FEDERAL COURT OF AUSTRALIA BKO16 v Minister for Immigration and Border Protection [No 2] [2018] FCA 1850 Appeal from: BKO16 & Anor v Minister for Immigration & Anor [2018] FCCA 600 File number: NSD 484 of 2018 Judge: ALLSOP CJ Date of judgment: 26 November 2018 Catchwords: MIGRATION – application for protection visa – claims not accepted by Administrative Appeals Tribunal – alleged interpretation error before Federal Circuit Court of Australia – additional opportunity to file evidence and submissions – no evidence particularising alleged interpretation error or how it affected primary judge's decision – no error identified Legislation: Migration Act 1958 (Cth) Cases cited: BKO16 v Minister for Immigration and Border Protection [2018] FCA 1319 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Date of hearing: 27 August 2018 Date of last submissions: 12 October 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellants: The First Appellant appeared in person on behalf of both Appellants with the assistance of an interpreter Solicitor for the Respondents: J McGovern and Z Chami of Clayton Utz ORDERS NSD 484 of 2018 BETWEEN: BKO16 First Appellant BKP16 Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: ALLSOP CJ DATE OF ORDER: 26 November 2018 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ALLSOP CJ: 1 This is an appeal against orders of the Federal Circuit Court of Australia made on 13 March 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal dated 30 June 2016, which had affirmed a decision of a delegate of the Minister on 10 March 2015 to refuse the appellants Protection (Class XA) visas. 2 The first appellant is a citizen of the People's Republic of China. She arrived in Australia in 2007 on a visitor's visa. This visa was cancelled in 2009. The first appellant remained unlawfully in Australia until 19 March 2014, when she lodged an application for protection. 3 The second appellant is her son, and was born in Australia in 2011. The first appellant was appointed by the primary judge to be litigation guardian of her son. 4 The first appellant was married in China. This marriage ended at a later point. It is unclear exactly when the divorce was finalised; written statements provided by the first appellant stated they divorced in 2001, although she indicated at the Tribunal hearing in 2016 that they had divorced about ten years prior to the hearing. 5 In a statement submitted with her protection visa application, the first appellant claimed that, under Chinese law and as farmers, the family were allowed two children. She claims she has five children in total: three daughters and two sons. Her first daughter was born on 25 August 1991. Her second daughter was born on 22 February 1993. A third daughter was born on 1 February 1994. The first appellant claims this daughter was given away without her consent. This was because the child was a girl, and was a third child contrary to family planning laws. On 1 July 2003, the first appellant had her fourth child, a son. This child was not given away, due to his gender, but he was unable to be registered as the family already had two registered children. In 2011, she gave birth to the second appellant in Australia. 6 The main claims made by the first appellant in support of the application have been that the second appellant would not be able to obtain household registration and would suffer harm as a result; that the first appellant would be liable to pay a social compensation fee that she could not afford for both breaching family planning laws and for having a child out of wedlock; that she would be discriminated against and badly treated as an unmarried single mother; that she would face violence and bad treatment from her ex-husband and his family; that she had been forced to undergo abortions, a tubal ligation, and the insertion of an IUD; and that she had mental health issues and would not be able to obtain medical treatment if returned. 7 The Tribunal upheld the delegate's decision to refuse a protection visa. The Tribunal discussed the numerous inconsistencies in the first appellant's evidence. Primarily, the Tribunal's rejection of the claims was based on country information before it. For example: The Tribunal was satisfied on the country information that the second appellant would be able to obtain registration on his return to China. Country information showed that there had been a relaxing of restrictions for obtaining household registration in Fujian province, from which the first appellant hails, and the country more generally. The Tribunal was not satisfied that even if the second appellant remained unregistered, he would lose his right to medical care, education and social welfare in China. Private schools and clinics exist which enrol and treat unregistered children for fees which are not considered excessive by Chinese standards. The Tribunal found that although country information indicated there was some level of discrimination towards single mothers in China, it also indicated that she would be able to find employment and accommodation. The Tribunal accepted on the basis of the country information that the first appellant would face a social compensation fine on her return for having a child out of wedlock and for also breaching the family planning laws. However, based on the country information, the Tribunal noted that any such fees were determined by reference to average salaries in the relevant provinces and were payable by instalments. Any such fee would therefore not cause undue hardship to the first appellant. 