FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZNVK v MINISTER FOR IMMIGRATION & ANOR	[2009] FMCA 1123	

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – allegation of bias not proved – errors in translation at Tribunal not proved – Tribunal did not fail to consider evidence.	

Migration Act 1958, ss.424A, 474	

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
SZJBD v Minister for Immigration & Citizenship (2009) 179 FCR 109	

Applicant:	SZNVK	

First Respondent:	Minister for Immigration & CITIZENSHIP	

Second Respondent:	REFUGEE REVIEW TRIBUNAL	

File Number:	SYG 1936 of 2009	

Judgment of:	Cameron FM	

Hearing date:	12 November 2009	

Date of Last Submission:	12 November 2009	

Delivered at:	Sydney	

Delivered on:	12 November 2009	

REPRESENTATION
The Applicant appeared in person.		

Solicitors for the Respondents:	DLA Phillips Fox 	

ORDERS
(1)	The application be dismissed.
(2)	The applicant pay the first respondent’s costs fixed in the amount of $3,200.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Sydney	
SYG 1936 of 2009
SZNVK	
Applicant

And

Minister for Immigration & CITIZENSHIP	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	The applicant is a citizen of China. He alleges that while in China he was involved in anti-government activities which led to him being detained and mistreated in a forced labour site, including by being subjected to beatings. 
2.	The applicant claims to fear persecution in China because of his 
anti-government activities.
3.	After his arrival in Australia on 23 November 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 19 March 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
4.	In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 
5.	For the reasons which follow, the application will be dismissed.
Background facts
6.	The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 140 – 148). 
Primary Application
7.	The applicant made the following claims in his visa application:
a)	he arrived in Australia on a false passport issued in another person’s name and which stated a date of birth of
8 August 1970;
b)	he provided his real name and said that his actual date of birth was 23 February 1967;
c)	in February 2007 he began work on a construction project for an Olympics Games venue in Qingdao. When the project finished the workers were not paid bonuses which they had been promised;
d)	on 5 May 2008 he, his uncle and another worker lodged a protest letter with the Qingdao Government. No response was received so they decided to organise a protest group to deliver a further letter to the government. The applicant was arrested because he had been named as the organiser of the demonstration, which had caused a bad social impact before the Olympic Games;
e)	he, his uncle, and the other worker already referred to in these reasons were taken to Qingdao City No.1 Detention Centre where the applicant was beaten and subjected to electric shocks until he signed a confession;
f)	on 1 July 2008 he was transferred to a construction site for forced labour;
g)	on 29 September 2008 the applicant escaped from the construction site because his uncle bribed a security guard with the assistance of that uncle’s wife;
h)	he went to Shenzhen where he stayed with a relative who was going to help him leave the country. The relative found out that the applicant’s name was on a list of people forbidden to leave the country so he obtained a passport under another name;
i)	since his departure the police have been looking for him and his wife and siblings have been investigated; and
j)	he had not previously held a passport or applied for a visa to Australia.
8.	The applicant submitted the following documents with his visa application:
a)	a document entitled “Certificate of Being Released from Detention” (“Certificate of Release”) issued by Qingdao Municipality Public Security Bureau Security Detention House, dated 29 September 2009, stating that the applicant had been detained from 10 June 2008 to 29 September 2008;
b)	a document entitled “Summons” issued by the Qingdao Municipality Public Security Bureau, dated 8 October 2008, summonsing the applicant for interrogation on 9 October 2008 as he was suspected of committing the crime of organising and planning anti-government activities; and
c)	a document entitled “Summons” issued by the Qingdao Municipality Public Security Bureau, dated 9 October 2008, summonsing the applicant for interrogation on 13 October 2008, again on the basis that he was suspected of committing the crime of organising and planning anti-government activities.
9.	At an interview with the Minister’s delegate on 11 March 2009 the applicant claimed that he had bribed the authorities to obtain the Certificate of Release.
Review Application
10.	At the Tribunal hearing held on 4 June 2009 the applicant made the following additional claims:
a)	he was released from the forced labour site on 
29 September 2008;
b)	his uncle’s wife paid the bribe to secure his release. She did not seek the release of her husband because he was responsible as the sub-contractor;
c)	the bribe paid by his uncle’s wife was money that belonged to his family and that had been borrowed by his uncle and his uncle’s wife;
