SZGSI v Minister for Immigration and Citizenship

Federal Court of Australia|2009-03-05|Before: McKerracher J

INTRODUCTION 1 The appellants (wife and husband) are citizens of China. They arrived in Australia on 20 October 2004. They left Australia on 22 October 2004 and travelled to New Zealand, re-entering Australia on 25 October 2004. On 5 November 2004 they lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as the Department was then named). A delegate of the first respondent refused the application for a protection visa on 22 November 2004. 2 On 21 December 2004 the appellants applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The first Tribunal affirmed the delegate's decision on 18 May 2005. The appellants sought review of the Tribunal's decision by the Federal Magistrates Court. On 18 October 2006 the Court dismissed the application. The appellants appealed to the Full Federal Court and on 27 July 2007 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. The second Tribunal also affirmed the decision of a delegate of the first respondent not to grant the appellants a protection visa. 3 This is an appeal from the judgment of a Federal Magistrate delivered on 17 December 2008 (SZGSI & Anor v Minister for Immigration & Anor [2008] FMCA 1649). His Honour dismissed an application for judicial review of the decision of the second Tribunal handed down on 20 March 2008.

BEFORE THE SECOND TRIBUNAL 9 The Tribunal accepted that the second appellant's family were Christians. It accepted that he conducted a petrol station business. It accepted that the second appellant was not as deeply involved with the practice of Christianity as either his wife or his family due to involvement with the petrol station business. The Tribunal also accepted that the appellants were able to identify by name the two persons they regarded as the female pastors of the Church and noted that they had given largely consistent accounts of the claimed police raid on the Church group in February 2004. The Tribunal further accepted that the appellants had given largely consistent accounts of their links with an unauthorised family Protestant church in China. The Tribunal also noted the appellants' concerns over the standard of interpretation; nevertheless it was satisfied that the appellants had the opportunity to appear before it and present evidence and arguments, satisfying s 425 of the Migration Act 1958 (Cth) (the Act). 10 However, the Tribunal noted the vagueness of the evidence about the name and characteristics of the family church they attended. Based on the evidence of the appellants that the activities of the Church continued after the February 2004 incident, the Tribunal doubted that the incident did actually occur. The Tribunal was not convinced that the Church to which the second appellant's family belonged existed secretly after February 2004 or under the kind of pressure that the appellants claimed. The Tribunal found that the police had never taken an interest in the family church group and all of the evidence in this regard was dismissed as unreliable. 11 The Tribunal could not be satisfied that the family church referred to in the appellants' claims was an unregistered church. In making this finding the Tribunal took into account a number of factors, including the vagueness and inconsistency of evidence on matters going to the characteristics of the Church, the identification of the church to which the second appellant's family belonged, DVD evidence of a very public church community to which the second appellant's family belonged and the fact that the appellants had previously misled the Tribunal. The Tribunal found that the Church in question was an authorised Protestant church, whose practices were openly attended and supported by local residents in the first appellant's home town. It was not satisfied that the first appellant would face a real chance of persecution for identifying with the church. The Tribunal was further not satisfied that the first appellant was genuinely or closely involved with the Church. The appellants' conduct in Australia was disregarded pursuant to s 91R(3) of the Act as the Tribunal felt it was undertaken with the purpose of strengthening their claims.

ON REVIEW BY THE FEDERAL MAGISTRATES COURT 12 Before the Federal Magistrate the primary contentions of the appellants were that: · errors occurred due to inadequate interpretation before the Tribunal; · the Tribunal decision was affected by bias; and · the Tribunal misinterpreted the evidence of a witness. 13 The learned Federal Magistrate noted that the Tribunal had asked the appellants a number of questions and was sceptical of their evidence. However his Honour was satisfied that the Tribunal had considered the appellants' claims at face value, even though it had somewhat grudgingly accepted the consistency of some of their evidence. 14 His Honour held that consideration of the appellants' open admission of misleading the first Tribunal could not support an assumption of bias in the second Tribunal. His Honour found that though the hearing was conducted 'in a somewhat robust manner', this did not necessarily amount to bias. In this regard his Honour examined two incidents during the Tribunal hearing which had been brought to his attention; however he found that the comments and remarks arising in these incidents were not so serious as to constitute evidence that would go to a reasonable apprehension of bias. His Honour concluded that the allegation of bias had not been made out by the appellants. 15 The learned Federal Magistrate noted that the appellants had, through their migration agent, brought the deficiencies in interpretation to the attention of the Tribunal in a post-hearing submission in reply to the s 424A letter. His Honour considered the appellants had not shown any significant failings in the interpreting that would have affected the decision. The deficiencies in interpretation were brought to the attention of the Tribunal, which had considered them. His Honour concluded that the appellants were not deprived of the opportunity of a fair hearing and that the Tribunal had complied with its obligations pursuant to s 425 of the Act.

