SZLUS v Minister for Immigration & Citizenship

Federal Court of Australia|2008-12-18|Before: Jacobson J

Introduction and background 1 This is an appeal from orders made by Driver FM on 30 April 2008. His Honour dismissed an application to review a decision of the Refugee Review Tribunal, dated 9 November 2007. The Tribunal affirmed a decision of the Minister not to grant the appellant a protection visa. 2 In his reasons for judgment, the learned Federal Magistrate deleted references to the nature of the appellant's employment to protect his identity beyond the use of a pseudonym. This was apparently done at the appellant's request. While no such request was directed to me, I have adopted Driver FM's approach. 3 The appellant is a citizen of the People's Republic of China who arrived in Australia on 16 May 2007. He applied for a protection visa on 13 June 2007 and a delegate decided to refuse to grant the visa on 16 July 2007. The appellant applied to the Tribunal for a review of the decision of the delegate. 4 The appellant claimed to have a well-founded fear of persecution on the Convention grounds of religion and imputed political opinion. He said he was at particular risk of persecution for his religious and political beliefs because they conflicted with his role as a public sector employee. He also claimed that after his arrival in Australia as a student, the Chinese authorities suspected him of revealing State secrets, and that if he returned to China, he would be arrested, tortured and forced to confess to this crime.

Application for review in the Federal Magistrates Court 9 The appellant applied to the Federal Magistrates Court for review of the Tribunal's decision on the ground that the Tribunal had "completely misunderstood" him because of mistakes on the part of the interpreter and numerous interruptions on the part of the presiding member. In addition, the appellant claimed the Tribunal failed to give proper, genuine and realistic consideration to his application for a protection visa. The appellant provided particulars for each ground of review. 10 The learned Federal Magistrate admitted into evidence the expert opinion of Cathy Yong Xie as to the quality of interpretation at the Tribunal hearing. His Honour accepted as an exhibit part of a statement by Nigel Statham BA, PhD, BTh about the level at which the appellant can speak and understand English. His Honour also accepted, as a submission but not as evidence, the appellant's own opinion as to the errors in interpretation before the Tribunal. 11 In respect of the appellant's first ground of review, the learned Federal Magistrate first addressed the question of whether the standard of interpretation was "so inadequate that the applicant was effectively prevented from giving evidence": see SZLUS v Minister for Immigration & Citizenship [2008] FMCA 387 at [30]. His Honour concluded at [31]: …the applicant generally understood what the presiding member was saying without the assistance of the interpreter and…, except where he needed to provide a long and complex response, he was able to converse freely in English. I accept the opinion of Ms Xie…that the standard of interpretation was good. Although Ms Xie identified or conceded several errors in translation, including the transposition of "Australia" and "China" on one occasion, these were not material to the outcome. I accept that the standard was good enough for the applicant to understand the questions put to him and for his answers to be correctly represented to the presiding member. I find that the standard of interpretation at the hearing was adequate and that the applicant was not prevented from giving his evidence.[Emphasis added.]

12 The second issue that Driver FM considered in relation to the appellant's first ground of review was whether there were interpretation errors "which were so material as to cause the decision making process to miscarry": see his Honour's reasons at [30]. The learned Federal Magistrate examined the transcript, the Tribunal's reasons and the evidence before him, and concluded that while there had been interruptions, the applicant had sufficient opportunity to persuade the presiding member of the veracity of his claims. His Honour also noted the appellant had not complained during the course of the Tribunal hearing of being prevented from saying all he wished to say. Accordingly, his Honour rejected the appellant's first ground of review. 13 The second ground was that the Tribunal had failed to give proper, genuine and realistic consideration to the appellant's claims. The learned Federal Magistrate rejected this contention. He found that the adverse credibility findings were open to the Tribunal on the material before it and, if anything, were strengthened by the further evidence the appellant sought to adduce in the proceedings in the Federal Magistrates Court. His Honour found the Tribunal's reasons simply demonstrated a state of disbelief, rather than pre-judgment as the appellant claimed. 14 His Honour concluded that the Tribunal's decision was free from jurisdictional error.

