

6                     The Tribunal recorded that, as a result, it did not accept:

(a)    “… that the [appellant] wrote letters to the Chinese government relating to the treatment of her cousin in custody or seeking compensation for her cousin or for any other reason”;

(b)   “… that the [appellant] came to the attention of the authorities because of such letters”;

(c)     “… that the [appellant] had expressed a political opinion or was perceived as having such an opinion or as having expressed such an opinion, as a result of writing letters”; nor

(d)   “… that the [appellant] was targeted or persecuted by the Chinese authorities because of these letters”;

and therefore it was not satisfied that the appellant was a refugee within the meaning of the Convention. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

THE FEDERAL MAGISTRATE’S DECISION

7                     The appellant’s Application for judicial review filed in the Federal Magistrates Court set out the following grounds for review:

1.                  There was an error of law in the Tribunal’s decision constituting a jurisdictional error;

2.                  There was procedural error in the Tribunal’s decision constituting an absence of natural justice.

The particulars accompanying these grounds alleged a failure to comply with ss 424A and 425 of the Migration Act 1958 (Cth) (‘the Act’), respectively.

8                     The appellant attended a hearing before Federal Magistrate Emmett on 22 November 2007. At that hearing the appellant claimed that she had not had the benefit of a Fu Qing interpreter before the Tribunal. The Federal Magistrate rejected this claim based upon her review of the Tribunal’s decision record.

9                     In relation to the first ground of review, her Honour held that “inconsistencies provided by an applicant in oral evidence to a Refugee Review Tribunal is not information that enlivens the obligations of s 424A(1) of the Act”, citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. Further, her Honour concluded that, on a fair reading of the Tribunal’s decision, it had specifically noted the appellant’s anxiety and made allowances for it – and her Honour earlier noted that the appellant had failed to identify any matters where her anxiety her affected her ability to present her evidence and arguments to the Tribunal.

10                  In relation to the second ground, her Honour was not satisfied that the Tribunal had refused to make allowances for the appellant’s mental state. To the contrary, her Honour again observed that the appellant’s “emotional distress was taken into account by the Tribunal in the consideration of her claims”, and that in the process of considering the claims the Tribunal had explored the appellant’s claims with her in detail and made findings based on the evidence and materials before it and for which it provided reasons (including adverse credibility findings). Her Honour concluded that she had no jurisdiction to interfere with either the Tribunal’s findings, or its ultimate decision to affirm the delegate’s decision.

GROUNDS OF THE PRESENT APPEAL

11                   The Notice of Appeal filed in this Court on 18 December 2007 raises the following two grounds of appeal:

1.                  The judgement of Judge Emmett FM [sic] failed to find the Appellant was denied procedural fairness where the Tribunal failed to make a finding on a substantal. [sic] clearly articulated argument rely [sic] on established fact and therefore failed to carry out the review required by the Migration Act.

2.                  The judgement of Judge Emmett FM [sic] failed to arrange Fu Qing dialect for my FMC matter without giving me a change to argue my case, her Honour also erred in failing to find the Tribunal had failed into jurisdictional error.

THE CONTENTIONS

12                  The hearing of this appeal occurred over a number of dates. At each hearing the appellant appeared unrepresented but assisted by a Fuqinese interpreter. At the first hearing on 17 April 2008 the appellant made oral submissions in which she claimed, among other things, that she had not previously been assisted by an interpreter in her own dialect and that she had been very distressed at the hearings before the Tribunal and the Federal Magistrate. She asked me to refer her application back to the Tribunal, so that she might be in a better position to put her evidence and arguments before the Tribunal. 

13                  Mr O’Brien appeared on behalf of the first respondent at each hearing. At the first hearing he consented to an adjournment so that he might arrange to provide a transcript of the hearing before the Tribunal to the Court. When the hearing resumed on 14 May 2008, Mr O’Brien filed and relied upon an Affidavit annexing a copy of the transcript of the Tribunal hearing. Because the appellant had not had an opportunity to consider the transcript before that hearing, Mr O’Brien consented to a further adjournment to 16 May 2008 to allow an interpreter to interpret the transcript for the appellant.

