ACX15 v Minister for Immigration
[2017] FCCA 1392
•28 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACX15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1392 |
| Catchwords: INTEGERS OF CLAIM – What that means – extensive review of the authorities on “claim” and “integer”. INTERPRETER – Applicant alleged interpreter incompetent to perform task at Tribunal hearing – no evidence that interpreter converted Tribunal hearing into something that was unreal or unfair to the applicant. APPLICATION OF CURRENT LAW – Consideration of SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 currently on appeal in the High Court with judgment pending – law applicable as at today’s date. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 414 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’ (2014) 5 Victorian Judicial Scholarship |
| Applicant: | ACX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 443 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 2 May 2017 |
| Date of Last Submission: | 16 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2017 |
REPRESENTATION
| Applicant in person |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The amended application filed on 30 October 2015 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 443 of 2015
| ACX15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By initiating application filed on 6 March 2015 the applicant sought judicial review of a decision made by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) on
7 February 2015. The Tribunal affirmed the decision made by the Minister’s delegate on 8 October 2013 to refuse to grant the applicant a Protection (Class XA) visa.
The applicant relied on four grounds for his application for judicial review. They were as follows, verbatim –
1. The Tribunal fell in to jurisdictional error by not assessing the applicant’s integer claims cumulatively.
2. The Tribunal fell in to jurisdictional error by not assessing the applicant’s claims against his religion being a Christian.
3. The Tribunal has breached section 420 (1) and part 7,
Division 4 of the Migration Act by employing an interpreter not competent to the task and thereby fell into jurisdictional error.
4. The Tribunal has not afforded the applicant the procedural fairness.[1]
[1] Amended application filed 30 October 2015.
When this case was argued on 2 May 2017, both sides relied
(for different reasons) on the decision of the Full Court of the
Federal Court of Australia in SZTAL v Minister for Immigration and Border Protection[2] (“SZTAL”). Argument before the Full Court of the High Court of Australia in the appeal from the Full Court’s decision in that case was heard on 5 April 2017 following which the High Court reserved its decision. The solicitor for the Minister contended before me that I should decide this case based on the prevailing authority of the Full Court of the Federal Court in SZTAL. In written submissions dated 12 April 2017, a week after the High Court reserved its decision in SZTAL, the applicant urged me to wait for the High Court to hand down its decision.
[2] [2016] FCAFC 69.
I am required to apply the law as it presently stands which I have done.
Synopsis
For the reasons that follow, in my judgment this application for judicial review should be dismissed.
Relevant factual setting
The applicant was born in Colombo, Sri Lanka in 1984 and was raised in the Western province. He fled Sri Lanka illegally by boat in
June 2012. He arrived on Christmas Island on 15 July 2012 as an unauthorised boat arrival and was detained upon arrival. On
7 November 2012 he submitted his application for a protection visa.
Before the Tribunal the applicant gave evidence with the assistance of an interpreter in the Tamil and English languages. A transcript of the proceeding was filed, verified by the applicant and converted into a supplementary court book, which I read. The role of the interpreter was called into question by ground 3 of the judicial review application so I read the transcript of the proceeding before the Tribunal with an eye keenly focused on the actual translating as was recorded in the transcript.
Prior to attending the interview with the Tribunal member on
6 February 2015, written submissions dated 4 February 2015 were provided on behalf of the applicant by his solicitors. Those written submissions ran for 56 numbered paragraphs and incorporated three appendices on fact and law. They were very comprehensive. During the Tribunal hearing the applicant was represented by an adviser.
Ground 1
Under this ground the applicant contended that the Tribunal fell into jurisdictional error “by not assessing the applicant’s integer claims cumulatively” (verbatim).
In his written submissions the applicant contended as follows –
The Tribunal failed to consider the applicant’s claim cumulatively and singularly. It has not assessed the applicant’s integer claims. It was imperative on the Tribunal to assess the applicant’s claim cumulatively.[3]
[3] The applicant’s outline of written submission filed 12 April 2017 at p.2.
As Mortimer J pointed out in MZANX v Minister for Immigration and Border Protection,[4] it falls to this court on the hearing of an application for judicial review to identify jurisdictional error, if there be any.
[4] [2017] FCA 307 at [71].
