FEDERAL CIRCUIT COURT OF AUSTRALIA
MZAFS & ORS v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 2881	

Catchwords: 
MIGRATION – Application for review of decision of Refugee Review Tribunal – grounds asserted constituting disagreement with Tribunal findings – further criticisms of conduct of Tribunal advanced in applicant’s oral submissions – transcript of Tribunal hearings not supporting applicant’s submissions – no jurisdictional error apparent – application dismissed.	

Legislation:  
Migration Act 1958	

First Applicant:	MZAFS	

Second Applicant:	MZAFT	

Third Applicant:	MZAFU	

First Respondent:	Minister for Immigration & BORDER PROTECTION	

Second Respondent:	ADMINISTRATIVE APPEALS Tribunal	

File Number:	MLG 1138 of 2014	

Judgment of:	Judge Burchardt	

Hearing date:	25 August 2015	

Date of Last Submission:	9 September 2015	

Delivered at:	Melbourne	

Delivered on:	6 November 2015	

REPRESENTATION
The Applicants:	MZAFS In Person	

Counsel for the First Respondent:	Mr Young	

Solicitors for the Respondents:	Sparke Helmore	

ORDERS
(1)	The Application filed on 11 June 2014 is dismissed. 
(2)	The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne	
MLG 1138 of 2014
MZAFS	
First Applicant