14                  In further oral submissions on 16 May 2008, the appellant told me that she had had a headache at the time of the Tribunal hearing and that she had cried a lot.  She therefore thought she was unable to express herself properly to the Tribunal and that the Tribunal had misunderstood what she was saying.  She submitted that she had not been given an opportunity to comment on the information the Tribunal relied upon to make its decision.  Finally, she submitted that the Tribunal had misunderstood her evidence about her using her own passport (in her own name).

15                  Mr O’Brien submitted that the record disclosed that appellant did not have the problems she claimed to have had at either the Tribunal hearing, or at the hearing before the Federal Magistrate.  He submitted that this was apparent from the transcript of the Tribunal hearing where the Tribunal member asked the appellant whether she understood the interpreter and she responded in the affirmative.  In relation to the hearing before the Federal Magistrate, Mr O’Brien submitted that the Federal Magistrate had noted in her reasons for decision (at [34]) that the appellant had been provided with an interpreter, yet there is no indication anywhere in the Federal Magistrate’s reasons of the appellant complaining about the interpretation that had been provided.

16                  In response to the suggestions by the appellant that she had not been treated fairly at the Tribunal hearing, Mr O’Brien took me to the transcript of that hearing to submit that the Tribunal had made due allowance for any difficulties flowing from the appellant’s emotional state at the hearing. He also submitted that the transcript showed that the appellant had been evasive and vague in response to many of the Tribunal’s questions of her.

CONSIDERATION

17                  The first ground of appeal alleges that the learned Federal Magistrate failed to find that the appellant had been denied procedural fairness by the Tribunal.  No particulars have been given of this ground.  It is similar to the second ground of review before the Federal Magistrate which alleged “procedural error” constituting an absence of natural justice.  The particulars of that ground of review are set out at [47] to [48] of the Federal Magistrate’s reasons for judgment.  Essentially they allege that the appellant was emotional at the hearing before the Tribunal and was therefore unable to give her oral evidence properly and accurately and the Tribunal did not give her a chance to rest or to adjourn the hearing.

18                  The Federal Magistrate’s conclusion in relation to the corresponding ground of review before her was as follows (at [51] and described above):

“Otherwise, the Tribunal invited the applicant to come to a hearing in accordance with the statutory regime, a fair reading of the Tribunal’s decision discloses that the Tribunal understood the applicant’s claims; explored them with the applicant in great detail; made findings in respect of those claims based on the evidence and material before it and for which it provided reasons”.

19                  While it is couched in terms of a breach of procedural fairness, I read this ground as a general complaint about the fairness of the hearing conducted by the Tribunal. As appears at a number of points in the Federal Magistrate’s reasons, her Honour made her assessment of the fairness of that hearing based upon her reading of the Tribunal’s reasons for its decision.  For my part, I have had the additional advantage of reading a transcript of the hearing before the Tribunal and, after some initial reservations, I have ultimately come to the same conclusion as her Honour.

20                  My reservations arose out of concerns I had that, despite what it said in its reasons for decision, the Tribunal may not have made due allowance for the appellant’s emotional state at the hearing, and that failing may have been compounded by the difficulties the appellant claimed to have had with the interpretation provided at that hearing. Further, I was concerned about the tenor of some of the Tribunal’s questioning of the appellant. However, having carefully considered the whole of the transcript, I am now satisfied that the Tribunal did make sufficient allowance for the appellant’s emotional state at the hearing and did provide her with a fair opportunity to give her evidence and put her arguments to it. I am also satisfied that the appellant did not have the interpretation problems that she claims to have had at that hearing. I have set out my reasons for coming to this latter conclusion in dealing with the second ground of appeal (below).