GROUNDS OF APPEAL 16 The grounds of appeal are in a submission format. In summary they are: 1. The Tribunal has not acted fairly and did not give the application a fair assessment. 2. The Tribunal held a biased view against the appellants. 3. The Tribunal did not accept the appellants' new claims but rejected them referring to the difference between the new claims and the already admitted false claims in the original application. 4. The interpretation was not accurate and the appellants were not allowed to explain their concerns as to the accuracy of the interpretation at the hearing. 17 Although the grounds are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 18 At the hearing of the appeal before me the appellants stressed a number of matters. Some of them fairly arose from the grounds of appeal. Others did not. The first matter on which the first appellant addressed the Court was on the proposition that it was unfair that someone who had made a mistake on one occasion should have that mistake held against that person forever. In this regard, she explained that she was referring to the false account given on the first occasion before the Tribunal. Counsel for the first respondent, Ms Clegg made the point that it was reasonably open for the Tribunal to take into account in the relatively limited manner that it did, the admitted previous false testimony. However, it was taken into account only in relation to the question of whether the Tribunal should consider conduct which had occurred in Australia as evidence supporting the appellants' primary claim of Christianity and persecution. For the reasons which appear in the Tribunal decision, it disregarded the evidence which occurred in Australia on the basis that it was conduct calculated to assist the first appellant in pursuing her claim for refugee status. In my view that approach was correct. It was open to the Tribunal to take the admitted false evidence into account in that limited way and appropriate for the Tribunal to disregard the evidence of what had occurred in Australia. 19 More importantly, as counsel for the first respondent observed, quite independently of that issue, the analysis by the second Tribunal withstood scrutiny in its own right without any reference to the admitted falsity of the account given before the first Tribunal. In my view that submission is also correct. 20 The first appellant also complained of the inadequacy of the interpretation before the Tribunal. The appellants expanded their complaint covered by ground 4. I will deal with the broader ground 4 submission below. Her prime example of the inadequacy was the fact that the Chairman of her church gave evidence partly in English and partly in Mandarin through an interpreter. The first respondent pointed to the fact that specific reference to the church Chairman is not to be found anywhere in the grounds of appeal and it had not been raised in any other way prior to the hearing of the appeal. It is also the case that the evidence from the Chairman of the church necessarily in any probative way went only to the issue of the first appellant's conduct in Australia which was expressly and properly disregarded by the Tribunal. Thirdly, on a reading of the evidence given by the Chairman before the Tribunal, it was clear that some matters expressed by the Chairman were in English rather than in Mandarin. That this is so is evident from the transcript which is in the Appeal Book. Also in the Appeal Book is the official translation of words spoken in Mandarin as well as the interpreter's contemporaneous translation. The translation does not disclose errors of significance. Finally and in any event, the Tribunal member stressed that he had no doubt whatsoever as to the reliability of Mr Ng. 21 The first appellant also made submissions about her evidence concerning a third child born in Australia and the fact that she retracted certain claims concerning the consequences of having a second child born in China. She explained in her submissions that she retracted those claims simply because she did not wish to agitate the Tribunal member. These matters do not in any sense arise from the grounds of appeal but in any event could only go to credit. 