FEDERAL CIRCUIT COURT OF AUSTRALIA
ASB15 v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 2227	

Catchwords: 
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the applicant’s submissions to the Tribunal were accurately translated – bias – no jurisdictional error – application dismissed. 	

Legislation:
Migration Act 1958 (Cth), s.476	

WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2	

Applicant:	ASB15	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Administrative Appeals Tribunal	

File Number:	SYG 1284 of 2015	

Judgment of:	Judge Street	

Hearing date:	17 August 2015	

Date of Last Submission:	17 August 2015	

Delivered at:	Sydney	

Delivered on:	17 August 2015	

REPRESENTATION
The Applicant appeared in person	

Solicitors for the First Respondent:	Ms S Lloyd 
Minter Ellison	

ORDERS
(1)	The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
(2)	The amended application is dismissed.
(3)	The Applicant pay the First Respondent’s costs fixed in the amount of $6000.
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 1284 of 2015
ASB15	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Administrative Appeals Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a Constitutional writ in respect of a decision the Tribunal made on 16 April 2015, affirming a decision of the delegate not to grant the applicant a protection (class XA) visa.  The applicant arrived in Australia on a visitor visa on 1 November 2013, which was granted on 16 July 2013 and it was not until 23 January 2014 that the applicant lodged an application for protection.  The applicant was found to be a citizen of China and her claims were assessed against that country.  
2.	The applicant had lived in Tokyo for almost two years and then returned to China in 2010.  The applicant’s claims to fear of persecution were founded on her Catholic faith and her fear by reason of incidents that she alleged had occurred as a result of attending underground church activities.  The Tribunal sent the applicant an invitation to appear at the hearing by letter dated 13 March 2015, in compliance with the statutory requirements.  The applicant appeared before the Tribunal on 14 April 2015 to give evidence and present arguments and was assisted by an interpreter as well as giving part of the evidence and arguments in English.
3.	At the time the applicant applied for protection the applicant identified her language as Mandarin and did not identify any dialect.  The same position occurred in relation to the application for review and at the time of the hearing before the Tribunal, again it was noted that the applicant had the benefit of an interpreter that could speak Mandarin.  At no stage did the applicant seek to identify that there was any problem with the interpretation at the time of the hearing before the Tribunal.  
4.	No evidence has been put before this Court of any inaccuracies in the interpretation at the time of the review hearing and no explanation has been given as to why it is that there is alleged to be some problem with the interpreter because of a lack of familiarity with the Tianjin dialect, other than the assertion from the bar table that a friend from the applicant’s church has told her so.  The original application identified grounds relating to a Falun Gong practitioner, which I accept, on the affidavit evidence of the applicant, was an error by the lawyer assisting the applicant.
5.	The applicant filed an affidavit on 1 July 2015, which raised the following two grounds:
1. I think the RRT officer did not consider the risk that my safety will be threatened if return to China. Moreover, she did not consider that Chinese government is sensitive with underground church activities in China. The underground Catholic will be persecuted by the government.
	I think the officer did not consider these facts because she has a prejudice against me. Therefore, I request judge let RRT reconsider their decision.
6.	In relation to the first ground, it is clear that the Tribunal carefully addressed the applicant’s claim of fear in relation to her church activities and as a Catholic, a member of the underground church and that the Tribunal had difficulty with the applicant’s credit and rejected her claims in this regard.  There is no substance in relation to ground 1 identified in the affidavit of 1 July 2015.  Ground 2 makes a general allegation of bias.  
7.	A similar generalised allegation was made orally.  No conduct was identified by reason of which a fair-minded observer might apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  Bias must be clearly alleged and distinctly proved.  No bias has been proved in the present case.  In relation to the grounds identified in the application first filed, the applicant sought leave to file an amended application which deleted grounds 1 to 4.  
8.	To the extent that the grounds 1 to 4 should have referred to the applicant’s practice of the Catholic faith, I should note that there was no substance in any of those deleted grounds, even if construed in that fashion.  The amended grounds are as follows:
	1. 1 I am keen to self-improvement in bible stud and the religious knowledge but the level of Catholicism knowledge is not the measurements for an individual's depth of faith, and whether the individual have committed and have made contributions to the Church.