MZAFT
Second Applicant 

mzafU
Third Applicant
And

Minister for Immigration & BORDER PROTECTION	
First Respondent

ADMINISTRATIVE APPEALS Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	By an application filed 11 June 2014, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 May 2014.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicants Protection (Class XA) visas.
2.	The “Attachment to Grounds of Application- Orders sought by Applicant” paragraphs 1-5 amount, in essence, to a number of criticisms of the findings of the Tribunal.  The “Grounds of the Application” repeating numbers 1-3 do not articulate any alleged jurisdictional error on the part of the Tribunal.  The affidavit filed in support of the application merely asserts, “WE NEED RELIGION FREEDOM AND WE FEAR TO GO BACK TO CHINA” and appends 
a copy of the Tribunal’s decision.
3.	Orders were made by Registrar Caporale on 3 September 2014 
by consent which gave the applicants an opportunity to file and serve any amended application, affidavits and written submissions.  Not surprisingly, given his lack of English and familiarity with the legal system in this country, the applicant has not done so.
4.	The first respondent filed written submissions on 18 August 2015.  
At paragraph 2, the gravamen of the submission is set out as:
	“The First Respondent submits that these grounds simply reveal 
a disagreement with the decision of the Tribunal.  They do not establish jurisdictional error in the decision of the Tribunal.”
5.	It should be noted that the second and third applicants applied for visas on the basis of being members of the first applicant’s family unit and for convenience I will refer to the first applicant as the applicant.
6.	The written submissions of the first respondent traverse the applicant’s claims and the Tribunal’s findings and continue at paragraphs 18-20 as follows:
	“18.	The First Respondent respectfully submits that none of these “grounds of review” establish jurisdictional error in the decision of the Tribunal.  
	19.	The First Respondent submits that the Tribunal comprehensively considered the applicant’s circumstances and made extensive findings of fact in relation to them.  It is not true that the Tribunal made its decision “simply by general country information”, nor, as is clear from paragraph [38] of the decision, that the Tribunal ignored any testimony by the primary applicant’s son.  
	20.	Rather, the Tribunal reached its findings in relation to the First Applicant’s claims primarily because it did not regard him as credible.  The Tribunal’s conclusion that the First Applicant’s claims were not credible is a finding of fact par excellence.  The Tribunal’s findings were open to it for the reasons it gives and an assessment of the visa applicant’s credibilities may be the crucial issue.  The Court cannot review the merits of the Tribunal’s decision, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact.”
7.	There, the matter stood, as it were, until the date of the hearing.  The applicant, who represented himself with the assistance of an interpreter, made relatively extensive oral submissions.  I would paraphrase them as follows:
8.	The applicant said he would like to explain the whole problem. He already thought it was ridiculous when he was refused a visa. At the first interview, there were four different interpreters. He said, “Your Honour can imagine such a long interview was not enough time to speak.” He said that at the second interview, with him and his wife, he was asked many questions and then he was refused. The first decision was contradicted. He made detailed preparation to argue with them. He found a lot of sentences he had never said. They had used these words to refuse the application. After that, he went to the Refugee Review Tribunal. In the end, he had found out that the Refugee Review Tribunal was even more prejudiced. The evidence that they accepted was unfair to him. The first hearing, the Tribunal member requested him to submit evidence. He did his best. It is very difficult to get the evidence, but he did it anyway. All his hard work was dismissed in one sentence.
9.	Then there was a second hearing. It was obvious there was prejudice towards him. All the Tribunal member’s gestures, the way she spoke were full of discrimination. At the first hearing, the whole family attended. The Tribunal member’s look and gestures “terminated my family”.
10.	No attention was given to his application. This application was about our life.  The Tribunal did not ask my wife or son to give evidence.  The Tribunal member asked them to go home and provide written submissions.  There was no opportunity for my wife and son to speak to her.  There was no opportunity to explain.  I did everything I could to gather evidence.  All she did was prejudice.  This is a ridiculous outcome.  China is such a big country.  There are millions of people.  My home town is a small city.  I can find my own information from some information from government website, but the Tribunal said she could not find any.  Before the hearing, I notified the Tribunal member of information she could find.  I submitted a lot of information.  In the refusal letter, this was not mentioned.  Her reasons were the same as the Departments.  I put the date wrong.  I explained the date to the Department.
11.	The applicant begged the Court to stop this impossible position.
12.	Counsel for the First Respondent was content to rely upon the written submissions.  I ordered, however, that a transcript of the hearing be served as soon as practicable and gave the parties 21 days from receipt of the transcript to present any written submissions.
13.	By email to my associate dated 9 September 2015, Marcus Priest, 