Ground 1 failed to identify anything specific when asserting that the Tribunal “has not assessed the applicant’s integer claims”.
A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether,
by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[5] proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).[6]
[5] (2003) 216 CLR 473 at [1].
[6] Ibid.
In the context of a protection visa, Gleeson CJ said the arguments and evidence of the applicant and the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.[7]
[7] (2003) 216 CLR 473 at [39].
The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov v Minister for Immigration and Multicultural Affairs,[8] and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in NABE v Minister for Immigration and Multicultural and Indigenous Affairs
(No.2)[9] (“NABE”). Other authorities at single judge and Full Court level in the Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s “claim”.By way of illustration in Htun v Minister for Immigration and Border Protection[10] Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414 of the
Migration Act 1958(Cth) (“the Act”) that the Tribunal considers ‘the claims’ of the applicant stating –
The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.[11]
[8] (2003) 77 ALJR 1088 at [24].
[9] (2004) 144 FCR 1, 22 at [61] and [68].
[10] (2001) 194 ALR 244.
[11] (2001) 194 ALR 244 at [42].
The Tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs[12] as well as by the Full Court of the Federal Court of Australia
(Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs.[13]
[12] (1998) 94 FCR 28, 63.
[13] (1999) 90 FCR 287, 293-294.
But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the Tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs.[14] As the
Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.[15] Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[14] (2003) 129 FCR 137 at [19].
[15] (2004) 144 FCR 1 at [58].
It is true that the Tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs,[16] Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.[17]
[16] (2003) 199 ALR 364.
[17] (2003) 199 ALR 364 at [17].
The settled position nowadays is that stated in NABE.[18] The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation,
the Tribunal is not required to consider criteria for an application never made.
[18] (2004) 144 FCR 1 at [61].
To my way of thinking, it would place an impossible burden on the Tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[19] (French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.[20] Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the Tribunal.
[19] [2003] FCAFC 184 at [46].
[20] (2014) 5 Victorian Judicial Scholarship.
Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –
a)a “substantial, clearly articulated argument relying upon established facts”;[21]
b)a claim or claims and its or their component integers;[22]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[23]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[24] and
e)not an application or claim never made.[25]
[21] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24].
[22] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244.
[23] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
[24] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[25] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
As Robertson J held in Minister for Immigration and Citizenship v SZRKT[26](“SZRKT”) –
Although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim.[27]
[26] (2013) 212 FCR 99.
[27] (2013) 212 FCR 99 at [98].
Once the “claim” that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS.[28]
[28] (2010) 243 CLR 164 at [7].
In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well-founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[29] (“Abebe”) and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS.[30]
[29] (1999) 197 CLR 510 at [187].
[30] (2013) 230 FCR 431, 444 at [38].
More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v SZSWB[31] held that “[m]oreover, the claim must emerge clearly from the materials”.[32]
[31] [2014] FCAFC 106.
[32] [2014] FCAFC 106 at [33].
Having identified each “claim” and “integer of claim” the Tribunal was then required to give active intelligent consideration to each claim or integer of claim so identified. The question in this case was whether the Tribunal correctly did both of those things.
In my view it did. Let me explain.
The Tribunal identified the matters recorded immediately below as representing or being relevant to the applicant’s claims. They were –
a)in 2006 the applicant was taken into police custody, questioned and released after the applicant’s father produced a letter (a matter that accorded with country information relating to the treatment of Tamils prior to the cessation of the war);
b)
in 2007 the applicant was allegedly stopped by security forces, questioned then released after production of a letter from a
grama sevaka;
c)the fact of the applicant being released after a short period in 2006 and 2007 indicated that the authorities did not have a continuing interest in him and that he lived without incident until departing Sri Lanka in 2010;
d)the applicant’s main issues were with a man identified as “Ravi”; and
e)the applicant had little involvement with the Liberation Tigers of Tamil Eelam (“LTTE”).