22 The first appellant in the course of submissions made two other requests. One was for the Court to supply a free lawyer for her. As the first respondent made very clear in response, this request was made extremely late in the piece and while it was a matter for the Court as to whether a certificate for pro bono counsel might issue, there was no explanation as to why such a request had not been made at an earlier date. Order 80 r 4(1) relevantly provides: (1) The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court. (2) For subrule (1), the Court or Judge may take into account: (a) the means of the litigant; and (b) the capacity of the litigant to obtain legal assistance outside the scheme; and (c) the nature and complexity of the proceeding; and (d) any other matter that the Court, or Judge, considers appropriate. 23 When considering such an application, O 80 r 4(2) empowers the Court to take into account any matter it deems appropriate, including the means of the litigant, the capacity of the litigant to otherwise obtain legal assistance and the nature and complexity of the proceeding. This discretion is a broad one, and is not limited by those matters set out in O 80 r 4(2): see Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10]- [11]. 24 In Rivera v Minister for Home Affairs [2008] FCA 1 Tamberlin J emphasised the words '… may, if it is in the interests of the administration of justice…'. At [7]-[8] his Honour stated: 7 The issue in the present reasons is whether the discretion of the Court should determine that the "administration of justice" requires Mr Rivera's proceedings to be referred to the Registrar to arrange for pro bono legal representation. 8 In my view, the administration of justice in this case does not require that the matter be referred to a Registrar to arrange pro bono legal representation or advice for Mr Rivera because his application of 28 December 2007 discloses no reasonable prospects of success, and Mr Rivera has not adduced any evidence or provided any authority to indicate otherwise. The lack of reasonable prospects of success, or where a case is "patently hopeless" or has no "arguable basis", has been regarded by the Court as sufficient reason to refuse a referral under O 80 r 4: see Taylor [2005] FCA 319 at [10]; Rivera v The Commonwealth of Australia [2007] FCA 1465 at [34]. As a matter of discretion, therefore, I am of the view that it is not appropriate to prolong the present proceedings which are without merit. 25 As will be apparent from my consideration of the balance of the appeal argument, I do not consider this is an appeal which should succeed. In those circumstances, it does not, in my view, constitute an appropriate exercise of discretion to issue an order under O 80 of the Federal Court Rules even if that is a course which is otherwise open to the Court. 26 The second request made by the first appellant was for an adjournment of the appeal to permit her to recall the Chairman of the church to give evidence in relation to her contentions concerning translation difficulties. 27 As with her request for the Court to provide a pro bono lawyer, I indicated that I would consider those applications, as I have done, and I would rule on those either in my final reasons disposing of the appeal or, alternatively, on an interlocutory basis, adjourning the appeal. 28 I do not propose to adjourn the appeal to permit evidence and argument on the second issue. The issue of interpretation generally was canvassed at some length by the learned Federal Magistrate. Detailed consideration was given to the question of quality of translation. It has been accepted that some errors in translation occur in practically all circumstances partly because of the difficulty of finding direct correlations for expressions used in the respective languages. It is equally clear that if the translation errors are of significant dimension going to the heart of the issues, there will not have been a fair hearing. See for example: SZGWN v Minister for Immigration and Citizenship [2008] FCA 238. Unlike SZGWN, the specific translation difficulties said to have occurred in this case have not been raised on the notice of appeal, have not been supported by any evidence, have not been identified with the slightest precision and have not been said to occur in an area of the case which was critical to its disposition. I will therefore not allow an adjournment of the appeal.