at Sparke Helmore Lawyers on behalf of the first respondent, notified the court that the first respondent did not propose to make further submissions unless the Court thought they would be of assistance.
14.	No written submissions, or other communication, have been received from the applicant.
15.	An affidavit of Mr Priest filed also on 9 September 2015 puts 
in evidence the transcript of the proceeding.
16.	The transcript has a number of interesting points.  First, at page 5 (adopting the pagination at the top of the pages of the transcript), the Tribunal member said at line 31:
	“And the application also takes in your wife and son.  Okay.  
So your wife and son aren’t coming today?
	The Interpreter:   They’re not here.  They’re in Melbourne.  
And my wife is working and my son is at school.”
17.	At page 6, the Tribunal said at line 8:
	“What happens though is the Department sends me your file, which also takes in the application for the other applicants – your wife and son.  And I’ve read all those papers on that file, and all the information on the file.  I don’t think that you’ve sent in any information in support of your application for review to the Tribunal.  But I can see here you’ve given me some other documents, and brought in your passport … Okay.  So we will talk about those photographs and that document as we go through the hearing.
	The Interpreter:   Okay.  No problem.”
18.	The Tribunal member also said on Page 6 at line 27:
	“The first thing that’s important, of course, is that we can understand each other properly.  So if you have any trouble understanding my questions or understanding the interpreter, please tell me straight away.
	The Interpreter:   Okay.
	Ms Long:   How is it with the interpreter so far?
	The Interpreter:   Okay.
	Ms Long:   No problems with the interpreter?
	The Interpreter:   So far no problems.”
19.	The Tribunal member also said on page 6 at line 46:
	“And the other thing just before we start is that if you would like a break during the hearing or the interpreter – and, interpreter, if you would like a break, please let me know.  We can have 
a short break at any time.”
20.	At page 18, the Tribunal asked the applicant why it had taken him so long to make his application for a protection visa and at page 19 the applicant replied at line 1:
	“…when I firstly arrived in Australia, the reason why I didn’t apply for protection visa was that I was still thinking about going back, because my families were there, and I – my – everything was there.  And in here, I not familiar with here.  I do not know about the language, and I do not have any friends here.” 
21.	The Tribunal pressed questions about the delay between the applicant’s decision not to return to China in September 2011 and the fact that he did not apply for the protection visa till 2 July 2012 at pages 19-20.  
22.	The interview, which started at 1.30 pm, was the subject of a break at 2.48 pm until 3.14 pm, when the hearing resumed.  I note that, having asked a number of questions, including questions about photographs provided by the applicant, the Tribunal member said at page 33 line 30:
	“Did you give any other documents to the Department in support of your claims, do you remember?
	The Interpreter:   No.
	The Tribunal Member:  And nothing else for me today that you want to give me?
	The Interpreter:   No.”
23.	The Tribunal went on to ask questions about documents on file, including the applicant’s marriage certificate, and traversed his claims of past treatment in China, together with some matters of scepticism on the Tribunal’s part. At page 37, the following exchange took place at line 4:
	“The Tribunal Member:   Okay.  I don’t want to ask any more questions, (Applicant).  I’ve got a few concerns about your claims, which I want to think about some more, and we’ve discussed those as we’ve gone through.  Is there anything else you want to tell me that I haven’t asked you about that you want to tell me?
	The Interpreter:   You only asked me whether I experienced any difficulty…
	The Tribunal Member:   Wait.  Let the interpreter finish please.  I can’t understand you otherwise.
	The Interpreter:   You – you only asked me whether 
I experienced any difficulty when leaving the country.  You didn’t – you didn’t ask me questions – further questions as to why I didn’t experience any difficulty.
	The Tribunal Member:   But you’ve told me now.  Is there anything else you want to add to what you’ve told me?”
24.	(The reference to the applicant having told them now refers, as far as I can see, to an exchange from pages 35-36 about how the applicant had left China.)
25.	It then emerged that the interpreter could not continue and the applicant’s representative, at page 37, said that the applicant was stressed.  At page 38, the Tribunal member said at line 10:
	“…I want the applicant to have a chance to tell me everything he wants.  (Applicant), it seems like you might need some more time to tell me some more things.  Well, that’s what your adviser is telling me.  Do you need more time to tell me some more things?
	The Interpreter:   Yes.”
26.	As a result, particularly because the interpreter had to leave, the matter was scheduled for a hearing in November 2013.  The transcript of the hearing on 27 November 2013 is also before the Court.
27.	It is apparent from page 42 that the second and third applicants were present and the Tribunal member asked if they were there to give evidence or just for support.  The applicant made it clear that he wished them to give evidence, notwithstanding that his son was only 13.  Both the applicant’s wife and son were affirmed.
28.	At page 43 the Tribunal member said at line 34:
	“Now, (Applicant), we talked quite a lot last time.  We had a long hearing last time, but I think at the end of the hearing you didn’t feel happy that you had been able to tell me everything you wanted to tell me.  Is that right?”