8 Before the Federal Circuit Court, the first appellant put forward three grounds of appeal but did not file evidence or submissions. The first ground was, as recognised by the primary judge, essentially a disagreement with the Tribunal's rejection of her claim that she was harmed by the local government and village, in respect of the claimed forced abortions and medical procedures. 9 The second ground submitted that the social compensation fee she would have to pay would not be affordable, as the fees changed depending on the area. The primary judge noted that the Tribunal's finding on this matter was based on country information, upon which it is entitled to rely. 10 The third ground submitted that the Tribunal had not carefully considered the inhuman treatment suffered by the first appellant in China in the past and to be suffered into the future. The primary judge noted that the Tribunal had clearly considered these claims and come to a conclusion unfavourable to the appellants. 11 The notice of appeal in respect of the appeal before this Court was filed on 3 April 2018. It has five grounds, as follows: 1. The first and second respondents have not carefully considered the whole circumstance of the applicant, especially in relation to the Hukou, they did not refer to the accurate document or policies from Chinese Government. 2. The first and second respondents have not thought the applicants will face serious harm when they return to their country. 3. The first and second respondents have bias against the applicants; they have not fairly assessed the application. 4. The interpreter has made several main omissions which is greatly affected the decision . 5. The main applicant has been here for substantive period that he is scared of returning home, the child does not have any welfare when he returns to China, and this fact was not considered by the first and second respondents. 12 An affidavit of the appellants also filed on 3 April 2018 stated that the appellants "intend to provide evidence by way of affidavit to set out our claims in detail once we obtain legal aid". The first appellant did not file written submissions, nor a further affidavit. 13 On 27 August 2018, the matter was listed before me for hearing. There was initially no appearance by the appellants. Given the possibility that the appellants may have been running late, Court was temporarily adjourned. The first appellant arrived during the adjournment. Before the hearing resumed, the entirety of the Minister's written submissions was translated to the first appellant. During the hearing, the first appellant appeared on behalf of both appellants and made oral submissions with the assistance of an interpreter. 14 Grounds 1, 2 and 5 are interrelated, each in respect of the delegate and Tribunal not considering the circumstances claimed and risk of serious harm allegedly faced by the appellants. These issues were not addressed in any detail in oral submissions before this Court. 15 The primary basis for the Tribunal's rejection of the appellants' claims was the country information before it. As recognised by the primary judge, it is not contentious that the country information to which the Tribunal has regard and the weight it gives to that information is a matter for the Tribunal: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29. The Tribunal's findings, based on the country information and evidence provided by the parties, were open to it. The adverse credibility findings made by the Tribunal were similarly open to it. The primary judge's reasons recognizing this involved no error. 16 Also relevant to grounds 1, 2 and 5 of the notice of appeal before this Court are the following claims: The government in her local village forced her to undergo tubal ligation. It appears this was at some point between 1992 and 1994, although the exact date is unclear. The local villagers forced her to have abortions. Hospitalisation records and admission notes from June 1997 indicate that in May 1997, the first appellant underwent an abortion. The first appellant claimed in proceedings below to have had a number of forced abortions. The Tribunal notes that one statement by the first appellant referred to five abortions. The local villagers forced her to have an IUD inserted. This appears to have happened at some point prior to 2001, although the exact date is unclear. 17 The Tribunal was not satisfied on the evidence that the first appellant was forced to undergo these procedures. The Tribunal was also not satisfied on the evidence that all of the procedures even occurred, forced or not, considering how the first appellant fell pregnant numerous times following the alleged tubal ligation and IUD insertion. There is nothing to suggest that these conclusions were not based on or open on the material before the Tribunal. 18 It is also important to note that while the fact that a person has been harmed in the past is relevant to whether or not they might be harmed in the future, "it is not determinative of that question": see BMR16 v Minister for Home Affairs [2018] FCA 1282, [26]. The evidence did not suggest that it is a necessary and foreseeable consequence of being returned to China that the first appellant will suffer harm or face a real risk of significant harm in respect of forced abortions or other medical procedures. 