WZAUG v A Judge of the Federal Circuit Court of Australia

Grounds of application to the Federal Circuit Court 12 Detailed grounds were prepared and filed in the Federal Circuit Court by lawyers acting for the applicant. After amendment, there were three grounds. 13 Ground 3 claimed that the Tribunal made a jurisdictional error by finding that the applicant only made general comments about the existence of corruption in support of his claim and that the applicant had not indicated how that circumstance engaged the complementary protection provisions. 14 Ground 4 claimed that the Tribunal through the acts of its own officers, the Minister's Department and Serco (as operator of the detention centre) failed to accord procedural fairness to the applicant with the consequence that it was in excess of jurisdiction. Detailed particulars were provided complaining about two matters: (a) the circumstances relating to the provision of further materials and submissions after the hearing before the Tribunal; and (b) incorrect advice given to the applicant after the Tribunal's decision about being able to seek a reconsideration from the Tribunal if he felt that he was not afforded procedural fairness in relation to providing the further materials and submissions. 15 Ground 4A claimed that the Tribunal made a legally unreasonable decision and relied upon the same particulars as Ground 4. 16 As I have noted, the application to the Federal Circuit Court was out of time and it was necessary for the applicant to obtain an extension of time.

Approach to the application by Federal Circuit Court 17 In considering whether to grant an extension of time, the Federal Circuit Court considered the length of delay, the explanation for the delay, the prejudice to the Minister and the proposed appeal grounds: WZAUG v Minister for Immigration & Border Protection [2017] FCCA 771 at [24]. As to the merits, the matter was approached correctly on the basis that it was not necessary for the applicant to establish that the application will succeed. Rather, the question was whether the claim was arguable or had reasonable prospects of success. The merits of the grounds were carefully considered in detailed reasons. The court found that the grounds raised had no reasonable prospect of success. This approach is orthodox and discloses no jurisdictional error.

Grounds raised in the application to this Court 18 The application to this Court complains that the Tribunal failed to consider whether he could be subject to the death penalty if he was returned to China and the Federal Circuit Court was in error in finding that the Tribunal did consider that matter. 19 The difficulty with a complaint formulated in that way is that it is in the form of a ground of appeal. It fails to identify any alleged jurisdictional error on the part of the Federal Circuit Court. 20 The applicant's concern about the risk of him being subjected to the death penalty arises from his account of the circumstances relating to the death of a person in China. He says that the police in China have been wrongly informed that he was responsible for the death. He is concerned that he will be arrested and charged if he returns to China and he will be wrongly convicted and may be sentenced to death. His concerns include claims about corruption and the involvement of gang members. 21 The Tribunal concluded that the concerns raised did not give rise to a real risk that the applicant will face persecution for a Convention reason if he was returned to China: at [39]. 22 It then considered separately the applicant's complementary protection claim. It did not accept the claim, principally on the basis that the applicant had not been issued with an arrest warrant and it did not accept the applicant's claim that such a warrant would only be issued at the moment that the authorities in China sought to arrest him: at [41]. It also relied upon evidence presented by the applicant that showed that his father had been able to bring a successful claim in the courts in China for wrongful detention and mistreatment when he was taken in after the authorities failed to find the applicant: at [43] and Tribunal transcript, p 12. The Tribunal concluded that this showed that 'whatever corruption may exist in terms of connections to people in positions of power it would not appear to be adverse to the applicant or his family': at [43]. 23 In those circumstances, there was no basis for a claim before the Federal Circuit Court that the Tribunal did not consider whether he could be subject to the death penalty if he was returned to China. Indeed, the grounds advanced before the Federal Circuit Court, where the applicant was legally represented, were not articulated in that way. Accordingly, these matters disclose no basis for the application to this Court.