	The Interpreter: Yes.  I have a few questions.
	Tribunal member: You have a few questions.  Well, also the other applicants are here today so I will have a talk to them as well.  Okay.  They can tell whatever they want to me today.”
29.	The applicant, at the invitation of the Tribunal member, made a number of further assertions at page 45 and following.  At page 47 the applicant said at line 14:
	“The Interpreter: First, member, I’m a human being.  I fight against the Chinese authorities.  In order to give evidence in my favour, it’s very difficult.  And I took great risk and made great efforts to have those photos taken.  I wish you, member, pay attention to those photos.
	Ms Long: Well, we will talk some more about your photos if you want me to.  I will go through them with you again.”
30.	The applicant went on at page 47 to seek advice from the Tribunal member as to how to give evidence to support his claims and the Tribunal member responded that that was not the Tribunal’s responsibility.  The Tribunal member referred the applicant to his own advisor who was sitting beside him.  The applicant repeated at line 45 that he could not go back to his country and it was very hard to find evidence.  The Tribunal member said at page 48 line 1:
	“First of all I’m not going to go back to China and get evidence for you because that isn’t the role of the tribunal.  It’s not investigative.  It’s inquisitorial but not investigative.  I’m not going to go back through any channels to get evidence for you.  That’s the first thing I want to tell you so you’re not under any misapprehension I’m going to do that.  The second thing I want to ask you is what sort of evidence are you saying is in China that you can’t get?”
31.	At page 48 the applicant clarified that he was not able to get witnesses to Australia.
32.	At page 49 the Tribunal member was concerned to ensure that the applicant was not having trouble with the interpreter and he said he thought he had a problem.  The Tribunal member said at line 31:
	“Well, we can’t go on then.”
The Tribunal member went on to say at page 49 line 46:
	“Well, my view, (Applicant), is that the interpreter is fine, okay, but I want you to have the best change possible to put your case to me.  If you think, and your advisor is also saying this, that you haven’t – not getting the best chance then I will make another time and get another interpreter.  I will try and get the interpreter we had last time.”
33.	Following some discussion with the advisor it was agreed that the hearing would be adjourned.  At page 55 the Tribunal member confirmed that the applicant’s wife and son could still come and talk to the Tribunal in person.
34.	On 28 March 2014 the matter resumed again.  At page 58 the hearing resumed.  The second and third applicants were again affirmed.  At page 59 the Tribunal member said at line 32:
	“…what were those things you thought, (Applicant), that- that- that you wanted to tell me that I didn’t ask you about?
35.	On page 60 the applicant asked if he could talk to the Tribunal member privately without his wife and son present and the Tribunal member agreed and the applicant said at line 27:
	“I- I always have a feeling that this hearing will be my last hearing.  I have the feeling, and also my representative has told me, that – that a chance of me winning my application is very small.  All the materials that we have prepared and organised there is something missing in that.  We have intentionally hidden some information.
	Tribunal member: Why?
	The interpreter: Because we felt we really can’t let others know about this information because it would have a great impact on our friends or our people surrounding us.”
36.	I note that at page 61 the applicant asserted that the Tribunal member didn’t understand him thoroughly and the Tribunal member asked why.  The responses however seem, as a matter of impression, more to reveal that the applicant felt the Tribunal member was not believing him.
37.	At page 63 the applicant said through the interpreter at line 31:
	“The interpreter: The last point that I want to tell you, Member, 
I feel very grateful for meeting you and also the officer in the Department of Immigration, but I kind of having the feeling that you all have some bias against me.
	Ms Long: Why do you say I have bias? …I’ve allowed you three hearings, I am listening to everything you say, I am looking at assessing all your documents, why do you say I have bias against you?
	The interpreter: The reason why I said was that all the things 
I could rely on for my application – because I – I can’t just go back to China to get evidence – and get evidence.  I – I can’t do that and it’s impossible for me to do that.  And – and you wouldn’t believe me and in – in my situation what should I do?  Is this the fair, just – just and democratic society that western countries have always promoted?  Is – is this the – the society or the system that Chinese people have always aspire to?
	The Tribunal member: Well, you see, (Applicant), my job today or throughout the hearing is to tell you if I have any concerns about your application for exactly that reason, to give you the opportunity to respond to them and that’s what I’ve done throughout the whole hearing.  Because I have put my concerns to you about your claims and your evidence it doesn’t mean I’ve made up my mind about it.  It means I want to hear what you have to say, give you the opportunity to respond so I can consider all the evidence and make a decision.  I haven’t made my decision yet.  I don’t think – I don’t think it would be fair to you, (Applicant), to have concerns about your evidence and claims and not give you the opportunity to respond to my claims, do you?  That’s why I’m talking to you in such detail about these claims.