21                  As to the question whether the Tribunal made due allowance for the appellant’s emotional state at the hearing and/or gave her a chance to rest or to adjourn the hearing, while one can never accurately gauge a person’s emotional condition from a type-written transcript, in my view it is clear from the transcript that the Tribunal member did offer the appellant the opportunity for a break at any time and did endeavour to assist her when the appellant appeared (at least from the transcript) to be emotionally upset. First, at the commencement of the hearing (at page 3 of the transcript), the Tribunal member told the appellant that she should tell her if she wanted a break at any time during the hearing. Then later, when the appellant appeared to become upset, the following exchange occurred (at page 9 of the transcript):

MS RAIF:  Do you want a glass of water and continue if you can.

THE INTERPRETER:  Yes, I can continue.

MS RAIF:  Okay.

THE INTERPRETER:  I can continue.

MS RAIF:  Please.

Further, approximately half way through the transcript of the hearing (at page 18 of the transcript) the Tribunal member herself adjourned the hearing for about 10 minutes. Finally, and perhaps most significantly, the appellant is not recorded as either asking the Tribunal member to take a break, or complaining that she was unable to continue because she was too upset, nor any similar request or complaint anywhere in the transcript.

22                  As to the appellant’s related complaint that she was unable to give her oral evidence properly and accurately, nowhere in the transcript does she complain that she has not been able to properly explain herself, nor that she has been unable to properly put her claims to the Tribunal. In addition, at the conclusion of the hearing, the Tribunal offers the appellant an open ended opportunity to say anything more she wishes to say, an opportunity which she accepts, as is recorded in the transcript as follows (at page 36):

MS RAIF:  [Appellant], I don’t have any more questions for you.  Is there anything else you want to tell me?

THE INTERPRETER:  I ask for the protection from you, otherwise if I go to China I will die.

MS RAIF:  [Appellant], is there anything else you would like to tell me before we close?

THE INTERPRETER:  Yes.  I’d like to say something.  I have suffered a lot, I’ve gone through many things. ….. My husband doesn’t care about the family and we are greatly in debt.  I have to look after the two children and an old woman.  I have no other choice, otherwise my two children, they need me. 

Before I left China, three of us, my two children and me, we cried together.  I told my children, “Mother have to go, there’s no other way.” 

I don’t know about why, that’s my life, pre-destined, I have to go through so much troubles.  When I was persecuted by the police I didn’t want to live but I thought about my two children, so I kept going.  The father wasn’t at home and without the mother it’s very hard for the children.

MS RAIF:  [Appellant], thank you for talking to me. ….. I will make my decision as quickly as I can.

23                  As to my initial concerns about the tenor of some of the Tribunal’s questions, I have ultimately concluded that this arose out of the evasive and vague responses the appellant gave to many of the Tribunal’s questions, rather than as a result of any impropriety on the part of the Tribunal. It is clear that the Tribunal member was forced to repeat her question to the appellant a number of times before receiving any meaningful response to the question she was asking. The questions were simple and direct and there is no indication that the appellant’s repeated failure to address the question was caused by emotional distress or interpretation problems.  While the transcript is replete with examples, the following occurs almost at the outset of the hearing (at pages 4 to 5 of the transcript):

MS RAIF:  And when were you working in that place?

THE INTERPRETER:  A few years ago.

MS RAIF:  Do you remember the dates when you started and when you finished working there?

THE INTERPRETER:  Until December last year I was arrested by the police and I was sacked.

MS RAIF:  When did you start working there?

THE INTERPRETER:  For a few years.

MS RAIF:  Do you remember the time when you started working at the factory?

THE INTERPRETER:  I worked there for two to three years.

MS RAIF:  So, what were you doing before then?

…

MS RAIF:  You told me you worked in the biscuit factory for two to three years, so what were you doing before then?

THE INTERPRETER:  Before that, later on I was arrested by the police.

MS RAIF:  Yes, but I’m asking you what you were doing before you were working at the biscuit factory.

THE INTERPRETER:  I didn’t work before that.  I was fired by the biscuit factory, I was arrested by the police, I was fired.

MS RAIF:  [Appellant], before you worked in the biscuit factory until December 2005, and you told me that you worked there for two to three years, so let’s say you worked there from 2002 until 2005, what were you doing before 2002?