The Appeal 15 The Notice of Appeal sets out three grounds of review. The appellant contends Driver FM erred: first, by accepting Ms Xie as a credible witness; second, in finding that the Appellant was understood at the Tribunal hearing; and third, by failing to find that the Tribunal "applied the wrong test" in its assessment of the genuineness of the appellant's religious beliefs. The appellant also contended that he was not given a fair opportunity to cross-examine Ms Xie in the Federal Magistrates Court. I will treat this as a separate ground of review.

The Credibility of Ms Xie 16 The appellant submitted that the Federal Magistrate should not have accepted Ms Xie as a credible witness because she conceded in cross-examination that there were interpretation errors at the Tribunal hearing. The appellant further contended Ms Xie's credibility was called into question because she did not, or could not, hear or interpret what the appellant had said before being interrupted by the presiding member. Finally, after Driver FM delivered his judgment, the appellant claimed to have discovered Ms Xie had been a NAATI level 3 certified interpreter for only 14 years, not 17 years as she specified in her affidavit. The appellant argued this demonstrated Ms Xie should not have been accepted as a credible witness. 17 The credibility of a witness is a question of fact, and appellate courts will be cautious in displacing factual findings made by a court at first instance: see further Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 and Heydon JD, Cross on Evidence (7thed, Lexis Nexis Butterworths, 2004) at [11150]. This is particularly so on issues of credibility, as the judicial officer at first instance will typically be in the best position to make these sorts of assessments. 18 At the hearing of this appeal, the appellant attempted to tender copies of emails between him and the interpreter accreditation body, NAATI (National Accreditation Authority for Translators and Interpreters Ltd). I rejected the tender of those emails, which post-dated the Federal Magistrate's decision, because in my view the ordinary rules relating to the admission of fresh evidence on the appeal were not satisfied. In particular, it was not reasonably clear that the evidence would have produced a different result in the proceeding below. 19 The appellant also sought leave on the appeal to play excerpts of the recording of the Tribunal hearing. Counsel for the Minister opposed the tender of the recordings on the basis that they were not relevant and that the appellant was attempting a collateral attack after the fact on the evidence of the expert witness which was given before the Federal Magistrate. If the appellant wished to challenge the evidence of the Minister's expert, the appropriate time for that would have been in the course of cross-examination. Counsel for the Minister noted that the appellant was free to call his own expert witness in the proceedings before the Federal Magistrates Court, but that he chose not to do so. 20 I declined to admit the evidence of the recordings of the Tribunal hearing. In particular, I accepted the submission of the Minister that in the circumstances of this appeal it was not open to the appellant to pursue a collateral attack on Ms Xie's evidence. 21 Subject to the question of the fairness of the appellant's opportunity to cross-examine Ms Xie, I can see no error in the Federal Magistrate's acceptance of her as a credible witness.

Fair opportunity to cross-examine 22 The appellant also claimed he had been denied sufficient opportunity to cross-examine Ms Xie. It is true that courts must afford parties a fair opportunity to cross-examine witnesses: see eg. R v Polley (1997) 68 SASR 227. However "fair" does not mean "unfettered"; the proper administration of justice will sometimes require cross-examination to be limited, for instance by reference to relevance. 23 I do not accept that the appellant was not given a fair opportunity to cross-examine Ms Xie. First, on the facts, it is not the case that the appellant was given only 30 minutes to cross-examine the witness, as he seems to have suggested. He commenced cross-examining Ms Xie at 2.49pm on 27 March 2008. At 3.53pm he indicated he needed another 30 minutes, and was given exactly that. In total, the appellant had just over one and a half hours to cross-examine Ms Xie. 24 These factual observations are of course not determinative of the question of whether the appellant was given sufficient opportunity to cross-examine the Minister's witness. While parties should be strongly encouraged to stick to their time estimates, the question of fairness is not a mathematical one; it requires a qualitative assessment of the way in which the judicial officer exercised his or her discretion at trial. 25 When the appellant sought further opportunity to cross-examine Ms Xie on day two of the hearing, the Federal Magistrate was required to consider the factors relevant to the exercise of his discretion, namely, the grounds of review advanced before him, the content of the witness's affidavit, the cross-examination so far, and the line of questioning the appellant was seeking to pursue. There had been extensive cross-examination on the various interruptions in the Tribunal hearing. The appellant complained that there were "many other" interruptions about which he had not had time to cross-examine the Minister's expert. His Honour responded: [Ms Xie's] evidence has been tested under cross-examination…I don't think it matters what the precise number of interruptions were, the question is whether they were material to the outcome. And certainly one can argue that the repeated interruption of an applicant when giving evidence or making arguments can result in a hearing opportunity which is not fair. I think that is what you are arguing?