Grounds raised by the affidavit in support of the application 24 The applicant filed an affidavit in support of his application. It identified six matters. For the following reasons they disclose no basis for the application to this Court. 25 First, it is said that Google maps documents in the court book before the Federal Circuit Court Judge (described in the affidavit as the immigration Judge) were incorrect and that was not taken into account. There was a Google maps printout in the materials before me as part of the materials that were before the Tribunal. The particulars to the grounds before the Federal Circuit Court placed no significance upon any Google maps printout. There can be no error in the Court not referring to this material. 26 Second, it is said that a Chinese civil judgment was known to the Judge and it was made unreadable by the Immigration Department and Serco which was known to the Judge and still not taken into consideration. Before the Federal Circuit Court there was an affidavit filed by solicitors acting for the applicant that attached a legible copy of the civil judgment and an English translation. However, this document is not relevant to the grounds as advanced before the Federal Circuit Court. It is also said that two physical examination sheets being available in hospital reports are available in Chinese and English. It is said that they can prove that there is a risk to the applicant's life if he goes back to China. The applicant referred to these reports in his oral submissions. They appear to be advanced to support his version of events before the Tribunal. None of the grounds before the Federal Circuit Court raised a claim of a kind that concerned the availability of such materials. 27 Third, it is said that everything was planned by Serco and the Immigration Department to stop the applicant getting a visa. It was said to have been done on purpose and that the applicant was threatened, assaulted and set up. In oral submissions, the applicant attributed the failure of the Tribunal member to receive his submissions to problems with transmission by fax and the conduct of officers at the detention centre and case managers in the Minister's department. At times the submission made was that there was deliberate or purposeful conduct to stop the applicant from being able to send through documents. There was no evidence before this court or the Federal Circuit Court to support claims of that kind and the case was not put in that way to the Federal Circuit Court. Therefore, there is no foundation for those claims. I consider below the approach by the Federal Circuit Court to Grounds 4 and 4A which concern the circumstances relating to the additional materials and submissions. In that context, I deal with the evidence that was before the Federal Circuit Court. 28 Fourth, it is said that the Judge did not consider the facts concerning the appellant's requests and transmission of documents by fax in the detention centre. I take this to be a reference to the matters the subject of Grounds 4 and 4A which I deal with below. 29 Fifth, it is said that the Immigration Department put his personal details and information on the internet. However, there was no claim regarding a data breach made before the Tribunal or the Federal Circuit Court and therefore it is not a matter that arises on the present application. 30 Sixth, it is said that the Chinese government and community would not give the applicant any help and he would be subject to death penalty once he goes back and this was not taken into account. This ground was stated in the application and has already been addressed in these reasons.

Claims based on procedural fairness 31 As I have noted, before the Federal Circuit Court, two of the grounds of the application for which an extension of time was sought alleged procedural unfairness and unreasonableness because of the way the Tribunal dealt with the provision of documents to the Tribunal after its hearing and before it delivered its decision on 9 May 2014. The oral submissions made by the applicant to this Court focussed upon this aspect. 32 The heart of the complaint was that the applicant had tried to provide further submissions to the Tribunal before it made its decision but there had been problems in doing so. Speaking generally, the complaint was that the Tribunal allowed the applicant to provide further submissions after an oral hearing by video. The applicant tried to avail himself of that opportunity. He prepared a submission but it needed to be translated. He claimed that the actions of officers of the Tribunal as well as the actions of officers of the Department and Serco meant that the translated submission was not provided to the Tribunal until after the Tribunal delivered its decision. 33 In oral submissions, the applicant repeated these complaints and also said that documents that he needed to have translated were submitted to the Tribunal. This appeared to be a claim that the untranslated submission had been provided to the Tribunal, but was not considered by the Tribunal. 34 Counsel for the Minister did not object to these matters being raised despite the lack of formality. Following those submissions, I raised some aspects of those matters with counsel for the Minister and made directions for the Minister to file and serve further materials dealing with whether any jurisdictional error by the Federal Circuit Court arose from the way it dealt with matters concerning the provision of untranslated material by the applicant to the Tribunal. 35 I am grateful to the Minister for undertaking further inquiries and providing a further affidavit identifying precisely the material that was provided to the Tribunal by the migration agent acting for the applicant at the time. It is apparent from the affidavit that there was untranslated material provided to the Tribunal, but the untranslated submissions were not part of that material. Indeed, when the hearing of the matter resumed before me, the applicant accepted that the untranslated submissions were not sent to the Tribunal before it delivered its decision. Rather, his complaint was that the Tribunal made its decision before the translated additional submissions were provided and that his efforts to provide material were hampered by staff at the detention centre. 36 Accordingly, I am satisfied that the untranslated material was not provided to the Tribunal before it delivered its reasons and, for the following reasons, I am satisfied that no jurisdictional error arises from the manner in which the Federal Circuit Court dealt with the chronology of events in respect of the translation and the grounds of review that the applicant sought to advance in that court. 37 The Minister did provide further submissions dealing with the issue of provision of untranslated material to the Tribunal as well as the effect on any explanation for delay in communication with the Tribunal after its decision was made. However, in view of the factual position exposed by the additional affidavit, it is not necessary to consider those submissions and I have not had any regard to them in reaching my decision.