The Tribunal made a collection of factual findings. Relevantly paraphrased they were as follows –
a)the applicant did not face a real chance of harm from Ravi or Ravi’s associates;
b)having regard to the applicant’s stated intention of not wanting to be involved in politics, there was not a real chance that the applicant would face any harm based on his actual or imputed political opinion or membership of a particular social group in relation to the United National Party;
c)having regard to country information the applicant did not face a real chance of persecution by reason of his Tamil ethnicity;
d)in relation to the applicant having to pay bribes, the small amounts paid and the relative infrequency of them did not constitute serious or significant harm;
e)the Tribunal did not accept that the authorities would regard the applicant, if he were to returned to Sri Lanka, as a supporter of the LTTE or a person with links to the LTTE with the consequence that there was not a real chance of the applicant being imputed with a political opinion as a supporter of the LTTE be it now or in the reasonably foreseeable future and any questioning of him would not constitute serious or significant harm;
f)the applicant did not face a real chance of persecution if returned to Sri Lanka as a failed asylum seeker;
g)as to the applicant’s claims about the consequences of his illegal departure under the Immigrant and Emigrants Act (Sri Lanka), they did not amount to persecution for a Convention reason and the Tribunal was not satisfied that any questioning, arrest or poor jail conditions in remand amounted to systematic and discriminatory conduct;
h)
nor did short-term detention, questioning or the imposition of a fine amount to significant harm under s.36(2A) of the Act,
nor did it involve intentionally inflicting severe physical or mental pain or suffering that could reasonably be regarded as cruel or inhuman in nature; and
i)the Tribunal found that the applicant would not face a real chance or real risk of mistreatment on account of any suspected involvement with the LTTE, nor did he face a real chance of persecution from authorities on account of his illegal departure nor did he face a real risk of significant harm for those reasons.
The Tribunal found that the applicant did not face a real chance of persecution for a Convention reason or a real risk of significant harm.
The Tribunal said the applicant failed to satisfy ss.36(2)(a) and 36(2)(aa) of the Act.
The solicitor for the Minister submitted that all claims actually made were addressed as were those claims, while not expressly made, which arose squarely on or were apparent from the face of the material before the Tribunal.
In debate on 2 May 2017 I raised with the Minister’s solicitor whether the Tribunal’s credibility findings were maintainable. I pointed out that nowhere in its reasons did the Tribunal address its credit findings by reference to the existing learning then on point about
credibility findings. I mentioned that the Tribunal’s decision was dated 7 February 2015 and that the present most authoritative pronouncement on credibility findings was the decision of the Full Court of the
Federal Court of Australia in CQG15 v Minister for Immigration and Border Protection.[33] I said that even in 2015 when the Tribunal decided this case, other authority binding on the Tribunal required the Tribunal to address credibility issues in a particular way.
[33] [2016] FCAFC 146.
[35] (2009) 181 FCR 113.
In MZARD & Anor v Minister for Immigration and Border Protection[34] I reviewed those authorities, especially the decisions in SZRKT,
SZLGP v Minister for Immigration and Citizenship[35]and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.[36]
The Tribunal mentioned none of those cases.
[36] [2013] FCAFC 80.
[34] [2017] FCCA 343.
In further written submissions filed 16 May 2017 the Minister’s solicitor submitted that ultimately credibility findings were matters of fact that were within the Tribunal’s jurisdiction. The Minister submitted that jurisdictional error might, in some circumstances, negate credit findings including where –
a)it resulted in a failure to afford procedural fairness;
b)it led to the Tribunal making a finding without any logical or probative basis; and
c)there was legal unreasonableness.
The Minister cautioned me from adding a fourth category, being
Flick J’s formulation of jurisdictional error in SZVAP v Minister for Immigration and Border Protection[37] (“SZVAP”). I decline to adopt the Minister’s submissions that the Full Court’s reference to Flick J’s decision in SZVAP is “some (unspecified) fourth ground of jurisdictional error”.[38] Any judicial pronouncement to that effect is the preserve of a Full Court, not an intermediate federal judge of an intermediate court such as me.
[37] (2015) 233 FCR 451.
[38] First respondent’s further written submissions filed 16 May 2017, p.5 at [16].
It is unnecessary to say more about the Tribunal’s credit findings.
The applicant did not put the point at issue. The Minister’s further written submission addressed the concerns I raised at the hearing.
To my mind, the applicant failed to make good ground 1. In my view the Tribunal did in fact consider the applicant’s claims as well as all integers of the claims.