THE INTERPRETER:  I was arrested by the police.

MS RAIF:  [Appellant], you were arrested in 2005.  I am asking you what happened before 2002.

THE INTERPRETER:  Before I worked in the biscuit factory?

MS RAIF:  When did you start working in the biscuit factory?

THE INTERPRETER:  I worked there last year and the year before last.  Sorry, I worded there for two years until the year before last year.

MS RAIF:  So, before you worked in the biscuit factory, what were you doing?

THE INTERPRETER:  I didn’t work before.

MS RAIF:  So, how did you support yourself when you didn’t work?

THE INTERPRETER:  I had a business with my husband, then the business not doing well, so it was finished.

MS RAIF:  What kind of business was it?

THE INTERPRETER:  Farming, farming, farm sea – seafood farming and then the business was no good and he ran away.

24                  Based on this and many other examples in the transcript, I am satisfied that the Tribunal had a firm evidentiary basis for concluding that the appellant was evasive and vague in her answers to many of the Tribunal’s questions about the events in China. Of course, the adverse conclusions the Tribunal reached about the appellant’s credibility is a matter “par excellence” for the Tribunal: see Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. 

25                  For these reasons, I have concluded that the appellant’s general complaint about the lack of fairness at the Tribunal’s hearing has no merit. I do not therefore need to consider whether a lack of fairness at the Tribunal hearing would constitute jurisdictional error.

26                  The second ground of appeal alleges that the learned Federal Magistrate failed to arrange a Fu Qing dialect interpreter and that her Honour also erred in failing to find the Tribunal had “failed into jurisdictional error”.  No particulars are given of the latter allegation.  While the words “also erred” are used, I assume from the lack of any particulars beyond those stated in the former allegation that, it is intended to follow from the former allegation. In relation to the former allegation, it is similar to an oral claim (significantly not a ground of review) made by the appellant before the Federal Magistrate to the effect that the Tribunal had failed to arrange a Fuqing interpreter.  In relation to this claim the learned Federal Magistrate noted that the Tribunal had stated in its decision that the appellant was assisted at the Tribunal hearing by a “Chinese interpreter in Fuqinese dialect” (at [36] of the reasons).  Her Honour therefore rejected this claim.

27                  Having now had recourse to the transcript of the hearing before the Tribunal, it is apparent that the appellant had little difficulty with the interpretation provided at that hearing. The transcript of the Tribunal hearing discloses that the appellant was asked by the Tribunal member at the beginning of the hearing “do you understand the interpreter?” and she responded through the interpreter “yes, I can understand him”.  Further, the Tribunal member said to the appellant that if at any time she did not understand the interpreter, she should let her know, and the appellant responded through the interpreter “I can ask you”.  Thereafter, throughout the 36 pages of transcript, I cannot see any grounds for, or actual complaint by the appellant about the interpretation. 

28                  As to the interpretation provided at the hearing before the Federal Magistrate, her Honour records (at [34] of the reasons) that “the applicant appeared before this Court without representation.  However, she had the assistance of an interpreter.”  The learned Federal Magistrate does not record whether that interpreter was competent in the Fuqinese dialect.  However, this statement occurs just two paragraphs before the discussion about the appellant’s claim that the Tribunal had failed to arrange a Fu Qing interpreter for the hearing before it (see above).  I therefore infer from the absence of any mention of a problem with the interpretation provided for the hearing before the Federal Magistrate, that the appellant did not raise such a problem. If she did not raise such a problem at the time, the obvious inference is that she had no difficulties because she had indeed been provided with a Fu Qing interpreter. It is therefore difficult to see how the Federal Magistrate committed any error, let alone a jurisdictional error, in relation to the interpretation provided at the hearing before her.

29                  For these reasons, whether it relates to the interpretation provided at the hearing before the Tribunal, or at the hearing before the Federal Magistrate, I conclude that ground two of the Notice of Appeal has no merit.

30                  This appeal must therefore be dismissed.

Associate:

Dated:         18 July 2008