Evidence concerning the translated submission 38 The evidence before the Federal Circuit Court was to the following effect: (a) in the course of the hearing before the Tribunal on 30 April 2014, the applicant had lots of documents with him (Tribunal transcript, p 16, annexure A to the affidavit of Ms Chopra dated 16 October 2014); (b) the applicant was asked whether he was going to provide the documents to the Tribunal and he said that he wanted to provide documents to the Tribunal to show 'how corrupted and dangerous the Chinese society is' (Tribunal transcript, p 16); (c) the Tribunal member said that the hearing officer would 'arrange which documents you want to fax to me. And I will have a look at those documents … ' (Tribunal transcript, p 17); (d) the applicant said that the documents would 'prove how chaotic Chinese society is' (Tribunal transcript, p 17); (e) on 1 May 2014, the applicant called an officer of the Tribunal and asked how much time after the Tribunal hearing he had to provide submissions. He said he had not been told how long. He was told, amongst other things that detention centre staff may be able to assist him to fax documents if he wished to send them that way. The applicant said that he would ask for assistance to fax or download material, and might ring his agent to assist him also (Tribunal Case Note 11904783); (f) a submission was prepared by the applicant but required translation; (g) on 5 May 2014, the migration agent for the applicant wrote to the Tribunal requesting an extension to 9 May 2014 'to provide all his supporting documentations'; (h) in response, on 5 May 2014, an officer of the Tribunal telephoned the migration agent and said that the applicant had up until the close of business on 9 May to provide submissions and the agent promised they would be provided by then (Tribunal Case Note 11925147); (i) on 7 May 2014, the applicant sent a handwritten letter by fax to the Tribunal. It said 'Here is my supply [sic, supplementary] material. I'm looking for an interpreter to translate into English. I asked Serco to help me. But nobody help me. So, I need couple days to translate, when I finish I will fax you as soon as possible'. (There was no direct evidence as to what was sent with the fax); (j) on 7 May 2014, the applicant completed a request form in the detention centre and gave it to Serco staff. It said that the applicant needed some important material translated because the Tribunal officer had asked for it be provided before 8 May; (k) on 7 May 2014, a copy of a document from the applicant was sent to the applicant's migration agent by a case manager from the Minister's department (ELGT-1 to the affidavit of Ms Tattersell dated 20 June 2016) (Ms Tattersell's Affidavit); (l) on 8 May 2014, the migration agent sent to the Tribunal by fax 'additional documents in support of his merit review application'. The covering note to the fax states 'As the client specifically informed me that he would present arguments and evidence to the tribunal himself, I, hereby, solemnly declare that I did not assist the client in finding these documentations nor did I have any knowledge [of] the contents of these articles'. The documents were not the untranslated submission and the fax made no mention of the submission; (m) on 9 May 2014, the Tribunal made its decision; (n) on 12 May 2014, the Tribunal sent a notification that a decision had been made on the applicant's application and enclosed a copy of a Tribunal decision record and reasons dated 9 May 2014; (o) on 14 May 2014, a case manager informed the applicant of the decision and the applicant stated he did not think the decision was fair because there were additional documents he wanted to submit and he had submitted them to Serco on 10 May to be translated and he still had not received them back despite following up numerous times (case manager record attached to affidavit of Ms Tattersall dated 28 June 2016); (p) on 15 May 2014, a case officer made an inquiry of an officer of the Tribunal about 'standard procedure regarding applicant providing supporting documents in foreign language' (ELGT-1 to Ms Tattersall's Affidavit). I note that the Federal Circuit Court incorrectly recorded this date as 7 May 2014 in its reasons at para 8f), but correctly stated the date at para 53e) when making its key findings; (q) on 16 May 2014, the document was sent for translation by the case officer (ELGT-2 to Ms Tattersall's Affidavit); (r) thereafter an 11 page typed document in English headed 'supplementary materials' was sent by the applicant to the Tribunal. Amongst other things, it included a statement to the effect that when his father was detained for three months and was tortured and 'forced … to sign his name on a paper which you called arrest warranty. This kind of arrest warranty could never be obtained. Any such arrest warranties provided to you are forged. This is part of the law enforcement process and they would not show it to you before you were detained. There are two kinds of arrest warranties nowadays in China: one is called public arrest warranty, the other is called internal arrest warranty. Policeman who fails to keep the secret violates the law'. The submission dealt further with an explanation as to why there was no public arrest warrant for the applicant. 39 This evidence reveals two separate types of documents to be presented to the Tribunal. 40 The first was a bundle of materials that the applicant wanted to show the Tribunal at the time of the hearing. This could not be done because the hearing was by video. The Tribunal allowed steps to be taken for those documents to be provided. Some of these materials required translation. 