	The interpreter: I- I… understand.  Firstly I want to express my appreciation of that, but I still need to mention something.”
38.	I note that at pages 67-68 the Tribunal member sought to prevent the applicant from interrupting the interpreter and noted that the interpreter was having trouble interpreting and suggested the applicant stay calm and give information in small pieces.
39.	At page 68 the Tribunal member asked if the second and third applicants wanted to tell her anything.  The applicant replied at line 30:
	“I think they do not have much to tell you only their personal feelings and views.”
40.	It is apparent that the Tribunal member tried to get the wife and son back into the room. The proceeding seems to have been conducted by video link and this presented some difficulties. The transcript is by no means entirely clear, but it seems reasonably apparent that the second and third applicant did not give evidence and the first applicant pressed for this to be the case. It is not quite clear from the transcript whether the reference to the young man on page 71 at line 10 is the applicant’s son, the third applicant, and is the person who said, “…I would like to say that I know something, but my mind is in a messy state.  I don’t know how to say it.”
41.	I have set out these relatively lengthy extracts from the transcript.  The remainder of the transcript, in my view, shows the Tribunal member exploring with the applicant in a courteous and wholly unexceptionable way various aspects of this evidence with which the Tribunal member had some concerns.
42.	It is immediately apparent that the applicant’s complaints about the interpretation are misconceived. Not only did the applicant make it clear he had no problems with the first interpreter at the first hearing, but the Tribunal member ceased the second hearing because the applicant was having such difficulties. That applicant appears to be causing some difficulties with the interpreter at the third hearing because he was getting overexcited. There is simply nothing in the transcript to suggest that there were difficulties of interpretation such as to mislead the Tribunal. The assertion that there were a lot of sentences that the applicant had never said simply does not emerge from the materials.
43.	The Tribunal member made it clear to the applicant that it was not the Tribunal’s job to seek to get evidence for him and that assertion was plainly entirely proper.  It is true that the applicant referred to his difficulties in getting evidence, but in my view this does not amount to any valid criticism of the Tribunal.
44.	The applicant asserted bias against him at the Tribunal hearing, but the Tribunal member’s response to this was measured and entirely proper and in my view entirely correct.  The assertions of bias made before the Court are simply not sustained.
45.	Likewise, the Tribunal member gave the applicant every proper opportunity to have his wife and child give evidence.  They did not attend the first hearing.  They attended the second but were not reached.  At the third hearing the applicant asked that they be excluded and although it is not entirely clear whether they ever re-entered the hearing room, he certainly did not press for them to give evidence.
46.	It is sufficient to say for these purposes that the criticisms advanced by the applicant to the Court of the conduct of the Tribunal hearing are simply not sustainable on the transcript of the proceeding, and these criticisms are to be dismissed.
47.	So far as the applicant complains in this original application of the Tribunal’s findings the submission of the first respondent that these all amount to disagreements with the Tribunal’s conclusions is clearly correct.
48.	The Tribunal’s reasons are at Court Book (“CB”) 306-314.  The Tribunal set out the relevant law and the claims in evidence at CB306-308.  I note that according to paragraph 22 the Tribunal did speak to the second applicant.  The Tribunal’s description of her evidence and that of the son at CB 309, paragraph 22 is in my view entirely correct.
49.	The Tribunal’s findings and reasons are at CB309-314. The findings made seem to me to be consistent with the evidence given (in the sense that the Tribunal accurately records in my view what the applicants told the Tribunal).
50.	I do not propose to traverse the Tribunal’s findings in any detail.  They speak for themselves and constitute a comprehensive credibility finding against the applicant.  They include the delay from arrival in July 2011 before the protection visa was applied for on 16 July 2012.
51.	The Tribunal also dealt in terms with the evidence given by the second applicant, the applicant’s wife, at paragraph 37, CB313 and the third named applicant at paragraph 38.
52.	The findings made about the evidence were clearly open to the Tribunal on the materials before it.
53.	I note also that the Tribunal considered the documentation provided by the applicant.  The Tribunal expressly rejected the reliability of the document provided to the Tribunal in the light of the applicant’s non-truthfulness and likewise rejected the reliability of the photographs provided by the applicant on the same footing.
54.	It is sufficient to say as the submissions of the first respondent assert that the Tribunal’s findings were well open to it on the materials as they were presented.
55.	In all the circumstances not only was the Tribunal’s decision open to it. No jurisdictional error is identified in the applicant’s application, and none is apparent on the face of the Tribunal’s decision.
56.	Secondly, the florid criticisms advanced of the Tribunal member’s conduct with the proceeding are simply not made out by the transcript.
57.	It follows that the application will be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:  

Date:  6 November 2015