AIZ15 v Minister for Immigration

[2016] FCCA 2122

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIZ15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2122

Catchwords:
MIGRATION – Application for a protection (Class XA) visa – review of decision of Refugee Review Tribunal – whether the Tribunal complied with s.424A – whether the Tribunal erred by failing to have documents translated into English – whether the Tribunal constructively failed to exercise its jurisdiction –no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – New ground raised in submissions without leave after hearing

Legislation:

Migration Act 1958 (Cth), ss.36(2), 424A, 424AA

Cases cited:
Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20
Clark v Commissioner for Corrective Services [2016] NSWCA 186
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
MZWKU v Minister for Immigration & Multicultural Affairs [2006] FMCA 255
MZWKU v Minister for Immigration & Multicultural Affairs [2006] FCA 996
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48
Patel v Minister for Immigration & Border Protection [2016] FCCA 954
Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population & Communities [2013] FCA 782
Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59
SZLSW v Minister for Immigration & Multicultural Affairs (2008) 103 ALD 580
SZQDR v Minister for Immigration & Border Protection [2016] FCA 543
SZQGL v Minister for Immigration & Citizenship (2012) 206 FCR 474; [2012] FCA 1011
S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153
X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319; [2002] FCA 56

First Applicant: AIZ15

Second Applicant: AJA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 921 of 2015

Judgment of: Judge Smith

Hearing date: 3 May 2016

Date of Last Submission: 25 May 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

The first applicant appeared in person.

Solicitors for the Respondents: Mr A. Keevers, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 921 of 2015

AIZ15

First Applicant

AJA15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of India who arrived in Australia on 27 March 2008. The applicants applied for protection (Class XA) visas on 17 December 2010 after the cancellation of the first applicant’s student visa. The application was made on the basis of claims made by the first applicant to fear harm in India. For that reason it is convenient to refer to him as the applicant.

2. A delegate of the Minister made a decision to refuse to grant the applicant a protection visa on 8 March 2011. On 7 August 2012 the Tribunal affirmed the delegate’s decision. The applicant appealed this decision and on 23 January 2013 the Federal Magistrates Court[1] ordered by consent, that the matter be remitted to the Refugee Review Tribunal[2] for review of that decision. The Tribunal made its decision on 11 March 2015 to affirm the delegate’s decision to refuse to grant the applicant a protection visa. The applicant then applied to this Court for review of that decision.

   [1] As it was then known.

   [2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Background

1. The applicant was a farmer who lived in Gujarat region of India with his family.

2. The applicant claims that he and his family were Congress Party supporters who worked against the Bharatia Jantha Party (“BJP”) in their area and that his father was a Congress Party Leader. Following in the footsteps of his father, the applicant worked with the Congress Party candidate during the election. The applicant claims that as a consequence of this, BJP “goons”[3] threatened him on a number of occasions, however he was not deterred and continued canvassing, distributing leaflets and organising mini-meetings amongst the farmers.

   [3] Hired thugs, deriving from the hindi word transliterated at “gunda”

3. At one stage, the applicant was beaten mercilessly by BJP members and his wife and family implored the applicant to curtail his work with the Congress Party.

4. After the birth of the applicant’s son there was a dispute regarding water distribution on the family’s farm. Local BJP members went to the applicant’s home and argued and accused him of unfairness and attacked him with a stick and knife. Neighbours of the applicant intervened and he avoided serious injury.

5. After the water distribution dispute and attack, the applicant decided to leave India and come to Australia on a student visa, however as he had no money he borrowed heavily from a money lender at a higher interest rate as he had no security bond. The applicant claims his loans spiralled out of control. He was unable to sell his land due to a dispute with his uncle.

6. The applicant claims the money lender threatened his parents and assaulted his father. He then returned to India from Australia to try and negotiate with the money lender but it turned into a political matter where the BJP threatened to use violence and kidnap him.

7. In December 2011, the applicant’s son was involved in a motor vehicle accident which the applicant believes was as a result of his political activity and claims.

8. The applicant fears that if he returns to India he would risk being kidnapped, seriously harmed or killed as a result of the animosity against him and his family.

Tribunal’s decision

1. The Tribunal found that the applicant was not credible or a witness of truth and did not accept his claims.

2. Despite the applicant’s claims of his role within the Congress Party and that of his father, his evidence was vague and he was unable to demonstrate any significant understanding of the Party or its aims, the Party’s stated purposes, the local issues aligned to the Party, the name of the candidate, the timing of the local elections. The applicant was unable to discuss the principles of secularism, socialism and democracy and reiterated that “candidates in small places stand for these small things” but was unable to go into more detail about “these small things”.

3. In addition, the Tribunal found the applicant’s evidence lacking in respect of the claimed attacks against him. The applicant was unable to provide the most basic of information regarding the claimed attacks, including how often he had been attacked. He gave vague and contradictory evidence about those attacks. When asked why he had not filed a police report, the applicant stated because “he did not know the people who beat him up”. The applicant further stated that “he knew if he went overseas he needed a police clearance” and that everyone (including his parents) told him not to file a police report.