41 The second was additional written submissions. The Tribunal had not given leave for any written submissions to be provided. However, following the hearing, there were communications with officers of the Tribunal about providing submissions and the applicant's agent (who was not at the hearing) sought and was given until 9 May 2014 to provide submissions and the agent promised to meet that deadline. 42 Based on the above evidence, the Federal Circuit Court found at para 53(e) of its reasons: i) it was confirmed on 1 May 2014, after the finalisation of the Tribunal Hearing, that the Tribunal was unable to provide the applicant with assistance to facilitate the provision of further evidence and that he may be able to seek assistance from detention centre staff or his migration agent: CB 180; ii) on 4 May 2014, the applicant submitted a request to SERCO to prepare a translation of his handwritten document: Annexure I to the affidavit of Ellen Tattersall filed 28 June 2016; iii) on 5 May 2014, the applicant, through his agent, requested and was granted an extension of time in which to provide further documents to the Tribunal by 9 May 2014: CB 181 - 182; iv) following a meeting with Ms Watson [a case manager] on 7 May 2014, Ms Watson sent by email to the Migration Agent a copy of the untranslated document per the applicant's request: Ms Tattersall 's filed 20 June 2016 Affidavit at ; page 4 v) as at 7 May 2014, the applicant was aware that the requested translation had not been completed; vi) the applicant did not, either personally or through his agent, make any further request for an extension of time to enable the translation to be performed and submitted to the Tribunal; vii) the applicant, through his agent, submitted further evidence to the Tribunal on 8 May 2014, which did not include the translation or any reference to it: CB 183-193. Nothing in the correspondence suggests that the applicant wished to submit any further evidence or requested an extension of time in which to do so; viii) it is not evident that the Tribunal made its decision prematurely, the Tribunal Decision is dated 9 May 2014 but contains no time at which the decision was made: CB 197. Accordingly, the applicant has failed to establish that the decision was made prior to the close of business on 9 May 2014 (being the deadline for the applicant's further material). In any event, the applicant did not submit any information between 8 May and his becoming aware of the decision on 14 May, and thus could not be said to have suffered any practical injustice: Annexure 2 to the affidavit of Ellen Tattersall filed 28 June 2016; and ix) although some incorrect information was provided to the applicant on 15 May 2014: Ms Tattersall's 20 June 2016 Affidavit at page 4, the applicant had been advised, on 14 May 2014, to seek judicial review of the Tribunal Decision if he believed there to be an error in the Tribunal Decision: Annexure 2 to the affidavit of Ellen Tattersall filed 28 June 2016. This information was further confirmed with the applicant on 20 May 2014 well before the period in which the applicant could lodge an application for judicial review expired: Ms Tattersall 's 20 June 2016 Affidavit at page 6. 43 All these findings were open on the evidence. They dealt with the particulars advanced to support the grounds. The Federal Circuit Court then made a within jurisdiction determination that Grounds 4 and 4A had no reasonable prospect of being made out. The Court had authority to make that assessment and there was no right of appeal in respect of any factual or legal error. 44 Before me, there was complaint about access to an interpreter. There was no suggestion that a request was made to the Tribunal for an interpreter to enable submissions to be provided. The complaint was about the actions of the Department's case manager and the actions of officers at the detention centre. 45 The fundamental obligation to provide an interpreter so as to afford an effective opportunity to a non-English speaking applicant to give evidence has long been recognised: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [21]-[22]. The obligation is an incident of the statutory requirement that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments: s 425(1)(a) of the Migration Act. In Perera, after referring to s 425(1)(a), Kenny J said that there is a requirement for a direction in such cases that the communication proceed through an interpreter and that the terms of any such direction 'extend to the whole of the hearing and are not limited to the applicant's evidence'. In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at [27]-[28], the court expressed the principle in terms of a real opportunity to give evidence and present arguments and statements to similar effect were made in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 after reviewing the cases ('the purpose of the interpretation is to enable … the applicant to give evidence and present arguments in order to present the substance of his or her case and to respond to issues raised' (at [22] per Allsop CJ) and a 'claimant must be provided with a standard of interpretation such that he is afforded a meaningful opportunity to communicate his claims, evidence and submissions to a decision-maker and a meaningful opportunity to respond to that which a decision-maker may wish to say' (at [42]-[45] per Flick J)). 46 There is jurisdictional error if an applicant is not afforded an opportunity to present arguments with the assistance of an interpreter. If the Tribunal had identified an issue on which it was appropriate to afford an unrepresented non-English speaking applicant a later opportunity to respond to issues raised then that required the applicant to be assisted by an interpreter if the applicant was to make those submissions himself. 