SZQNC v Minister for Immigration and Citizenship

the Tribunal decision 8 The appellant appeared before the Tribunal on 11 February 2011. He was represented by a registered migration agent. At the hearing, the appellant's representative provided written submissions and documentary evidence in support of his claims. Following the hearing, the appellant's representative provided further written submissions and documentary evidence. On 16 March 2011, the Tribunal wrote to the appellant, via his representative, inviting him to provide information relating to his claims. The appellant's representative responded on 7 April 2011, with further submissions and country information. The appellant attended a further hearing before the Tribunal on 10 June 2011. The Tribunal made its decision on 7 July 2011, to affirm the delegate's decision. 9 Before the Tribunal, the appellant claimed to be a member of an organisation that helped North Koreans. The appellant stated that the situation in China was very strict because the Chinese government did not accept refugees from North Korea and because many Chinese who had a Korean background were the subject of discrimination. 10 The Tribunal questioned the appellant about various aspects of his claims. Amongst other things, it asked him about the typical refugee from North Korea and the preponderance of women refugees; why it had taken him so long to apply for protection after he entered Australia; his political activities in China; and what would happen if he returned to China. 11 The Tribunal accepted that the appellant had visited North Korea in 2003; and that he was from Jilin province in China and may have had some contact with North Koreans there. The Tribunal rejected the appellant's claim that he had attended meetings, uploaded articles to the internet and helped North Korean refugees once they were in China. The Tribunal rejected his claim because of the inconsistencies that it identified in his accounts about whether he went to meetings before or after he went to North Korea, the nature of the group of people with whom he said he was involved and his role in the group, and the refugees he claimed to have assisted. In this regard too, the Tribunal referred to the appellant's inability to describe the typical refugee, the length of time between his alleged detention and his departure from China, as well as the time that elapsed before he applied for a protection visa once he arrived in Australia. 12 As a consequence, the Tribunal did not accept that the appellant was detained, as he alleged, in March 2008 and only released on the payment of money. The Tribunal noted the inconsistencies in the appellant's accounts in this regard. The Tribunal concluded by saying: In summary, the Tribunal is not satisfied that the [appellant] was involved in a group that allegedly met to assist North Koreans into China and where he expressed political views and uploaded articles, nor that he was detained, nor that he and his family were monitored. 13 In relation to the appellant's claim that Chinese Koreans faced emotional, economic and cultural problems, the Tribunal found that the appellant's failure to seek recognition as a refugee until more than 14 months after his arrival in Australia did not indicate that he would face serious harm for any of those reasons if he returned to China. Further, emotional, economic and cultural problems did not amount to "serious harm" within the meaning of s 91R(2) of the Migration Act 1958 (Cth). Accordingly, the Tribunal was not satisfied that the appellant had suffered harm or would suffer serious harm if he returned to China. The Tribunal affirmed the delegate's decision that the appellant was not someone to whom Australia owed protection obligations. 14 The appellant applied for judicial review in the Federal Magistrates Court.