Ground 2
The applicant asserted that the Tribunal “fell in to jurisdictional error by not assessing the applicant’s claims against his religion being a Christian” (verbatim).
The Minister contended that no claim of any description was advanced by the applicant about his Christian religion –
a)
in the statutory declaration made by the applicant on
25 October 2012;
b)in written submissions to the Tribunal dated 4 February 2015; or
c)in the applicant’s viva voce evidence to the Tribunal.
In paragraph 6 of his statutory declaration the applicant solemnly and sincerely declared that his religion was Christian. That was all he said on point.
The applicant’s submissions said nothing about his Christianity as a basis for a claim.
In the applicant’s viva voce evidence he said nothing about his Christianity as a basis for his claim.
The Minister submitted it was up to the applicant to provide his evidence and arguments in sufficient detail as to enable the
decision-maker to establish the relevant facts. That much is beyond debate, as was held in Minister for Immigration and Multicultural Affairs v Lay Lat.[39] Further, the Minister submitted that the Minister was not required to make out the applicant’s case for him, citing Abebe.
[39] (2006) 151 FCR 214.
The applicant referred to paragraph 6 of his statutory declaration contending that “the Tribunal has completely ignored” his claims “arising from his religion of being a Christian”.[40] I do not agree. No claim was made that remotely touched upon the applicant’s Christianity.
[40] The applicant’s outline of written submission filed 12 April 2017 at p.2.
The Tribunal made no error in not addressing the point. Ground 2 must be dismissed.
Ground 3
This third ground related to the interpreter. The applicant asserted that the interpreter was not competent. He said the Tribunal fell into jurisdictional error because, so he argued, it employed an interpreter not competent to the task. His ground 3 gave no particulars of the alleged incompetence of the interpreter. However, in written submissions the applicant said that in many instances the interpreter was not interpreting in the first person and instead was making comments about the applicant’s evidence.
Before turning to each of the nine matters on which the applicant relied as details of this ground, it is useful to record some legal principles about interpreters and allegedly defective services provided by interpreters.
In Appellant P199/2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[41] the Full Court of the Federal Court of Australia held as follows –
[I]n order for the appellant to succeed in an argument that the Tribunal had failed to comply with s425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a)the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.[42]
[41] [2003] FCAFC 230.
[42] [2003] FCAFC 230 at [17].
The Minister submitted that no evidence was adduced on this point.
Next, in BZAID v Minister for Immigration and Border Protection[43] (“BZAID”) Edelman J (then of the Federal Court of Australia but now of the High Court of Australia) held that –
[43] [2016] FCA 508.
The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established … The relevant principles are summarised below:
(1)interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2)whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3)in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4)where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5)where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6)where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7)however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.[44]
[44] [2016] FCA 508 at [52].
The Minister submitted that the applicant had not provided sufficient evidence, in an admissible form, that the interpretation by the professional interpreter was either not competent or failed to convey the substance of what was said so as to enable the applicant to be provided with a genuine opportunity to give evidence and present arguments to the Tribunal.[45]
[45] First respondent’s written submissions filed 26 April 2017, p.8 at [18].
Nowhere in the transcript of the hearing before the Tribunal was there any reference to the applicant protesting in any way about the interpretation work performed by the interpreter.
Given that the test was described in BZAID as whether the hearing can be described as real and fair, the nine matters cited by the applicant did not characterise the hearing as unreal or unfair. It is necessary to trawl through each of the nine matters.
The first related to page 8 at line 2 where the interpreter was recorded as saying “[h]e’s giving in real detail. I’m going to say what he says”.
To my mind, the interpreter in that passage showed that he intended to give a detailed verbatim account of all the applicant said. No complaint could be made of that.
The next related to page 12 at line 20 which revealed a short exchange in which the interpreter was clarifying the question, something to the benefit of all concerned. No complaint could be made of that.
The next related to page 19 at line 2 where the interpreter was recorded as saying “[h]e means Australia I think”. While not a strict
word-by-word translation, the interpreter gave his version of the answer previously given. It took the form of a clarification. Had the applicant perceived disadvantage, he could have protested. In any event, the question was peripherally relevant, relating to whether a friend of the applicant still lived in Chilaw to which the applicant answered in the negative, stating that the friend came with the applicant to which the interpreter added “[h]e means Australia I think”. Nothing in that addition remotely smacked of unreality or unfairness.The next related to page 20 at line 20 in which the applicant contended that the words recorded were not said at all. It is true, the words “I have some fear” were not said by the applicant on pages 19 and 20 of the transcript. But on page 19 the applicant said he “faced threats” and that “the opposition … used to intimidate us”. The interpreter seemed to then wrap those concepts into the phrase “I have some fear”.