4. The Tribunal found the applicant’s evidence regarding the water dispute to be undetailed, illogical and inconsistent with his statement, particularly the oral evidence given by him concerning the BJP’s denial of water to his family’s land.

5. Based on the information before it and the evidence given by the applicant, the Tribunal did not accept that the applicant had been attacked by the BJP for his political work or over a water dispute; that his parents had borrowed money from a money lender and were consequently harassed or assaulted or that his son had been involved in an accident due to his political involvement. Accordingly, the Tribunal considered these findings to cast serious doubt on the applicant’s overall credibility.

6. The Tribunal then turned to consider the applicant’s explanation for the delay in his protection visa application. It noted that despite the applicant’s claims of past harm based on his political activities, attacks on his father by either money lenders or connections of the BJP and his claim of a kidnap threat when he returned to India in 2009, that the applicant did not apply for protection when he held a student visa, nor when he discovered the cancellation of his student visa. The applicant went through the process of appealing the cancellation of his substantive visa with the Migration Review Tribunal but did not mention fearing harm on return to India. The Tribunal found the applicant’s return to India in 2009 was inconsistent with his claims of fearing harm; nor did it accept his explanations for the delay in lodging his application, finding that doubt had been cast over the genuineness of the applicant’s claims and his credibility.

7. For those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The amended application contains the following 3 grounds of review:

   1.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   2.The Tribunal constructively failed to exercise its jurisdiction.

   3.In finding that it was not satisfied that applicant was a person to whom Australia owed protection obligation, the Tribunal engaged in a press of reasoning that was irrational, illogical and not based upon findings or inference of fact supported by logical ground.

2. The parties were given leave to file further written submissions concerning the second of these grounds and, in particular, the authorities relied on by the first respondent at [25] of his original written submissions. Both parties filed submissions, however, the applicant’s submissions went beyond the issue in respect of which leave was granted and sought to raise a new ground of actual bias. That ground and the submissions made in respect of it will not be taken into account: see Patel v Minister for Immigration & Border Protection [2016] FCCA 954 at [15] citing MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 at 257-258 per Mason J; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [27]-[31]per McHugh J; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [191]-[192] per McHugh A-CJ, Gummow, Callinan and Heydon JJ; Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population & Communities [2013] FCA 782 at [2]-[5] and Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [66]-[72].

First ground

1. The applicant alleges that the Tribunal failed to comply with its obligations under s.424A of the Act. The particulars to this ground do not identify specific information that the Tribunal was required, but failed to put, to the applicant under s.424A of the Act. No transcript of the Tribunal hearing was filed in these proceedings by the applicant in support of this ground.

2. Section 424A(1) of the Act requires the Tribunal, amongst other things, to give “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and to invite the applicant to comment on or respond to the information. This invitation must be extended in writing unless the Tribunal follows the procedure provided in s.424AA which allows it to raise the relevant information orally during hearing.

3. The first question is whether there was any “information” within the meaning of s.424A(1) which gave rise to an obligation under that provision. In SZQDR v Minister for Immigration & Border Protection [2016] FCA 543, Griffiths J said at [32]-[33]:

   …

   It is clear nevertheless that “information” within the meaning of s 424A(1) does not extend to the “prospective reasoning process” of the Tribunal.

   As the High Court emphasised in SZLFX at [23] (in reaffirming the approach in SZBYR), “information” in the context of s 424A(1) “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.

4. The Tribunal’s reasons do not reveal any such information. Rather, they show that the Tribunal rejected the applicant’s claims because of doubts it had arising from inconsistencies in and the quality of his evidence. For that reason, there was no obligation under s.424A(1) and the first ground is rejected.

Second ground

1. The second ground is that the Tribunal constructively failed to exercise its jurisdiction by not engaging in an active, intellectual process in respect of the documents lodged by the applicant after the hearing by not having them translated, placing no weight on the documents and assessing the applicant’s credibility without assessing the said documents.

2. At the Tribunal hearing the applicant provided a document written in Gujarati and requested that the Tribunal have it translated. It was explained to the applicant that he would need to have this document translated for it to be considered by the Tribunal.

3. On 6 February 2015, the applicant provided to the Tribunal a translated copy of the document he produced at hearing (his father’s affidavit) and a note which, on one view, requested more time to produce a translation of the remaining documents. The Tribunal contacted the applicant advising him that they would not allow more time, and that any further information or evidence should be provided before 25 February 2015 after which time the Tribunal would make its decision.

4. The applicant attended the registry of the Tribunal on 25 February 2015 with further documents in Gujarati. However, he was told again that he would have to provide translated documents if he wished the Tribunal to consider them. A Tribunal officer described what occurred in a case note made at the time:

   …

   I decided to ring the Translating & Interpreting Service (TIS) and asked for a Gujarati interpreter. Unfortunately one was not immediately available – one may have been available in 20-30 mins. I asked the RA [review applicant] and he did not choose to wait. He stated that he understood me – I made sure that I spoke clearly and slowly emphasising important points.