19 The first appellant raised an additional point in oral submissions which, although not raised below, seemed to go towards grounds 1 or 2 of the notice of appeal. The father of the second appellant is married. It appears he was married at the time of conception. The first appellant claimed that the wife of this man could therefore "sue" the first appellant if she were to return to China. It is unclear on what basis this suit would be; no evidence was provided or further submissions made on this point. Even assuming it could occur, a threat of civil litigation does not satisfy the criteria for a protection visa under the Refugee Convention or the complementary protection provisions. 20 Ground 3 is an assertion of bias by the Tribunal. There is no foundation put before this Court for any such serious allegation. It was not addressed by the first appellant in oral submissions. Nothing in the Tribunal's reasons, on its face, raises any question of inappropriate, biased or unfair consideration of the appellants' claims. 21 Ground 4 was the focus in the oral submissions of the first appellant. The interpreter translated ground 4 to the first appellant, to ensure full understanding of the following discussion. As I explained in my judgment in respect of this matter on 27 August 2018 (BKO16 v Minister for Immigration and Border Protection [2018] FCA 1319): [6] Paragraph 4 of the notice of appeal is able to be read as a complaint that the interpreter before the Administrative Appeals Tribunal was inadequate; that is certainly how the Minister took the ground. The Minister's submissions, naturally, were to the effect that this could have been dealt with below, and could have been dealt with on evidence. Notwithstanding the length of time since the end of April to today, there have been no submissions, and no evidence has been filed to support the assertion in ground 4. [7] What was put to me today by the first appellant was that the interpreter before Judge Emmett, in the Federal Circuit Court, was inadequate. Given the nature and terms of the reasons of Judge Emmett, it is not at all clear how any deficiencies in interpretation could have affected how her Honour dealt with the matter. The assertions as to an inadequacy in the interpretation before Judge Emmett were not particularly specific, but were adamant. [8] This question cannot be dealt with simply by assertion from the bar table by an appellant who has not taken the opportunity to present her case with evidence. For that reason, I propose to provide the appellant with an opportunity to file an affidavit or affidavits identifying, as far as possible, the errors in interpretation, and what part of the decision of Judge Emmett this could have affected. This will require the appellant to obtain some interpreting assistance, and focus upon what Judge Emmett's decision was, and how the interpreting could have affected it. [9] The first appellant has indicated that she had a friend who was supposed to come today to assist in this task. … 22 During the hearing on 27 August 2018, the first appellant was asked to elaborate on her claim in ground 4: HIS HONOUR: Yes. Now, what part of – could you be clear for me, please – what part of the decision is affected by the interpreter? THE INTERPRETER: For example, for one certain line, the interpreter could understand some words, but couldn't understand some other words. HIS HONOUR: Are you able to identify what part of the decision was affected by – THE INTERPRETER: I think there was an item, item 88. Anyway, he just said whatever he felt like. 23 I took this to refer to [88] of the primary judge's reasons. This paragraph commences the primary judge's assessment of the third ground of appeal in the proceedings below. Broadly, that ground submitted that the Tribunal had made its conclusion that there was no risk of cruel or inhuman treatment, punishment or discrimination "without careful consideration". At [88], the primary judge stated: In support of Ground Three, the Applicant repeated her submission in support of Ground Two, that her children would not be able to be registered on the Chinese household register. 24 It is unclear how [88] could be affected by an interpretation error such as to warrant a finding of procedural unfairness. It merely notes that the first appellant repeated her submissions from her second ground of appeal as part of her submissions on her third ground of appeal. It does not suggest her submissions on the third ground were limited to repetition of the registration argument. Indeed, the primary judge continued, from [89]-[93] of her reasons, to discuss the other claims made by the first appellant under her third ground of appeal in the proceedings below. This included factors such as risk of harm from her ex-husband and his family if she returned to China. 