SZHFG v Minister for Immigration and Citizenship [2007] FCA 1233

FEDERAL COURT OF AUSTRALIA

SZHFG v Minister for Immigration and Citizenship [2007] FCA 1233

SZHFG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 855 OF 2007

MOORE J

10 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 855 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHFG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J DATE OF ORDER: 10 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. 3. Costs be fixed in the sum of $2500. 4. Orders 1 to 3 take effect on 4 September 2007. 5. On or before 3 September 2007, the appellant is to file and serve an affidavit setting out in full the evidence she would wish to rely on in support of her contention that she sought and was not provided with a Fuqin interpreter in the hearing before the Refugee Review Tribunal and that she was thereby denied procedural fairness and, additionally, the evidence to support the reception of this evidence in the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 855 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHFG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MOORE J

DATE: 10 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate of 9 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal of 4 August 2005. It is unnecessary to set out in detail the claims made by the appellant to the Tribunal. In essence, they were that the appellant, who is a national of the People's Republic of China, had had three children and that she had suffered harm at the hands of the authorities for having contravened China's one-child policy. The Tribunal appears to have accepted that the appellant had had three children, although it rejected at least aspects of the appellant's account of her experiences in China. 2 The Tribunal rejected the appellant's contention that she wanted more children. Nevertheless, it went on to deal with the circumstances that would arise if she returned to China and sought to have more children and in fact had them. It ultimately concluded that any response by the Chinese authorities to either her attempts to have further children or having further children would not be persecutory. 3 In the proceedings before the Federal Magistrate, five issues were raised by the appellant. The first was that the Tribunal in effect had not given her an opportunity to present her case and was biased. Much of what has been put in this appeal has focused on this question. It was a contention rejected by the Federal Magistrate. I will return to this issue shortly. The second and third grounds involved a broadly stated contention that the Tribunal had misunderstood her claims and had referred to some wrong independent information. The Federal Magistrate rejected this contention. The fourth ground was that the Tribunal's decision was not supported by a rational or logical foundation or by evidence. Again the Federal Magistrate rejected this contention. 4 The last issue addressed by the Federal Magistrate was an imprecisely particularised allegation that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth). The Federal Magistrate was unable to discern any basis upon which that argument might succeed. 5 In the notice of appeal the appellant appeared to raise two issues. First, there is a repetition of an alleged non-compliance with s 424A and secondly, there is a contention that the Tribunal's decision was ill founded, not based on any substantial evidence and contained erroneous findings of fact. These appear to be a repetition of the second, third, fourth and fifth grounds dealt with by the Federal Magistrate. Having regard to the Tribunal's reasons for decision I do not discern any error in the Federal Magistrate's consideration and rejection of each of these grounds. 6 The issue that was the primary focus of the appellant's submissions at the hearing before me concerned the conduct of the hearing before the Tribunal. In substance three complaints are made. The first is that the Tribunal only allowed the appellant to speak one sentence. As I understand the submission it was to the effect that the Tribunal did not allow the appellant to articulate her claims during the course of the hearing. The second complaint is that the appellant said to the Tribunal that she was a Fuqin speaker, did not speak Mandarin well and wished to have an interpreter who could speak the Fuqin dialect. Her complaint is that this did not occur. Thirdly, the appellant complained that the Tribunal member had made a comment at the Tribunal hearing about the appellant's handbag, which was also recorded in the Tribunal's reasons in the context of the appellant's financial circumstances. This complaint was also raised before the Federal Magistrate, as part of an allegation of bias, and was rejected. 7 As to these matters, the appellant faces the insurmountable difficulty that there was no evidence before the Federal Magistrate in relation to these issues. The Federal Magistrate recorded in his reasons that he foreshadowed this potential problem at a directions hearing before the final hearing. His Honour recorded that he drew the appellant's attention to the need for her to consider whether she should file a transcript of the Tribunal's hearing in support of her claim. The appellant did not do so. 8 If it were the fact that the appellant laboured under some disability having regard to the interpreter it is not a matter that is established by reference to any evidence. The appellant could have, for example, furnished a copy of the transcript to illustrate that questions asked through a Mandarin interpreter were not responded to in a way that suggested they were not understood. Also, it may have been possible to demonstrate that her answers were not themselves understood by the interpreter or that the answers were in some way incoherent. 9 I should observe parenthetically that the proceedings before me were conducted through a Mandarin interpreter and it is not apparent to me that the appellant has laboured under any disability. As I have perceived it, the answers she has given through the interpreter have been both immediate and generally lucid in the sense that they have been given without hesitation and the ultimate translated answer has itself been coherent and responsive. But more fundamentally there is simply no evidence before me upon which I could form a view about whether the asserted disability denied the appellant the opportunity to present her case before the Tribunal. 10 In the result the appellant has not demonstrated any basis upon which the order of the Federal Magistrate should be set aside. Accordingly, I propose to order that the appeal be dismissed and additionally that the appellant pay the first respondent's costs. Accordingly, I make the following orders: (1) The appeal be dismissed. (2) The appellant pay the first respondent's costs. (3) Costs be fixed in the sum of $2500. 11 After the above orders were pronounced, the appellant requested that she be given the opportunity to provide the transcript of the Tribunal hearing. Counsel for the Minister opposed this course. Not without some misgivings, I made the following additional orders: (4) Orders 1 to 3 take effect on 4 September 2007. (5) On or before 3 September 2007, the appellant is to file and serve an affidavit setting out in full the evidence she would wish to rely on in support of her contention that she sought and was not provided a Fuqin interpreter at the hearing before the Refugee Review Tribunal and that she was thereby denied procedural fairness and in addition the evidence to support the reception of this evidence in the appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.