FEDERAL COURT OF AUSTRALIA SZQCL on behalf of SZQCM v Minister for Immigration and Citizenship [2011] FCA 1249 Citation: SZQCL on behalf of SZQCM v Minister for Immigration and Citizenship [2011] FCA 1249 Appeal from: SZQCL on behalf of SZQCM v Minister for Immigration and Citizenship [2011] FMCA 477 Parties: SZQCL ON BEHALF OF SZQCM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1168 of 2011 Judge: FOSTER J Date of judgment: 2 November 2011 Legislation: Migration Act 1958 (Cth), s 425 Cases cited: SZQCL on behalf of SZQCM v Minister for Immigration and Citizenship [2011] FMCA 477 upheld Date of hearing: 2 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Solicitor for the Appellant: The Appellant's litigation guardian appeared on behalf of the Appellant Solicitor for the First Respondent: Mr A Markus of Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1168 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQCL ON BEHALF OF SZQCM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE OF ORDER: 2 NOVEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant's litigation guardian (SZQCL) pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1168 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQCL ON BEHALF OF SZQCM Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE: 2 NOVEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter, the appellant appeals against a judgment of a Federal Magistrate delivered on 30 June 2011 (SZQCL on behalf of SZQCM v Minister for Immigration and Citizenship [2011] FMCA 477). The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 9 March 2011, which had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) dated 3 September 2010 to refuse to grant a Protection (Class XA) Visa (protection visa) to the appellant. 2 The appellant is a citizen of China who is represented by his litigation guardian, SZQCL, who is his mother. The appellant is just over two years of age. He was born in Australia. Both his mother and father are citizens of China who have previously unsuccessfully applied for protection visas. 3 On 28 June 2010, the appellant (through his mother, SZQCL) lodged an application for a protection visa with the Department of Immigration and Citizenship. The delegate refused the application on 3 September 2010. 4 On 28 September 2010, the appellant applied to the Tribunal for a review of the delegate's decision. In the Tribunal, the appellant's parents advanced his claims for protection on his behalf. It was claimed that the appellant was born in breach of China's one child policy, as he has a brother aged 13 years living in China. It was said that he is a "black child" ie a child born in breach of China's one child policy. It was claimed that, because of this, the appellant will not be entitled to household registration with the local police. Without this registration the appellant will be excluded from social benefits. That is to say, he will not be able to enrol at a state school, to receive health care at a state funded hospital, or easily to apply for a passport or driving licence and, according to the claims, will probably suffer, discrimination in employment. It was also claimed that a fine will have to be paid by his parents because of his birth and that that fine will be substantial. The parents say that they cannot pay this fine and that, if they do not, they will be detained and punished. The appellant's mother said that she will be forcibly sterilised. The appellant's mother claimed that she had previously suffered violence at the hands of the officers of the family planning authority. Both parents are concerned for their safety and, in the event that something happens to them, for the safety of the appellant. The appellant's father claims to be a Falun Gong practitioner and his mother a Catholic in an underground church. 5 The delegate had regard to the claims advanced by the appellant's parents to the effect that he would be persecuted because he had been born in contravention of the one child policy and because of his parents' religious beliefs. The delegate also had regard to independent country information. The delegate did not accept that the appellant held a well-founded fear for a Convention reason. The delegate took into account the fact that the appellant's parents may well have to pay a social compensation fee because the appellant had been born in contravention of the one child policy. The delegate nonetheless rejected the appellant's claims. THE TRIBUNAL'S REVIEW 6 As mentioned at [4] above, on 28 September 2010, the appellant lodged an Application for Review with the Tribunal. The litigation guardian of the appellant, or someone on her behalf, completed a Response to Hearing Invitation form in which it was stated that an interpreter would be required for the Tribunal hearing and that the language involved was Mandarin. 7 The Tribunal commenced a hearing of the application on 18 November 2010. The hearing record of that occasion records that the litigation guardian had the benefit of an interpreter to assist and that that interpreter spoke the Fuqing dialect or language. 