the federal magistrates court 15 In the Federal Magistrates Court, the appellant relied on three grounds in support of his review application. They were as follows: 1. I believe the Refugee Review Tribunal failed to provide me with a Korean interpreter with Chinese background who can understand my dialect for which I had requested. 2. I believe the Tribunal failed to consider my evidence for which I firmly believe is true. 3. I believe the Tribunal failed to give me a fair treatment. 16 Before considering these grounds, the learned Federal Magistrate stated that inquiries had revealed that interpreters with a Chinese Korean background were "rare, if not non-existent": see SZQNC v Minister for Immigration and Citizenship [2012] FMCA 190 at [20]. 17 His Honour gave thorough consideration to the interpreter ground. As his Honour said (at [27]) that "[t]he applicant is entitled to a fair and meaningful opportunity to present his evidence and arguments in relation to issues arising in the review"; and, in some circumstances, the absence of an appropriate interpreter could deprive an applicant of this opportunity. His Honour relied on Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ("Appellant P119/2002") at [17], as providing an appropriate test. 18 Relying on this test, his Honour rejected the inadequacy of interpreter ground upon the basis, first, that there was no evidence that showed any inadequacy or deficiency in the interpretation at the Tribunal hearing. Secondly, there was nothing in the Tribunal's account to justify the proposition that the appellant was prevented from presenting his evidence; the Tribunal was alert to the appellant's concern that he might not understand the "Korean interpreter"; and the Tribunal rejected the appellant's claims that he was unable to understand the interpreter. 19 Moreover, the Federal Magistrate noted that: (1) the Tribunal's rejection of the appellant's factual claims was based on factors that were independent of the alleged interpretational deficiencies; (2) although the appellant continued to be represented up until the time of the Tribunal's decision, there was no further complaint made to the Tribunal about the standard of interpretation; and (3) the matters that the appellant raised before the Federal Magistrate did not reveal a level of interpretation that was so inadequate as to have deprived the appellant of a fair and meaningful opportunity to present his case. Accordingly, the Federal Magistrate held that the interpreter ground was not established. 20 The Federal Magistrate also held that the second ground failed because, when examined, it sought in substance to challenge the findings of fact made by the Tribunal and therefore disclosed no jurisdictional error. That is, this ground in fact sought to have the court engage in a merits review of the Tribunal's decision - a task that the court could not undertake. 21 Finally, his Honour rejected the third ground, which disclosed no failure to comply with the relevant statutory and regulatory requirements with regard to the conduct of the decision-making process. Accordingly, his Honour dismissed the appellant's review application. The appellant appeals against this judgment.

GROUNDS OF APPEAL 22 The first ground of appeal against the judgment of the Federal Magistrate effectively repeats the allegation regarding the inadequacy of the interpreter provided for the Tribunal hearing. In Appellant P119/2002 at [17] and [18], Mansfield and Selway JJ said: The claimed obligation upon the Tribunal under s 425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented on by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6 [27] (Singh); Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Perera). In its written submissions the respondent, after referring to these cases, submitted 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: 1. the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or 2. errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant. The respondent's acknowledgment in those terms seems to reflect the views of the Court in Singh (at 6 [27]) and in Perera (at 22 [38]-[41]) as to the first proposition and in Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18] as to the second. … This acknowledgment provides a useful basis for testing the appellant's argument. 23 On this appeal, the first respondent accepted that the test set out in their Honour's judgment in Appellant P119/2002 was appropriate for assessing whether the appellant had been deprived of a fair and meaningful opportunity to present his case by reason of inadequate interpreting. In this case too, this test provides a practical guide. 24 As noted already, his Honour adopted a similar approach. No error is shown in this or any other respect in his Honour's approach to the interpreter ground. There was, as his Honour said, no evidence that might establish any deficiency in the interpreting at the Tribunal hearing that might amount to jurisdictional error. His Honour recognised that "some latitude … may be allowed to unrepresented applicants in cases of this type"; and noted that the applicant had been "offered access to, and participated in, the Court's 'RRT Legal Advice Scheme' where he had the opportunity to address these deficiencies in the presentation of his case": see SZQNC v Minister for Immigration and Citizenship [2012] FMCA 190 at [30] - [31]. Having regard to the circumstances set out in his Honour's reasons at [32] - [34], his Honour concluded (at [35]) that: In all, the applicant has had the opportunity to obtain advice about how to go about putting evidence before the Court. He has not done so." 25 In the absence of evidence to support the appellant's allegation as to the deficiencies in interpretation, there can be no appellable error in the Federal Magistrate's ruling that the relevant ground was not made out. 26 Notwithstanding this, before his Honour and on appeal, the appellant pointed to a number of alleged deficiencies in the interpretation of his evidence. The appellant submitted that: (a) "I