25 The first appellant also submitted that, during the Federal Circuit Court proceedings, the interpreter did not relay all of the information to her and did not himself understand all of what was being said in English. This is reflected in the following extract from the transcript of 27 August 2018: HIS HONOUR: Now, is there anything else you want to put in support of your appeal? THE INTERPRETER: And also, whatever the judge said to me, he didn't relay all the information to me. Some I couldn't understand. HIS HONOUR: Anything else? THE INTERPRETER: The interpreter couldn't even understand some English words. HIS HONOUR: How do you know that? How – and how do you know that? THE INTERPRETER: Let me tell you. He was sitting here; I was sitting there. Just like what we are doing – HIS HONOUR: All right. … HIS HONOUR: Now, apart from the complaint about the interpretation, Madam Appellant, what other complaints do you have about – and what other matters do you wish to put to the court in relation to – the decision of the tribunal and the decision of Judge Emmett? THE INTERPRETER: So whatever the judge said, the interpreter didn't tell me all the information, and, for example, just told me how my child could acquire a hukou in China, etcetera. HIS HONOUR: How much? THE INTERPRETER: How my child could obtain hukou, the residential registration, in China. Because something was not said, but interpreter said those information. I know that because a friend who was with me on that day – that friend is supposed to be here today, but somehow – 26 The friend referred to by the first appellant was not present in Court. 27 As I have noted, the Minister's written submissions had understandably addressed ground 4 as relating to the Tribunal proceedings. In the hearing, the solicitor for the Minister, Mr McGovern, submitted that in any case, when determining whether or not a translation error has impacted the procedural fairness afforded to the appellant before the Federal Circuit Court, this Court makes an "evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair": SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, [9]. The Minister submitted that in the absence of any evidence before this Court, the appellant cannot show that the interpretation errors occurred or that the hearing was otherwise unfair. 28 Ground 4 contains a serious allegation. It is critical for the attainment of justice that all parties in a matter can not only put their submissions to the Court but also understand everything that it put to them. However, regardless of how serious the allegation may be, the first appellant had filed no evidence in respect of it. Mere assertion is not sufficient. 29 Considering the above, in the orders made on 27 August 2018, I granted an adjournment on the condition that, on or before 24 September 2018, the first appellant file and serve any affidavits and written submissions upon which she sought to rely on any of her grounds of appeal. The orders note that any claims as to mistranslation should identify as far as possible the interpretation errors that occurred and what part of the decision of the primary judge this could have affected. The orders also noted that if it be the case that I am of the view that issues raised in the affidavits or written submissions above require the Minister's attention, my chambers would communicate with the parties as to the further conduct of the matter. If I was of the view that no issues are raised that need to be dealt with by the Minister, judgment would be delivered on the basis of the submissions as currently filed. 30 The first appellant indicated that she understood the contents of the orders. 31 My associate sent an email to the parties on 21 September 2018, reminding the appellants of the upcoming deadline for further submissions. 32 On 24 September 2018, the first appellant emailed six documents to the Registry and the respondent. None of these documents was in the form of submissions or affidavits. The documents were: (1) A statutory declaration by the first appellant that the interpreter at the Federal Circuit Court proceedings on 13 March 2018 "was not competent". The document states the first appellant is "not able to quote instances of wrong or incomplete interpretation because I don't understand English" (Document 1). (2) The original and a translation of a "certification" by a person called Jiang Baojin that the first appellant was "staying temporarily at No.32, Zhongxuan Shuishang, Taijiang District,Fuzhou City in 1995, with tem onths preganacy" (sic) when she was sent to hospital for "induced delivery". She was sent back to her original residential town in 1996 "for ligation" (Document 2). (3) The original and a translation of a "certification" by a person called Yang Wenzhu which is identical to Document 2 (Document 3). (4) The original and a translation of a "certification" by a person called Zhang Ziqing which is near-identical to Documents 2 and 3, except that the first appellant's address is given as No.2, Fuqing Lane, Taijiang District, Fuzhou City (Document 4). (5) The original and a translation of a "certification" by a person called Lin Guozhu (who purports to have been the first appellant's neighbour) that the first appellant was driven out of her original place of residence by her in-laws (Document 5). (6) What appears to be a judgment in a criminal case in China in relation to bigamy. It does not appear to concern the appellants (Document 6). 33 On 2 October 2018, my associate sent an email requesting that the first respondent file any response to the evidence of the appellants by 12 October 2018. 