(1) That the application filed 22 April 2010 be dismissed.
(2) That the Applicant pay the Respondent's costs fixed in the sum of $5,865.00.
[2]
On 22 April 2010 the applicant filed an application for review, which seeks to review the decision of the Refugee Review Tribunal. The application itself did not contain any grounds for review. However, since that time, the applicant has forwarded to the respondents and to the Court, a document which contains his principal complaints against the tribunal. That document is marked exhibit 1. The principal complaints identified by the applicant are three-fold. First is an allegation of bias. Second is a complaint concerning the interpretation services provided at the hearing before the tribunal and a third is the rescheduled hearing and the conduct of that hearing and, in particular, his physical state of being before the rehearing which was conducted.
At the outset it needs to be stated that unless the applicant can establish that the tribunal went beyond jurisdiction in making its decision, the decision will be regarded as a privative clause decision and be binding and conclusive.
Moving then to the background. The applicant claims to be a citizen of China, born on 30 June 1971. He arrived in Australia on 14 April 2003 as the holder of a TU580 student visa. After the expiry of that visa he applied for a protection (class XA) visa on 5 August 2009. On 12 October 2009 the delegate of the Minister refused his application for the protection visa. The applicant then made application for review to the Refugee Review Tribunal on 9 November 2009, the receipt of which application was acknowledged on 10 November 2009.
On 18 December 2009 the tribunal wrote to the applicant advising that it was unable to make a decision in his favour on the material before it and, accordingly, the applicant was invited to a hearing to give oral evidence and present arguments. The hearing was listed for 12 January 2010 at Brisbane. However, on that date the applicant attended the tribunal's premises in Sydney. A postponement of the hearing was requested and after discussion between the applicant and tribunal staff, it was agreed that the hearing would be rescheduled to the next day, 13 January, at Brisbane.
On 13 January at Brisbane, the applicant appeared before the tribunal and the hearing proceeded. On 25 January 2010, the tribunal wrote to the applicant, asking for comments in relation to information. That further information was identified by the tribunal as the reason or part of the reason that the tribunal may decide that the applicant was not entitled to a protection visa. The tribunal's invitation, in that regard, was in accordance with its obligations pursuant to s.424A of the Migration Act 1958 (Cth).
The tribunal, in its request, required or requested the applicant to respond by 18 February. The matters that the tribunal sought particulars of were as follows. Knowledge in relation to the Shouters, information concerning the applicant's daughter in Australia, information concerning his delay in making a protection visa application, information concerning renewal of his Chinese passport, information concerning his initial ability to depart China, information on how he acquired knowledge of Lee Zhruan's fate and information concerning religious freedom in Fu Jian Province.
The applicant responded to the request on 17 February and that request was received by the tribunal on 19 February. Despite the provision of that additional information, the tribunal affirmed the decision not to grant the applicant a protection visa, by its decision of 31 March 2010. That decision was forwarded under cover of letter of 1 April 2010 to the applicant.
In summary, the tribunal was not satisfied that the applicant had a well-founded fear of being persecuted in China for any convention reason and accordingly, he was not a person to whom Australia had protection obligations under the Refugees Convention, as amended by the Refugees Protocol. It follows he did not satisfy the requirements of s.36(2) of the Migration Act.
As I have earlier noted, the Court has jurisdiction to review decisions unless they are privative clause decisions. Ordinarily a decision of the Refugee Review Tribunal is a privative clause decision. However, if the decision contains a jurisdictional error, the decision is not protected by s.474 of the Migration Act and is subject to judicial review. The concept of jurisdictional error is well understood and perhaps best summarised in the decision of Minister for Immigration and Multicultural Affairs v Yusuf,[1] where at [82] the following observation was made:
"An administrative tribunal will fall into error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion and that the tribunal's exercise, or purported exercise of power is thereby affected, it exceeds its authorities or powers. Such an error of law is a jurisdictional error that will invalidate any order or decision of the tribunal which reflects it."
There are three grounds advanced by the applicant against the Tribunal's decision. The first ground is the applicant's allegation of bias. The substance of the complaint is to be found in paragraph 4 of his letter, exhibit 1. In that paragraph the applicant noted:
"So if the tribunal didn't believe my statement, why bothered interviewing me for five hours. I believe that the tribunal was repeating the questions and kept me from eating anything. The purpose was to starve me and make me dizzy. By doing this the tribunal could easily found refusal reason because my answers would be unorganised. I believe that the officer was biased against me. It is not fair to me".
The required standard for a finding in actual bias is that the state of mind described as "bias" in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. It is a rare and almost exceptional case where actual bias can be demonstrated solely from the published reasons for decision. In any event, even an allegation of apprehended bias must be firmly established. From my review of the tribunal's very comprehensive reasons for decision, there appears to be no basis for concluding that the decision demonstrates a lack of good faith or a closed mind in the form of pre-judging the applicants application.