Grounds 1 and 2 29 To demonstrate bias involving pre-judgement, the appellant must show the Tribunal had a closed mind to the issues raised and was not open to persuasion by the appellant's case. The Tribunal is entitled to form a strong adverse view; no inference of bias can be drawn from the mere adverse findings of the Tribunal's decision; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102. The question to be asked is whether by its mental state the Tribunal was disabled or unwilling to have regard to other relevant circumstances. The onus to demonstrate bias lies on the appellant and it is a heavy onus: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Actual bias is not easily proved, and it is a rare case in which it will be established on the basis of the Tribunal reasons alone: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668. 30 The test for apprehended bias for a decision of a Tribunal is formulated by reference to a hypothetical fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal. If this hypothetical observer would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided, then the allegation of apprehended bias will be made out; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. 31 In my view, the circumstances of the present case are not sufficient to give any indication at all of actual or apprehended bias on the part of the Tribunal. There were several findings in favour of the appellants. The Tribunal accepted that the appellants gave consistent accounts relating to their new claims, including their links to an unauthorised family Protestant church in China. The Tribunal found, however, that evidence about the name and characteristics of the family church the appellants attended was vague. It also found, based on the evidence of the appellants that the activities of the Church continued after the February 2004 incident, that the incident did not occur. The Tribunal was not convinced that the church to which the second appellant's family belonged existed secretly and under the kind of pressure that the appellants claimed existed after February 2004. The Tribunal found that the police had not ever taken an interest in the family church group, and all of the evidence in this regard was dismissed as unreliable. 32 Despite the appellants having achieved an 'appreciable degree of consistency' in their claims, the Tribunal found that they were not witnesses of truth in their claims relating to religion. The Tribunal could not be satisfied that the family church referred to in the appellants' claims was an unregistered church. In making this finding the Tribunal took into account a number of factors, including the vagueness and inconsistency on matters going to the characteristics of the Church, the evidence as to the church to which the second appellant's family belonged, DVD evidence of a very public church community to which the second appellant's family belonged, and the fact that the appellants previously misled the Tribunal. The Tribunal found that the church in question was an authorised Protestant church, whose practices were openly attended and supported by local residents in the first appellant's home town. Therefore it was not satisfied that the first appellant would face a real chance of persecution for identifying with the church. The Tribunal was not satisfied that the first appellant was genuinely or closely involved with the Church. 33 The learned Federal Magistrate agreed that the Tribunal had asked the appellants a number of questions and was sceptical of their evidence. His Honour was satisfied that the Tribunal had considered the appellants' claims at face value, even though it had somewhat grudgingly accepted the consistency of some of their evidence. His Honour stated that it was not evidence of bias that the Tribunal found that the appellants had openly admitted to misleading the first Tribunal. His Honour observed that though the hearing was conducted 'in a somewhat robust manner', this did not necessarily amount to bias. It was necessary for the Tribunal to ascertain whether or not a witness was telling the truth. In this regard his Honour examined two incidents during the Tribunal hearing brought to his attention; however he found that these comments and remarks were not so serious as to constitute evidence that would go to an apprehension of bias. His Honour concluded that the allegation of bias had not been made out by the appellants. 34 In my opinion, his Honour was correct in this regard. The findings of the Tribunal had a clear evidentiary basis. Those findings were open to it on the evidence before it and for the reasons it gave. The Tribunal gave full consideration to all of the appellants' claims and evidence. Their claims were discussed in detail with them at the hearing. The Tribunal undertook a comprehensive analysis of their evidence. 35 An examination of the Tribunal hearing transcript does not reveal any basis for the suggestion that the Tribunal did not bring an open, independent mind to the decision, or that a well-informed lay observer would perceive the Tribunal to be biased. 36 These grounds will be dismissed.