d)	his uncle was still at the forced labour site;
e)	the Deputy Bureau Chief gave him the Certificate of Release but told him to remain in Qingdao. However, he immediately left for Shenzhen;
f)	he never returned to his family home in Fuqing after his release;
g)	the Certificate of Release was with him when he went to Shenzhen but he later stated that he gave it to his uncle’s wife in Qingdao before he went to Shenzhen and she took it back to his family home;
h)	two summonses were issued following his release – one was delivered to his previous address in Qingdao and when it was discovered that he was not there, another was sent to Fuqing. His family sent it to him;
i)	when he became aware that summonses had been issued he decided to leave China; and
j)	his relative obtained a passport in the applicant’s real name for him to travel to Australia. The relative later got a passport in a different name because he found out that the applicant could not use the correct passport to travel as he had a record of anti-government activities.
11.	The applicant submitted an article from the internet dated 4 December 2007, with a translation, concerning corrupt conduct of the former Section Chief of Fuqing Municipality Public Security Bureau.
12.	The Tribunal sent a s.424A notice to the applicant on 11 June 2009 inviting him to comment on the following:
a)	evidence that he had had a previous passport issued in his real name;
b)	evidence concerning two student guardian visa applications lodged in his name; and
c)	the circumstances in which he left the forced labour site.
13.	On 25 June 2009 the Tribunal received the applicant’s response to the s.424A notice. In that response the applicant provided the following explanations: 
a)	the former president of the Fuqing Public Security Bureau had stolen and misused the applicant’s personal information to create the passport issued in 2002 and to lodge the two student guardian visa applications;
b)	he did not give oral evidence that a relative had obtained a passport in his name in late 2008 and suggested that parts of the interpretation were inaccurate;
c)	the summonses were subsequently issued either because the Deputy President realised that the applicant had in fact been detained for serious offences and, impliedly, should not have been released, or because the Public Security Bureau needed to know whether the applicant had complied with the conditions of his release; and
d)	he gave the certificate of release to his uncle’s wife in Qingdao.
The Tribunal’s decision and reasons
14.	After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)	the Tribunal found that there were significant inconsistencies in the applicant’s evidence regarding his circumstances in China and that these inconsistencies could only be explained on the basis that the applicant was not telling the truth. This finding was based on the following matters:
i)	in his protection visa application the applicant had stated that he escaped from the forced labour site but at the Tribunal hearing he stated that he had been temporarily released after paying a bribe;
ii)	although the applicant claimed to have never held a passport and to have never previously applied for any visas, a passport in his name had been issued in 2002 and he had applied for a student guardian visa on two earlier occasions;
iii)	the internet article provided in support of the applicant’s claim that the Fuqing Public Security Bureau Deputy Chief had fraudulently produced the passport and visa applications did not contain information regarding the kind of corrupt conduct which the applicant claimed the Deputy Chief was involved in – namely stealing personal information and using it to create false documents; and
iv)	when the Tribunal told him that a valid passport already existed in his name, and despite the clear recording of him saying so at the Tribunal hearing, the applicant denied having given evidence to the Tribunal that a passport had been issued in his name in late 2008;
b)	the Tribunal found that the three documents submitted with the applicant’s visa application were fraudulently obtained. This finding was based on the following matters:
i)	the applicant himself clearly stated that the Certificate of Release was issued on payment of a bribe, and thus its contents were given no weight as a reflection of the applicant’s true circumstances;
ii)	his claim that the summonses were issued because he was mistakenly released from prison was considered to be “inherently implausible”;
iii)	the applicant provided inconsistent evidence about the whereabouts of the Certificate of Release; and
iv)	country information indicated that any type of official document can be fraudulently obtained in China.
15.	The Tribunal’s conclusions were encapsulated in para.76 of its decision, where it said:
	Given the deficiencies in the applicant’s evidence which are set out above, which concern crucial aspects of his claims, the Tribunal finds that he is not a truthful witness. The Tribunal considers that the applicant has significantly altered his account of events over time, seeking to overcome the difficulties identified by the delegate and the Tribunal. It considers that the discrepancies and inconsistencies can only be explained by a conclusion that he is not telling the truth. The Tribunal finds that the applicant’s account of the events leading to his departure from the PRC cannot be accepted. The Tribunal is confident in finding that the applicant was not detained at a labour work site as he claims and that he was not wanted or being pursued by the authorities when he left China. There is no credible evidence before the Tribunal to support a finding that the applicant remains of interest to the authorities, or that he would be of adverse interest, or face a real chance of persecution if he returned. Given his overall lack of credibility, the Tribunal does not accept that the applicant was involved in anti-government protests at all. The Tribunal is therefore not satisfied that the applicant has a well founded fear of Convention persecution in the PRC for the reasons he claims, or for any other reason arising from the credible evidence before it.  
Proceedings in this Court
16.	The grounds of the application commencing these proceedings were pleaded as follows:
	(1)	The Tribunal has made completely incorrect findings. I have never accepted that there were significant inconsistencies between the written account of my circumstance given in my protection visa application, in the information I provided at the interview with the delegate, and in my oral evidence at the Tribunal hearing. I have never ever accepted that my testimony appeared at times to be evasive, and to shift and change.
	(2)	The Tribunal’s decision has included a reasonable apprehension of bias.	
17.	At the hearing today, the applicant raised further matters, namely:
a)	there were errors in the translation at the Tribunal hearing;
b)	the Tribunal did not consider the document reproduced at 
CB 112 and 113 denouncing the former chief of Fuqing Municipality Public Security Bureau;  and
c)	issues concerning when the three documents (the Certificate of Release and the two summonses) were submitted in support of the applicant’s claim. 
First ground: (a) Tribunal made incorrect findings 
18.	The essence of the first ground of the application is that the Tribunal made incorrect factual findings. As stated earlier in these reasons, this Court in judicial review proceedings cannot undertake a review of the merits of the applicant’s visa application. That means it is not entitled to reconsider the factual findings reached by the Tribunal except when considering a jurisdictional fact, which is not the matter in issue here. The Court’s role is limited to determining whether the Tribunal applied correct procedures and correctly applied the law when reaching its decision. For these reasons, the ground as pleaded does not disclose any basis upon which the Tribunal’s decision might be set aside.
First ground: (b) failure to consider s.424A response
19.	The first allegation is particularised by reference to the applicant’s response to the Tribunal’s s.424A notice. In those particulars the applicant states that there was no evidence that the Tribunal had “fairly and properly, considered my response” to the s.424A notice. Therefore, although the particulars to the first allegation appear to have been set out in order to support the allegation that the Tribunal’s decision was incorrect in its factual conclusions, it can also be seen to raise a further ground of review based on the Tribunal’s failure to consider all the material which was before it.
20.	The applicant’s s.424A response, as reproduced in his application commencing these proceedings, is divided into three parts. The first deals with his passport, the second deals with his Certificate of Release and summonses and the third deals with alleged errors in translation at the Tribunal hearing. In relation to the applicant’s passport, his s.424A reply deals with his allegation that the former president of the Fuqing Public Security Bureau had stolen and misused personal data and that the applicant was sure that he was one of that person’s victims. It is clear from paras.65 and 66 of the Tribunal’s decision that the Tribunal considered this allegation not only in the form in which it was made during the course of the hearing but also in the form in which it was made in the s.424A response.
21.	The second part of the s.424A response deals with the Certificate of Release and summonses and draws attention to the applicant’s disparate claims to have either fled or escaped from detention and to having been released as the result of a bribe. The circumstances in which the applicant allegedly left detention were a matter of considerable concern to the Tribunal, as its decision record demonstrates. A review of that decision, and in particular paras.72, 73 and 74, discloses that the allegations raised by the applicant in his s.424A response were considered by the Tribunal.
22.	The third part of the applicant’s s.424A response alleges that there were errors in the translation of his evidence at the Tribunal hearing. In that response the applicant reproduces a portion of what he apparently claims to be a transcription of the evidence given at the Tribunal together with some commentary on the interpretation. The Tribunal specifically considered this assertion in paras.67 and 68 of its decision record.