47 However, in this case, the opportunity to make those submissions was not a matter raised by the Tribunal member. It was not sought by the applicant at the time of the hearing. Rather, to the extent that the opportunity was afforded it arose through communications with officers of the Tribunal after the hearing. Importantly, the communications with the Tribunal before it delivered its decision were with the migration agent and he promised to send submissions by 9 May 2014. The time given to make submissions was afforded to the migration agent. He provided a written response on 8 May 2014. In those circumstances, no issue arose as to the need to provide for translation. 48 I note that the response from the migration agent when providing additional documents concluded: 'As the client specifically informed me that he would present arguments and evidence to the tribunal by himself, I, hereby solemnly declare that I did not assist the client in finding these documentations nor did I have any knowledge [of] the contents of these articles'. 49 As to these matters, in respect of Ground 4, the Federal Circuit Court judge found at [56]-[57]: No further request for an extension of time beyond 9 May 2014 in which to provide submissions or documents was made by the applicant or on his behalf by the Migration Agent. With both the applicant and the Migration Agent having provided further submissions, nothing in the correspondence and discussions referred to above indicates, or could be taken as indicating, that the applicant had further submissions to provide or that he had further documents to be translated. The applicant placed reliance on the terms of the 8 May 2014 Letter as indicating to the Tribunal that the applicant had, or might have had, further submissions or documents to provide to the Tribunal. The difficulty with this submission is twofold. Firstly, it is not what the 8 May 2014 Letter says, and it cannot be inferred from the fact that the applicant said to the Migration Agent that he wished to present arguments and evidence himself, that there were necessarily further submissions or documents to be provided to the Tribunal, save as indicated in the Applicant's 7 May 2014 Letter. Secondly, the fact that the applicant found the documents provided to the Tribunal by the Migration Agent does not of itself indicate that further submissions or documents might be provided by the applicant. The Applicant's 7 May 2014 Letter does not advance the applicant's case further in this context. As indicated above: see [55] above, its content is consistent with the applicant's self-imposed 9 May 2014 deadline for the provision of further submissions. Thus when on 9 May 2014 no further submissions or documents were provided by the applicant to the Tribunal, the Tribunal published the Tribunal Decision. 50 Those findings were open to his Honour who went on to consider the particulars about erroneous advice given to the applicant as to what he could do after the Tribunal's decision was made and stated his reasoning in the following terms at [59]: It is also not to the point that the applicant may have been given erroneous advice on 15 May 2014 that he had 28 days in which to make an application to the Registrar of the Tribunal to further extend time. By that time the extension of time granted by the Tribunal to provide further submissions or documents had expired and the Tribunal Decision had been made. The fact that the applicant's Departmental case officer had been given that advice on 7 May 2014 and did not pass it on to the applicant until 15 May 2014 does not constitute a denial of procedural fairness by the Tribunal, because what the applicant knew as at 7 May 2014 was that he had until 9 May 2014 to provide further submissions or documents to the Tribunal, and the applicant took no steps at that time, or until 9 May 2014, to enquire about or to seek a further extension of time. 51 On the basis of that reasoning, it was concluded that Ground 4 had no reasonable prospects: at [61]. The same matters were relied upon in concluding that Ground 4A had no reasonable prospects: at [67]-[68]. Those conclusions were open and were within jurisdiction. 52 Where a Tribunal has provided time for a party to make further submissions, it would be procedurally unfair for the Tribunal to proceed to make its decision without waiting until the date for provision of those submissions had passed. The practical injustice that would follow from the deviation from the statement of intent as to the procedure to be followed lies in the unfair denial of the opportunity to provide those submissions, at least where it is demonstrated that the person would have taken up the opportunity: Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326. In this case, on the findings of the Federal Circuit Court, the time for filing submissions was 9 May 2014 and no communication with the Tribunal suggested that more time was sought or that further submissions were being translated to be provided. Findings as to those matters were within the jurisdiction of the Federal Circuit Court. 53 Even if there had been factual or legal errors as to any of the above matters that would not have been sufficient to establish jurisdictional error by the Federal Circuit Court. This is because of the extent of the Court's jurisdiction as a Court of record as described at the outset of these reasons.

Conclusion 54 No jurisdictional error has been demonstrated in the decision of the Federal Circuit Court and the application must be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.