8 The hearing on 18 November 2010 was adjourned to 1 December 2010. On 22 November 2010, an additional Response to Hearing Invitation form was completed on behalf of the appellant which also specified that an interpreter was required who could speak the Mandarin language. The additional hearing took place on 1 December 2010, as scheduled. The Tribunal hearing record notes that the litigation guardian (the appellant's mother) was assisted on that occasion by an interpreter who spoke the Mandarin language. 9 On 9 March 2011, the Tribunal affirmed the decision of the delegate. The Tribunal found that it did not need to decide whether the appellant belonged to a particular social group of unregistered or black children because it found that the appellant's parents were not truthful witnesses. The Tribunal made this finding based upon a number of inconsistencies in their evidence. It is not necessary, for present purposes, to traverse the detail of those findings. 10 At [220] and [221] of its Decision Record, the Tribunal said: 220. For the sake of completeness, the Tribunal notes that in the statements lodged with the applicant's Protection visa application, it was claimed that the mother speaks "Fujian dialect" and could not understand the Mandarin interpreter used at her own Tribunal hearing. It was claimed that this led to misunderstandings between the applicant and that Tribunal. 221. The Tribunal notes that, in both responses to the hearing invitations sent for the two hearing days, it was stated that an interpreter was required in the Mandarin language. Out of caution, the Tribunal obtained a Fuqing speaking interpreter for the first hearing day who spoke Mandarin. The Tribunal used a Mandarin speaking interpreter for the second hearing day. Both the father and mother gave their evidence without difficulty and without raising any concerns to the interpreter used. In addition, the Tribunal notes that as regards the evidence she gave at her own Tribunal hearing, the mother claimed that the representative at that time told her to lie and that was the reason for inconsistencies between her evidence then and her evidence to this Tribunal. In the submission of 18 January 2011, when again given the opportunity to comment on these discrepancies, the father did not raise any issue with the interpreter used at the mother's own Tribunal hearing. The father put forward other explanations (which were not satisfactory) for these discrepancies. THE FEDERAL MAGISTRATES COURT PROCEEDING AND THE APPEAL IN THIS COURT 11 On 1 April 2011, the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application in the Federal Magistrates Court specified that the appellant (meaning, in effect, the litigation guardian) required an interpreter fluent in the Chinese/Mandarin language. 12 The grounds raised by the appellant in his Application to the Federal Magistrates Court were as follows: Attachment to Grounds of Application (Each ground on which the relief is sought and the particulars of each ground must be stated. See NOTES on last page) Orders sought by Applicant (Identify each order sought by way of final relief) 1, I disagree with Immigration and RRT's decision. They did not consider that I will be in big trouble and even a life challenged due to my parents background if I return. 2, RRT did not consider that I will be discriminated and treated as a "black child" in society due to the sanction by Family Planning enforced in our rural area without humanitarian concern, especially our family's inability to pay for social compensation fee. Our family is currently suffers with financial difficulty and hard to collect money for the fine. 3, RRT member made me upset and anxious at hearing. The member also fails to give a good consideration to what my parents explained to their previous applications in which they as victims have been taken advantages by others due to their lack of knowledge of law and language barrier. 4, RRT should give me a chance to express and reconsider our detailed explanation and the documents provided off hearing for making a fair decision. The Grounds of the Application are: 1, I am a Chinese citizen and Christian who will face the persecution and social discrimination due to Family Planning policy of China if return. 2, As Australian born child, I can not go back to China since I have strong fear to be harassed and ill-treated if return 3, I will be deplored the equal right of living and not entitled for social welfare in China if my family could not pay for the social compensation fee however this is not fair and out of my control. 4, I have great concern about being affected due to my parent's background as they are under the investigation of Chinese authority for their records. 13 It is noteworthy that none of those grounds raises non-compliance with s 425 of the Migration Act 1958 (Cth). Nonetheless, when the matter was called on before the Federal Magistrate, it became readily apparent that the litigation guardian wished to agitate the point that, at the hearing before the Tribunal, she had had difficulty communicating with the Tribunal because she was not really fluent in Mandarin and needed assistance in a dialect which has been variously described as Fuqing or Fujian. She told the Federal Magistrate that this had hampered her capacity to represent the appellant. 