Ground 3 37 As noted by the appellants in the notice of appeal, his Honour stated [at 32] that: These grounds and submissions do, in my view, make out first, a claim of bias or apprehended bias and second, a claim that the appellants did not receive a fair hearing because of interpretation problems. 38 In the first line it appears that the word 'not' has been inadvertently omitted. It is clear, on examining the substance of the reasons, that his Honour found no evidence of bias or of an unfair hearing. For this reason the sentence should be understood as meaning the grounds and submissions do not make out any claims to actual or apprehended bias or of the appellants receiving an unfair hearing.

Grounds 4 and 5 39 The Tribunal at p 22 of its decision noted that the appellants had 'openly admitted to misleading the previously constituted Tribunal'. The Tribunal found that it was: reasonable in the circumstances to attribute a high degree of responsibility to the appellants themselves for the deceptive and misleading evidence they presented to the previously-constituted Tribunal. 40 The Tribunal then stated that it had considered the new evidence and went on with its consideration of that new evidence. 41 The learned Federal Magistrate found (at [33]) that it was open to the Tribunal to attribute a high degree of responsibility to the appellants for the deceptive and misleading evidence. In any case, his Honour found that the Tribunal had considered the appellants' new claims at face value, acknowledging that some aspects of the evidence had been largely consistent. After noting those matters, his Honour held that the Tribunal was entitled to take into account all of the conduct of the appellants during the course of the review. Therefore to the extent that the Tribunal was in some way influenced by the falsity of the previous claims, it was open to the Tribunal to be influenced in that way. 42 In my view, his Honour's approach was correct. The Tribunal has also clearly considered the new claims on their merits, and observed that the appellants had 'together and apart given largely consistent accounts of being linked to an unauthorised, underground family Protestant church in the PRC'. The Tribunal set out a detailed consideration of the appellants' new claims. The Tribunal then did refer to the appellants' previously having misled the Tribunal but only when considering the reliability of the evidence as to their church activities in Australia (p 15). The Tribunal referred to the fact that the appellants previously misled the Tribunal on a number of other factors including the vagueness and inconsistency on matters going to the characteristics of the Church, the evidence of the church to which the a second appellant's family belonged and the DVD evidence of a very public church community to which the second appellant's family belonged. 43 The appellants' claims that the Tribunal only referred to the difference between their previous claims and their new claims is not correct. The ground is not made out. Ground 6 44 The last ground raised by the appellants is that the interpretation was not accurate and the appellants were not allowed to explain their concerns with the accuracy of the interpretation at the hearing. 45 The appellants claimed that during the hearing the migration agent 'raised several times his concern about the accuracy of the interpreting, but the member did not allow him to explain his concern'. The appellants also claimed that the incorrect information was not clarified on the spot but allowed to build up, and the member therefore was asking questions based upon this wrong information. 46 By s 425 of the Act, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 the Full Court held at [37] that s 425 requires the Tribunal to extend an objectively real and meaningful invitation to the applicant to attend the Tribunal's hearing. This statutory obligation is upon the Tribunal whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. The Full Court stated [at 37] that circumstances where the invitation will not be real and meaningful include: circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. 47 In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Mansfield and Selway JJ held [at 17] 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 either the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or that errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant. 48 The interpretation before the Tribunal must be so incompetent that it effectively prevents the appellant from giving his or her evidence: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]. Further, the departure from the requisite standard of interpretation must relate to matters which were significant to the appellant's case in the Tribunal as well as to the Tribunal's decision: Perera [at 45]. While it is accepted that a perfect interpretation is never possible, it is essential that the interpreter serve as an accurate means of communication between the parties: Gaio v The Queen (1960) 104 CLR 419 at 433. The translation must be sufficiently accurate to convey the idea or concept being communicated: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [66]. As stated by Kenny J in Perera [at 25] reliable interpretation is no mere mechanical exercise but involves 'both technical skill and expert judgment'. Her Honour observed [at 26] that perfect interpretation may be impossible as there is very rarely an exact lexical correspondence between the two languages being used. 49 In the current case his Honour found [at 67] that the appellants had not set out any deficiency in the interpretation which so affected the process of the hearing that they were not given a fair hearing under s 425. His Honour noted that that they had brought the deficiencies in interpretation to the attention of the Tribunal in a post-hearing submission in reply to the s 424A letter, had provided the Tribunal with a transcript of the hearing and had drawn the Tribunal's attention to the errors and omissions in translation. His Honour was satisfied that the Tribunal had considered the corrected transcript provided by the appellants. 50 His Honour held that the appellants had not shown any significant failings in the interpreting that would have affected the decision. The deficiencies in interpretation were brought to the attention of the Tribunal, which had considered them. His Honour concluded that the appellants were not deprived of the opportunity of a fair hearing and that the Tribunal had complied with its obligations pursuant to s 425 of the Act. 51 The Tribunal noted that it had some concerns about the transcript provided by the appellants. It referred to a number of issues and accepted that some errors had occurred. The Tribunal stated that it has 'considered all the references to erroneous or incomplete translation'. Further, it stated (p 23): Notwithstanding some interpretation issues, which the [appellants] have explained and clarified in their post-hearing submission, the Tribunal finds that the [appellants] have had an opportunity to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review. 52 It appears that the Tribunal was alive to the obligations owed to the appellants. Overall it can not be said that the interpretation before the Tribunal was so incompetent that it prevented the appellants from giving evidence; Perera 92 FCR 6. Nor could it be said that any errors in interpretation were significant to the appellants' case in the Tribunal as well as to the Tribunal's decision: Perera. While not perfect, the translation should be considered to be sufficiently accurate so that it conveyed the ideas and concepts being communicated. Further, a transcript was provided to the Tribunal, and errors brought to its attention were taken into account. Unless the appellants are able to direct the Court to further inadequacies in the interpretation, they have not demonstrated that they did not receive a real and meaningful invitation, or that they have been deprived of the opportunity to give evidence pursuant to s 425. 53 The ground is not made out. 54 In my opinion, the reasoning of the Federal Magistrate and his Honour's conclusions were correct.

CONCLUSION 55 The appeal will be dismissed. The appellants are to pay the costs of the first respondent fixed at $3,998. The appellants will have nine months to pay the costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 5 March 2009 The Appellants represented themselves.

Solicitor for the First Respondent: Clayton Utz

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