34 On 12 October 2018, the first respondent filed supplementary submissions, in which it was put that: The criminal case does not appear to relate to the first appellant nor her former husband. The Tribunal engaged in a detailed consideration of the appellant's claim, as noted by the primary judge, including the claims addressed in Documents 2 to 5. The submission of Documents 2 to 5 "rises no higher than an attempt by the appellants to seek impermissible merits review". None of the documents, including the statutory declaration by the first appellant, addressed the relevant issues regarding the interpretation complaint that I had made clear to the first appellant during the hearing on 27 August 2018; that is, particularisation of the interpretation error(s) that occurred and how this affected the primary judge's decision. 35 The first respondent submitted that it followed that the additional documents had no bearing on the case, and that the appeal should be dismissed with costs. 36 I agree. 37 In light of the reasons at [14]-[19] above, I would reject grounds 1, 2 and 5 of the notice of appeal. 38 Noting again that there have been no submissions as to ground 3 and nothing in the Tribunal's reasons, on its face, raises any question of inappropriate, biased or unfair consideration of the appellants' claims, I would reject ground 3 of the notice of appeal. 39 Given the lack of particularisation or evidence other than the reference to "item 88" which has been dealt with at [23]-[24] above, ground 4 does not identify any interpretation error or procedural unfairness in the proceedings before the Federal Circuit Court. Since it only refers to the proceedings before the primary judge, it also does not identify any error on behalf of the Tribunal. I would reject ground 4 of the appeal. 40 The additional documents provided by the appellants do not alter this conclusion, for three reasons. First, Document 1 reiterates the claims made before me on 27 August 2018. There is no particularisation or evidence as to the alleged incompetence of the interpreter at the Federal Circuit Court proceedings. I understand that the first appellant's English language skills are such that she cannot herself quote instances of incorrect translation. However, on 27 August, she indicated that the reason she knew about the alleged mistranslation was that her friend, present with her at the Federal Circuit Court hearing, informed her about it. She claimed the friend was meant to be with her at the hearing of the appeal. The first appellant had 28 days during which she obtained four "certifications" and translations of those "certifications". The 28 days provided her with sufficient time to deal with the alleged translation inaccuracies. Mere allegation of interpretation error (even if sworn to) is not sufficient to ground a finding that such error occurred. 41 Secondly, no legal error is shown by the documents. It is not the role of the Court, on appeal, to examine new evidence unless a proper ground for its reception is laid. None of these documents assists in any event. Documents 2, 3, 4 and 5 each go towards findings of fact that the Tribunal declined to make. They do not show any error in the Tribunal's decision not to accept those facts; a decision the Tribunal made largely on the basis of inconsistencies, both within the appellants' evidence internally and between the evidence of the appellant and country information provided about China. 42 Finally, although no submissions are made on this point, I infer from the first appellant's reference on 27 August 2018 to being "sued" by the wife of the second appellant's father that Document 6 is tendered to suggest the first appellant could be jailed for her relationship with a married Chinese man. It is unclear why, as the first appellant has not committed bigamy: she has indicated she is no longer married to her ex-husband. Even if the law did apply to her in this way and make her susceptible to imprisonment, it does not aid her claim for protection. Bigamy laws operate as a law of general application and punishment pursuant to them would not satisfy the criteria for a protection visa. 43 Ultimately, the appellants have not been able to show that there were any inadequacies in the procedure before or conclusions of either the Tribunal or the Federal Circuit Court that would ground a finding of error. The appellants were given a full opportunity of 28 days after the initial hearing before this Court within which to file any affidavits or submissions upon which they intended to rely. This was in addition to the three and a half months the appellants had to file written submissions following Registrar McCormick's orders on 30 April 2018. 44 The question arises what order should be made as to the six documents filed. Given their nature, I would have them marked for identification as MFI 1 to MFI 6 which will remain on the Court file. 45 The matter was stood over to 27 November 2018 for further hearing. On 15 October 2018, my staff had the matter relisted for delivery of judgment on 26 November 2018. On examination of the material, I do not consider that further argument is necessary. The appellants have had ample opportunity to put all relevant submissions and put forward all relevant material, orally and in writing. 46 In light of the above reasons, I would dismiss the appeal with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate: Dated: 26 November 2018