	2 The Tribunal should have considered my background and the culture difference between my home country China and Australia. I exhibited understanding of aspects of Catholicism/Christianity when asked by the delegate and the RRT. My knowledge was consistent with my claimed involvement and commitment for several years. The underground church in China may use dialect or specific words which used locally during the meeting. Thus, my answers about the Catholicism asked by the RRT might be inaccurately interpreted during the hearing, since the RRT did not offer an interpreter who was familiar with Tianjin Dialect I speaking.
	3 The Refugee Review Tribunal (RRT) unfairly ignored my well-founded fear of persecution in China. As stated in my statement, I am an underground Catholic. During the interview and the hearing, I evidenced my experience of persecution due to participate in underground church meetings. According to Amnesty International's 2014 report, although the Chinese authorities have shown an increasing tolerance for unofficial religious activities that do not challenge the authority of the state. the tolerance varies according to the location. Tianjin is one of the most highly controlled city in China. The persecution includes re-education, and a variety of extralegal coercive measures such as arbitrary arrests, forced labor, and physical torture sometimes resulting in death. These information was ignored by the RRT. (Please see attached evidences)
	4 The Tribunal made the conclusion that I had to travel to Japan to seek employment and my sole motivation for attending Church was to strengthen my protection claims based on no reasons. It was very unfair for me. Moreover, the Tribunal should have considered my background and the culture difference between my home country China and Australia. I exhibited understanding of aspects of Catholicism/Christianity when asked by the delegate and the RRT. My knowledge was consistent with my claimed involvement and commitment for several years. The underground church in China may use dialect or specific words which used locally during the meeting. Thus, my answers about the Catholicism asked by the RRT might be inaccurately interpreted during the hearing, since the RRT did not offer an interpreter who was familiar with Tianjin Dialect I speaking.
9.	In relation to ground 1 of the amended grounds, I accept the first respondent’s submission that it is clear that the Tribunal, whilst referring to the applicant’s level of knowledge of Catholicism, did not embark upon the role of an arbiter of doctrine of the kind that would be impermissible as identified in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 but rather that the Tribunal merely explored the applicant’s knowledge and understanding and her alleged commitment.
10.	It is clear that there were other inconsistencies in the applicant’s evidence that gave rise to the Tribunal finding that the applicant was not a truthful witness and those inconsistencies were carefully summarised at paras.17 to 21.  There is no substance in relation to ground 1 of the amended grounds.  
11.	In relation to ground 2 of the amended application, it is clear that the Tribunal did take into account the region from which the applicant came and this was squarely identified in the delegate’s decision and was clearly picked up by the Tribunal.  
12.	Insofar as ground 2 asserts a difficulty with the interpretation and alleges inaccuracies, no such difficulty with the interpretation has been proved.  I do not accept the assertion by the applicant that there was any inaccuracy in the translation and no evidence had been put on by the applicant to support that assertion beyond what was said from the bar table about assertions b friend from the church.  Ground 2 fails to make out any jurisdictional error.  In relation to ground 3, it is clear that the Tribunal properly evaluated whether the applicant had a well-founded fear of persecution.
13.	The grounds of the claims advanced included, in addition to a Catholic belief, fear of harm from the applicant’s husband, which was also the subject of adverse findings by the Tribunal.  Those adverse findings were clearly open on the material before the Tribunal.  Those findings cannot be said to lack an evident and intelligible justification.  It was a matter for the Tribunal to determine what weight it gave to country information and ground 3 appears to be an impermissible challenge to the merits of the matter. Ground 3 fails to make out any jurisdictional error.  In relation to ground 4, it was clearly relevant that the applicant had returned from Japan to China, in relation to the allegations of fear or persecution in China.  
14.	It was a matter for the Tribunal to weigh the significance of the applicant returning from Japan to China and there is no jurisdictional error by reason of that matter being taken into account by the Tribunal. Nor is it the case that the Tribunal failed to take into account the applicant’s background and her claims and evidence.  It is also clear that the Tribunal took into account the applicant’s alleged involvement in the church and made adverse findings of credit that were open in material before the Tribunal.  
15.	To the extent that the ground 4 alleges inaccuracy in the interpretation of the evidence given by the applicant, it has not been proved by the applicant that there was any inaccuracy.  Ground 4 fails to identify any jurisdictional error.  For the reasons given, the amended application and the interim application, including the grounds in the affidavit dated 1 July 2015, all fail to identify any jurisdictional error.  Nothing said by the applicant from the bar table advanced any ground beyond the matters addressed above and for the reasons given, nothing said by the applicant identifies any jurisdictional error.  The amended application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date: 20 August 2015