said [that] I met the group of the refugees for the first time in 2004, but the interpreter interpreted that I met the pastor for the first time in 2004". "I said I met the pastor in July but the interpreter interpreted that I attended the meeting in July. I consistently said that I met the pastor in July 2003 and went to North Korea in August, and attended the meeting in September. But due to the interpreter's error, there were some inconsistencies in timing in my evidence … ." (b) "[T]he member asked me what church that was, but the interpreter said what church did I join. And also, I asked to find North Korean families who are separated from their families, but the interpreter said I asked to look for his cousin … cousins." (c) "I discussed the ways to help North Korean refugees and what we could do to help our people's prosperity, but the interpreter interpreted that I had helped." "I said that I found North Korean refugees and provided them with money and clothes and rice and other necessities, but the interpreter said that we didn't officially help them, and also, we couldn't receive any cash for gratitude, so instead we received rice and clothes and other necessities." (d) "[W]hen the member asked me about typical [North Korean] refugees, I described their appearances and their facial features and how they looked" and "just [their] basic conditions", because "the interpreter led me to the wrong direction". "So the member didn't understand my evidence and I didn't understand the point of the member's question". Further, "[t]he number of the North Korean refugees I helped was only limited to 14 people, and also I did that because the South Korean Red Cross helped. So I don't believe that those people are the typical North Korean refugees". (e) "[A]nother reason my application was refused was that after I was released in 2008, I stayed in China more than a year before I came to Australia. The member mentioned this towards the end of the hearing, but the interpreter didn't convey these remarks to me at all. I wasn't given any opportunity to explain about this." 27 The appellant submitted that he "couldn't pick … up [the mistakes] immediately" but noted them when he listened to the recording of the hearing. Such a recording was sent to the appellant on 11 February 2011 and on 10 June 2011, on the same days as the two hearings before the Tribunal. Although the appellant raised concerns about the interpreter's accuracy when appearing before the Tribunal, for the reasons referred to earlier, the Tribunal was satisfied that "there was no interpreter fault". There is nothing to indicate that the appellant or his then representatives made a submission after the hearings as to deficiencies in the interpretation. 28 As counsel for the first respondent noted, in his reasons for judgment, the Federal Magistrate carefully considered most of the deficiencies in interpretation that were the subject of the appellant's submissions at the hearing of the appeal: see SZQNC v Minister for Immigration and Citizenship [2012] FMCA 190 at [51]. There is no error evident in his Honour's consideration or conclusion that none of these matters "either on their own, or in the absence of evidence, reveal jurisdictional error on the part of the Tribunal arising from any claimed interpretation difficulty": see SZQNC v Minister for Immigration and Citizenship [2012] FMCA 190 at [52]. As to the fresh claims as to deficiencies in interpretation raised on this appeal, none related to matters material to the Tribunal's decision. 29 Further, as the first respondent submitted on the appeal, the Tribunal's account of the two hearings attended by the appellant showed that the appellant was able to present his case to the Tribunal in a coherent fashion. Indeed, the appellant raised two specific issues regarding the interpreting at the hearing, both of which were considered by the Tribunal in reaching its conclusion. First, the appellant suggested that inconsistencies in his evidence as to the date on which he started attending meetings were the interpreter's fault - an explanation that the Tribunal rejected. The Tribunal found that follow-up questions asked by it, and answered by the appellant, would have alerted the appellant to any error in the interpretation if one had existed. This kind of judgment is self-evidently one within the purview of the Tribunal. Secondly, the appellant suggested that an inconsistency in the names of the refugees that he had assisted was due to the interpretation of their names - an explanation that the Tribunal accepted. In consequence, the Tribunal placed no weight on the apparent inconsistency. 30 Bearing this in mind, there was nothing in the Tribunal's account of the hearing or its reasons to indicate that deficiencies in interpretation resulted in jurisdictional error. There was no other evidence or material that might have supported the appellant's case in this regard. Accordingly, the appellant's first ground must fail. 31 The second ground of appeal - that "the grounds to refuse [his] application were insufficient" - is not particularised in the appellant's notice of appeal. At the hearing of the appeal, apparently in support of this ground, the appellant specifically challenged the Tribunal's finding about the "typical refugee" from North Korea. Having regard to information before the Tribunal, however, it was open to the Tribunal to make such a finding and to reject the appellant's claims. The Tribunal was not obliged uncritically to accept the evidence and other material relied on by the appellant. In so far as this ground invites the Court to engage in impermissible merits review of the Tribunal's decision, this invitation must be declined since this is not the role of the Court. The second ground does not disclose any appellable error on the part of the Federal Magistrates Court and must also fail.

Disposition 32 Accordingly, for the reasons stated, this appeal must be dismissed, with costs. I certify that the preceding thirty-two (32) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.