Then, the Tribunal member piggybacked on that paraphrasing by asking whether that fear was on account of the past events, to which the applicant agreed. So even if the interpreter’s paraphrasing was not a word-perfect translation, whatever may have been any unfairness from that paraphrasing (none that I detected) was immediately corrected by the Tribunal member following on with a question to which the applicant gave an affirmative answer. No complaint could be made of that.The next related to the entries on page 22 at line 8 of the transcript in which the interpreter was recorded as having said “[h]e’s thinking”. That was an obvious reference to the applicant pausing and not answering, appearing to be contemplating something. It scarcely needed the interpreter to point out that the comment could have easily been made by the Tribunal member or anyone else present, for that matter. It did not alter in any way what the applicant said immediately prior to or immediately subsequent to those two words. No complaint could be made of that.
The next related to the entries on page 25 at line 19 of the transcript where the interpreter was reported as having said “[h]e says he is from the West of the country”. True, the interpreter volunteered that comment. Reference to North-West province appeared slightly earlier on page 23 the transcript. At no stage did the applicant protest about the interpreter’s observation. The interpreter’s comment did not cause the hearing to be unreal or unfair by reason of the interpreter’s comment. No complaint can be legitimately made of the interpreter’s comment on this issue.
Next, complaint was made about the entry on page 28 at lines 28 and 30 where the interpreter was recorded as having said “[h]e wants to consult the lawyer”. While again not a verbatim translation,
the interpreter conveyed the applicant’s wishes. Far from that converting the hearing into something that was unreal or unfair,
it conveyed the applicant’s wishes leading to a short break.
No complaint could be made about that.
As to the comment on page 29 at line 17, in my view nothing critical could be said of that either.
Next, complaint was made about the entries on page 32 at line 27 where the interpreter was recorded as having said “[h]e said, yeah this happens all the time, it’s – it’s very common there”. Again, that was a paraphrasing of the applicant’s own evidence about ongoing harassment and his ten prior occasions when he bribed police. It was appropriate for the interpreter to paraphrase the information given by the applicant. In addition, immediately after the interpreter spoke the words recorded in that passage, the member asked whether the applicant wished to say anything else. Had the applicant been keen to complain that the interpreting work was defective in any way, he had ample opportunity to respond to the member’s invitation. Rather than doing that, the applicant recited his fear of Ravi.
To my way of thinking, there is real force in the Minister’s submission that nothing in the exchanges on which the applicant relied indicated that the applicant was denied a real and fair hearing. In my view no jurisdictional error was committed by the Tribunal providing an interpreter who interpreted in the manner recorded above.
Ground three must be dismissed.
SZTAL v Minister for Immigration and Border Protection
As something of a sidewind, the applicant raised in his written submissions what he described as an application for leave to amend his already amended application. He did not formulate a precise ground. But as best I could distil from his written submissions, it appeared that the applicant wanted to agitate whether the Tribunal fell into jurisdictional error in its construction of the phrase “intentionally inflicted”. He wanted to somehow draw the debate in this case into the arena canvassed in SZTAL in respect of which the decision of the High Court is pending, it having heard argument on 5 April 2017.
Several things must be said about the applicant’s proposal for leave to further amend. First, the applicant’s initiating application was amended in October 2015. The case was fought on the basis of the amended application. Second, the subject of the SZTAL point was raised for the first time in written submissions the applicant filed on 12 April 2017. Third, no reason was given for the late proposal to include yet another amendment nor why the proposed amendment was being raised at all.
The Full Court’s decision in SZTAL currently binds me. The Tribunal correctly applied it. Whether the Full Court of the Federal Court’s decision is upheld or overturned by the High Court must await another day.
Conclusion
In my view all grounds failed.
I dismiss this application and order that the applicant pay the Minister’s costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 28 June 2017
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