23.	It is apparent, therefore, that the Tribunal did consider the matters which the applicant raised in his s.424A response. Moreover, I am satisfied that it did so fairly and properly and that it gave that information the serious attention which it deserved. 
24.	For these reasons, the first ground pleaded in the application is not made out. 
Bias
25.	The applicant alleges apprehended bias on the part of the Tribunal, stating that;
a)	it failed to fairly and properly consider his explanations concerning the passport issued in his true name in 2002 and his two former applications for student guardian visas; and 
b)	it failed to give any substantial reasons to explain why it found that the applicant’s documentary evidence was fraudulently obtained.  
26.	As considered earlier in respect of the first ground pleaded in the application, I am satisfied that the Tribunal did not fail to consider fairly or properly the applicant’s evidence that his identity details had been stolen by the Public Security Bureau office and used to fraudulently produce a passport and visa applications. So much is apparent from paras.65 and 66 of the Tribunal’s decision. In relation to the documents, para.75 of the Tribunal’s decision demonstrates that the Tribunal did give sufficient reasons for its conclusions in relation to them. Whether those reasons were “substantial” as the applicant alleges is not the point. The question is whether the Tribunal gave sufficient reasons for the conclusions it reached and, in my view, it did. 
27.	The second ground pleaded in the application fails on the facts particularised as its foundation. Therefore I conclude that a fair minded and informed lay person reasonably informed of the facts alleged to give rise to an apprehension of bias would not have apprehended the Tribunal might not have been bringing an open mind to the determination of the matters it was required to consider: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Errors in translation
28.	On 14 September 2009, when this matter was listed for directions, it was ordered, amongst other things, that:
	…
	3.		The applicant file and serve any affidavit containing additional evidence relied upon, and any amended application setting out each ground of review relied upon and complete particulars of that ground, by 5 October 2009.
	4.		Apart from the Court Book, all evidence relied upon by a party must be in the form of an affidavit.  Any party wishing to rely on the evidence of a Refugee Review Tribunal hearing must file and serve a copy of a transcript of that hearing annexed to an affidavit.
	…
29.	Today the applicant sought to tender a sound recording of the Tribunal hearing relating to his review. This had not been foreshadowed to the Minister and unsurprisingly the Minister’s representative, being caught by surprise, objected to that course.  
30.	Having regard to the High Court’s recent decision in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, the Court was concerned that the applicant had raised this issue on the day of the hearing, rather than having complied with the orders which had been made on 14 September 2009. However, to be balanced against these considerations are the facts that the applicant is a foreign national, presumably unfamiliar with the court processes in this country, and unable to speak English. Moreover, in SZJBD v Minister for Immigration & Citizenship (2009) 179 FCR 109, the Full Court of the Federal Court made it clear that if an applicant wished to rely on a sound recording of a Tribunal hearing, he or she should be permitted to do so notwithstanding that he or she has not sought to tender a translation of the foreign language portions of that hearing, or that the federal magistrate is unable to speak the language in which the applicant’s evidence at the Tribunal was given. In SZJBD at [62] Buchanan J quoted what Siopis J had said in an earlier stage of the proceedings:
	Further, it was no answer for the Federal Magistrate to say that he would derive no assistance from the tape because he did not understand Mandarin. It may have been possible for the Federal Magistrate at the very least to discern from the tone of the interchanges whether there was substance to the appellant’s complaint. In any event, the Federal Magistrate could have used the services of an interpreter.
31.	As Buchanan J observed at [63], one of the elements upon which the judge who heard the first appeal concluded that it was necessary to listen to the tape was that it was relevant to an evaluation of the criticisms made by that applicant about the standard of interpreting and the conduct of the interpreter at the Tribunal hearing.  
32.	Today the applicant presented the difficult question of whether the matter should proceed today as contemplated by the directions made on 14 September 2009. To obtain a transcript of the hearing or to bring an interpreter to court to perform a live translation of the Tribunal would have required an adjournment, the applicant not having brought an interpreter to give evidence in his case.  