The appellant then confirmed that the Federal Magistrate properly understood the point he wished to advance. 26 I do not see any error in the way the Federal Magistrate exercised his discretion. The line of questioning the appellant sought to pursue related only to the interruptions, and that issue had already been canvassed in extensive detail. His Honour accepted (as did Ms Xie) that there were interruptions at trial and, in some instances, errors in interpretation: see [22] of his Honour's reasons. The appellant did not point to any specific interruption, error, or other issue about which he was not permitted to cross-examine Ms Xie, but which would have been relevant to his Honour's assessment of whether there was a fair hearing before the Tribunal. 27 I reject the contention that the appellant was denied a fair opportunity to cross-examine Ms Xie.

Whether the appellant was understood at the Tribunal hearing 28 The appellant argued on appeal that the Federal Magistrate erred in concluding that he was properly understood at the hearing before the Tribunal. In particular, he made submissions about the inaccuracy of interpretation, and the effect of the Tribunal member interrupting both him and his interpreter. 29 This issue was the subject of evidence before the Federal Magistrate. The parties to this appeal have set out in documentary form the errors and interruptions before the Tribunal which were identified by Ms Xie and/or conceded by her in cross-examination before the Federal Magistrate. I do not propose to set them out in my reasons for judgment. 30 Counsel for the Minister conceded one error made by the Federal Magistrate at [42] of his reasons. His Honour said: …the applicant respondent to the question, "Are you baptised a Christian?", with the words, "No, not yet". Ms Xie conceded that the applicant said the words, "I need", (which were not interpreted) the applicant paused for a considerable period and it was only after that pause that the presiding member spoke again. Contrary to this statement, Counsel for the Minister agreed the evidence of Ms Xie was that there was no pause after "I need". 31 However, this concession and the other evidence of interpretation at the Tribunal hearing does not take the appellant very far. The real issue is whether, upon a consideration of the transcript, including any of the corrections which ought to be made, the appellant was deprived of a fair hearing before the Tribunal. Taking into account the documents referred to above at [29] and the Minister's concession set out at [30], I do not see any error in the Federal Magistrate's conclusion that the appellant was not deprived of a fair hearing in the Tribunal. Nor would the appellant's case be assisted by listening to the recording of the Tribunal hearing, because the appellant conceded in the course of argument before me that the recording was no different to the transcript annexed to his written submissions.

Genuineness of the appellant's religious beliefs 32 In his Notice of Appeal, the appellant claimed the Federal Magistrate erred by failing to find the Tribunal applied the wrong test in assessing the genuineness of his religious beliefs. 33 This ground of appeal was not actively pursued. However, I am satisfied that there is no substance in the appellant's submission that the Tribunal applied the wrong test in determining the genuineness (or lack thereof) of the appellant's claimed belief in Christianity. 34 The Tribunal accepted that the appellant attended a Christian church in Australia, that he was known to a senior minister of the congregation and that he attended a short-term religious education course here. Nevertheless, the Tribunal gave weight to the fact that when the appellant was asked to describe the appeal of Christianity to him, he did little more than attack the dishonesty of communism. 35 The Tribunal went on the say that it was reasonable to expect a person who attended a course of religious instruction out of a sincere interest in embracing the religion would have something more to say about what the religion said and its meaning to him. 36 It seems to me that this approach is consistent with that expressed by a Full Court in SBCC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 129 at [45]: Whatever reservations might properly be held about the exploration of a person's religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person's claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.

37 SBCC is authority for the proposition that it is permissible, as a matter of law, for the Tribunal to enquire into the genuineness of a person's claim to adhere to a particular religion. The genuineness itself will be a question of fact, and is not reviewable before the Federal Magistrates Court or this Court.

Conclusion and orders 38 For the reasons set out above, it follows that the appeal must be dismissed. I will also order that the Appellant pay the First Respondent's costs of the appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Dated: 18 December 2008 The Appellant was self-represented.

Solicitor for the Second Respondents: Australian Government Solicitor

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