14 It is important to remember in all of this that the father of the appellant had attended the Tribunal hearing and was intimately involved in the presentation of the appellant's visa application and other documentation on his behalf. There has been no suggestion made at any time, either to the Federal Magistrate or to this Court, or, indeed, to the Tribunal, that the father had any difficulty in understanding the Mandarin language nor, more importantly, in understanding the proceedings in which the appellant was involved both before the Tribunal and before the Federal Magistrate. 15 The Federal Magistrate allowed the litigation guardian to give evidence directed to the subject matter of her complaint, namely the difficulty in understanding Mandarin. She was cross-examined on this point. The Federal Magistrate had the opportunity to observe the litigation guardian during the course of this evidence. 16 The Federal Magistrate gave his judgment on 30 June 2011 and dealt with all of the grounds raised by the appellant through the litigation guardian. Again, it is not necessary to traverse those grounds for present purposes because, when the present appeal was initiated in this Court, only one ground of appeal was raised. That ground is expressed as follows: 1. Refugees Review Tribunal did not fully comply with Section 425 of Migration Act. The review applicant was not given a correct language interpreter and the applicant did not present their case properly. 17 The Federal Magistrate dealt with the s 425 point at [40]–[43] of his Reasons for Judgment. At those paragraphs, the Federal Magistrate said: Breach of s.425 40. At the hearing in these proceedings the applicant's mother said that she does not speak Mandarin well and could not quite understand what was said to her by the interpreters at the two listings of the Tribunal hearing. Further, she said that the interpreter who spoke both Fuqing and Mandarin spoke Fuqing with such a strong accent she could not understand her very well. The applicant's mother's evidence was that she told the interpreter that she could not quite understand. 41. The applicant's mother was taken to her response to the Tribunal's invitation to the applicant to attend the first hearing day and acknowledged her signature on the form dated 10 November 2010 which, amongst other things, said that she needed a Mandarin interpreter. She was also shown a form dated 22 November 2010, which appeared to bear her signature and which requested a Mandarin interpreter for the second day of the Tribunal's hearing. She said that the signature on that second form did not appear to be hers. The signatures on the two documents appear to be the same although the photocopy reproductions available to the Court do not permit one to say that there are not subtle differences in the originals which would support the applicant's mother's allegation that the second document was not signed by her. 42. The interpreter provided by the Court for the purposes of its hearing spoke Mandarin and the applicant's mother acknowledged this. 43. The evidence of the applicant's mother appeared to be given in support of an unarticulated allegation that the Tribunal had denied the applicant the sort of hearing to which he was entitled under s.425 of the Act by reason of his mother's inability to communicate effectively with the Tribunal member. Although the applicant's mother's evidence was that she could not understand the interpreter well and had complained to her about this, it is difficult to be convinced of this fact in circumstances where, at least on one occasion, the applicant's mother requested a Mandarin interpreter not a Fuqing speaker for the Tribunal's hearing, gave no evidence as to the ability of the applicant's father to communicate at the Tribunal hearing and made no complaint to the Tribunal, either at its hearing or subsequently, including in response to the s.424A notice, of any difficulties in communication which she had encountered at the Tribunal hearing. Further, and most tellingly, the applicant made no complaint to the Court about the Mandarin interpreter provided to her at the hearing of this application and gave every impression of fully understanding what was interpreted to her while the interpreter gave the impression of understanding the applicant's mother. 18 In essence, the Federal Magistrate found against the assertions made by the litigation guardian concerning the question of her capacity to understand Mandarin. He did not find the litigation guardian to be a credible witness. In addition, it seems to me that there is material in the decision of the Tribunal and the hearing record of the Tribunal which tends, very strongly, to favour the conclusion which the Federal Magistrate reached. 19 Furthermore, the position of the father needs to be considered. As I have already mentioned, there is no suggestion that he was unable to understand or effectively communicate in the Mandarin language and nor was there any suggestion that he was unable to comprehend what was occurring at the Tribunal hearing. 20 In the end, the challenge in this Court is really a challenge to findings of fact made by the Federal Magistrate which, on the material before me, were perfectly open to him. This does not constitute reviewable error in this Court. 21 For these reasons, I propose to dismiss the appeal with costs. 22 There will be orders accordingly. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 7 November 2011