33.	The question became whether the application to tender the recording should be rejected, on the basis that the applicant should have complied with the orders made on 14 September 2009, or the recording received into evidence, played in court and the services of the court appointed interpreter, who was assisting the applicant in court today, be used to provide any translations that were necessary. Given the applicant’s particular circumstances and the philosophy of this Court to deal with matters in as expeditious and inexpensive way as possible, and assuming, although without seeking confirmation, that the applicant would not have been in a financial position to retain his own interpreter, the course was taken that the sound recording was admitted and the Court’s interpreter sworn to give evidence as to any errors or inaccuracies in the translation services provided at the Tribunal hearing.  
34.	While this was undoubtedly an unorthodox approach, it appeared to be the most appropriate course to adopt in all the circumstances. The applicant’s complaint concerning the interpreter services at the Tribunal hearing was limited to two passages of that hearing.  The applicant was able to identify precisely which portions of the recording he wished the Court to listen to. Those two passages were played, and the Court appointed interpreter made observations on the accuracy of the interpretation at the Tribunal. 
35.	In respect of one portion, apart from commenting that, with the exception of one omission, his interpretation would not have been much different from the Tribunal’s interpreter, the Court’s interpreter confirmed the accuracy of the Tribunal’s interpreter’s translations. The omission that was made by the Tribunal interpreter was in a passage dealing with the applicant’s evidence that he had not, contrary to earlier evidence of the Tribunal, sought or obtained a Chinese passport in 2008.  The Tribunal interpreter had omitted to translate:
	So I did not apply for the passport.  
I am satisfied that in all respects other than that omission, the translation before the Tribunal was not inadequate in the fashion alleged by the applicant. 
36.	That part of the Tribunal hearing to which the applicant wished the Court to listen was concerned with his denials that he had sought or obtained a passport in 2008. However, the significance of any shortcomings in that part of the translation has to be seen in the context that it was related to the applicant’s earlier statement at the Tribunal hearing that he had indeed had such a passport issued. Even taking into account the omission by the Tribunal interpreter, I am satisfied that the applicant’s evidence was sufficiently clearly translated to the Tribunal that it could have been in no doubt that, at that point of the Tribunal hearing, the applicant was denying that he had sought or obtained a passport in 2008. For these reasons, I am not satisfied that any inadequacies in the interpreter services provided at the Tribunal hearing had any effect on the Tribunal’s understanding of the evidence the applicant gave at the relevant stage of the hearing.  
37.	As to the second portion of the hearing tape to which the Court was taken, the Court’s interpreter confirmed that there were no errors in the translations at the Tribunal hearing.  
38.	Thus there is no basis to conclude that the applicant was denied a proper hearing before the Tribunal by reason of inadequate interpreter services.
Failure to consider denunciation document 
39.	At CB 112 and 113 appears the English translation of a document which contains a denunciation of the former chief of the Fuqing Municipality Public Security Bureau.  This is a translation of a document in Chinese script, reproduced at CB 108 to 111, which was tendered by the applicant to the Tribunal at its hearing. That document is specifically referred to in para.65 of the Tribunal’s decision and the Tribunal went on to consider that document at para.66 of its decision.  
40.	The allegation that the Tribunal did not consider this document fails on the facts.
Submission of the three documents – the Certificate of Release and the two summonses
41.	The applicant made an unclear submission today concerning these documents, which appeared to be based on a concern that the Tribunal doubted the documents or had concerns with them because they had or had not been tendered at a particular time during the visa application process. Paragraph 75 of the Tribunal’s decision makes it clear that the Tribunal’s view of those documents had nothing to do with when they were produced or adduced by the applicant. It was the documents themselves, the circumstances in which they had been issued and the manner in which the applicant dealt with them during his time in China, which led the Tribunal to reject their veracity.  
42.	Consequently, this ground does not disclose a basis upon which the Tribunal’s decision might be set aside.
Conclusion
43.	The applicant has not demonstrated that the Tribunal’s decision was affected by jurisdictional error.  
44.	As a consequence, the application will be dismissed.  
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  4 December 2009