The second ground raised concerns difficulties with interpretation. In his letter, exhibit 1, the applicant complained at the beginning:
"I asked the tribunal to slow down the interpretation because my Mandarin is not good, either in writing or listening. The tribunal refused my request. They found a local interpreter as it was in very short notice. The interpreter was not professional, and to interpret one of the Ten Commandments, remembered the Sabbath day. I had to repeat for five times until the interpreter could interpret it correctly. I suspect that a lot of other words were not interpreted correctly, causing some confusion to the RRT officers. I was repeatedly asked about questions which spent me double or triple of the time.
At the outset, it is necessary to observe that the tribunal was aware of the applicant's initial difficulties with interpretation and as conscious of those matters when considering his evidence. It initially adjourned and obtained a further interpreter and noted that the applicant had expressed satisfaction with that. Further, because the applicant failed to raise this matter formally as a ground in its application, no transcript of the proceeding has been obtained or expert evidence in relation to the transcript and interpretation services have been provided".
For the applicant to succeed in respect of this ground, he needs to first establish that the standard of interpretation at the hearing was so inadequate that he was effectively prevented from giving evidence. Secondly, that errors made by the interpreter at the hearing, were material to the conclusions of the tribunal which were adverse to the applicant.
When addressing those issues, it must be remembered that a perfect translation is not required, but it will suffice if the translation is sufficiently accurate to permit the idea or concept being translated, being communicated. That of course accords with the Full Court's recent statement that the appellant must establish that he was effectively prevented from giving his evidence.[2] When one reads the decision of the tribunal in its entirety, it is apparent that the tribunal fully appreciated the applicant's case, and the ideas or concepts that underlay the applicant's application.
For instance, the tribunal accepted the applicant's evidence that he was a Christian. In part, the tribunal's views on that matter were as a result of its probing the applicant concerning his knowledge of Christianity. Likewise, the tribunal's conclusions in relation to the applicant being a Shouter, or being associated with Shouters, although adverse to the applicant, were based upon the applicant's testimony concerning issues relevant to the conduct of Shouters. It follows, in my view, that the tribunal had little difficulty in developing an adequate appreciation of the ideas or concepts that were being communicated to it through the translator and it follows that he was not effectively prevented from giving his evidence.
The third matter raised was the rescheduled hearing. The statutory prescribed period for advice of the hearing is seven working days. However, where the hearing is rescheduled the prescribed period does not have to be given again. What must be given is a reasonable period of time by way of notice. As to whether or not the period of notice given is reasonable must be considered in its context. In this case the applicant attended initially in Sydney on 12 January instead of Brisbane. He had flown to Sydney from Brisbane for the day for that purpose. When it was realised that there had been an error concerning the venue for the hearing, discussions ensued between the tribunal's representatives, the applicant and his advisers.
It was following those discussions that it was agreed that the hearing would be held the next day in Brisbane. It follows that the applicant appears to have conceded to the adjourned time and place for the rescheduled hearing. What is required is that the applicant be afforded a real and meaningful opportunity to attend the hearing. The fact that the applicant engaged in and settled upon the rescheduled hearing date evidences the fact that the rescheduled date presented him with a real and meaningful invitation to attend the hearing.
Further matters amplified that conclusion. First, the applicant completed the response to the rescheduled rehearing application and second that he attended at the rescheduled hearing itself. Although there are some authorities that deal with instances of rescheduling of hearings they are all instances of occasions where there has been a failure to attend the rescheduled hearings.[3] That is not the case here and those authorities do not assist.
It follows, in my view, that in this case the period of notice for the rescheduled hearing time was reasonable and the applicant was afforded a proper hearing. It follows that there was no jurisdictional error identified on that ground.
By way of general observation I note that what the applicant really seeks is to have the matter remitted for rehearing because he is unhappy with the findings of fact that were made by the tribunal at first instance. What he truly seeks is impermissible merits review.
As I have noted in the absence of jurisdictional error, the court has no jurisdiction to review a privative clause decision and it follows the application is dismissed.
I will direct that the applicant pay the respondent's costs fixed in the sum of $5,865.00 otherwise the application is dismissed.
[3]
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burnett FM
[2]Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 230 at [17] per Mansfield and Selway JJ.
[6]
[3] See Minister for Immigration and Multicultural Affairs v SZFML[2006] FCAFC 152; (2006) 154 FCR 572 at [76] - [83]; See also SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1026; (2005) 144 FCR 251 and SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 78 endorsed by the Full Court; and recently SZNSN v Minister for Immigration and Citizenship[2009] FMCA 1193 at [25].