   I again told him that a translating service is not what the Tribunal provides. He said that a translator will take a few days etc probably to translate his long document. I told him that this could have been arranged weeks ago. The RA still wanted me to take the letter and send it to Melb.Reg. – as that is what he had been told to do.

   …

5. Later on the same day, the applicant emailed the documents to the Tribunal stating (without alteration):

   …

   Today i attach to my hand writting history own my language. So, please you take to help Gujarati interpreter. I have no money and Gujarati to English translation is very expensive.

6. The Tribunal referred to the applicant’s attendance at the Registry in its statement of reasons:

   [48]I have considered the material supplied by the applicant after the hearing. I have decided not to get this translated, given my credibility concerns and my warnings to him at the hearing that if I made credibility findings I may give no weight to any documents provided. I consider that the applicant was clearly put on notice at the hearing that documents should be provided with translations. Further, the applicant has not had numerous opportunities to present evidence and arguments and respond to issues at hearings and provide documents. For all of these reasons, I have decided not to get this material translated and give it no weight.

7. Essentially, the applicant’s argument is that the Tribunal ought to have obtained translations of the documents given by him so that it could read them and then take them into account.

8. In his written submissions, the Minister argued that it was open to the Tribunal not to place any weight on the documents, or to commission their translation. He referred to the following authorities in support of those propositions: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (“S14/2002”) at [49]; Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [25]; MZWKU v Minister for Immigration & Multicultural Affairs [2006] FMCA 255 (upheld on appeal: MZWKU v Minister for Immigration & Multicultural Affairs [2006] FCA 996.

9. In S14/2002 Moore J said, at [49]:

   …

   Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546.

   …

10. In X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319; [2002] FCA 56, the Tribunal said that because a diary relied on by the appellant had not been translated, it could not take its contents into account. The Full Court allowed an appeal and set aside the Tribunal’s decision. Gray J said at [30]‑[31]:

    …

    It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated.

    …

    What course the Tribunal might take in a particular case will depend on the circumstances of the case. In the present case, it did not have the option of refusing to take into account the diary because it was not in English.

11. The other judge in the majority, Moore J, said at [49] and [52]:

    … the Tribunal did receive the contentious diary and had regard to it but only in a limited and qualified way. That is because the Tribunal did not seek to ascertain what the diary said.

    …

    In effectively rejecting the diary as material supportive of the appellant's case by declining to consider its contents without taking steps that might give meaning (to the Tribunal) to its contents, the Tribunal erred in the way discussed by Gray J. The consequence of the approach the Tribunal adopted was that it ignored relevant material.

    …

12. It is fair to say that the scope of judicial review has changed since the time of those authorities. One example of this is the focus on the requirement that statutory powers be exercised reasonably[4]. In light of that, I invited the parties to make further submissions about the current state of the authorities relevant to the issue of the decision by the Tribunal not to obtain a translation of the documents produced by the applicant.

    [4] See also the comment by Basten JA in Clark v Commissioner for Corrective Services [2016] NSWCA 186 at [10].

1. The Minister submitted, in essence, that the authorities relied on in his first submissions were still good law (see, for example, SZLSW v Minister for Immigration & Multicultural Affairs (2008) 103 ALD 580 and SZQGL v Minister for Immigration & Citizenship (2012) 206 FCR 474; [2012] FCA 1011) and that, more generally, there was no general obligation on the Tribunal to undertake its own inquiry and that it was for the applicant to make out his or her case: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at [1]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992.

2. While I accept that the authorities relied on by the Minister remain good law they do not purport to provide a complete answer to the circumstances in which the Tribunal will fall into jurisdictional error by failing to obtain a translation of material provided by the applicant. Such a failure may, in the circumstances, be unreasonable. There may be an error that does not fall neatly into any category such as that identified and explained by Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317. In my view, whether there is an error will depend on all the circumstances.

3. Here, the relevant circumstances include the fact that the applicant was on notice that he was required to provide translations of documents and was able to do, at least in respect of his father’s declaration. Further, the untranslated documents were not independent documents that purported to corroborate an important aspect of the applicant’s claims but, rather, a document written by the applicant setting out his own history. As the Tribunal said, the applicant had had many opportunities to present his case. Finally, the translation of the documents is in evidence and, on any view, goes no further than to restate the applicant’s case put previously to the Tribunal. The Tribunal considered all the other evidence given by the applicant in support of that case. In light of that, the failure by the Tribunal to have the documents translated cannot be said to have been material to the Tribunal’s decision. For those reasons, the Tribunal did not act unreasonably, there was no denial of procedural fairness and the Tribunal did not otherwise fall into jurisdictional error.

4. This ground is rejected.

Third Ground

1. The third ground is that the Tribunal’s decision was “irrational, illogical and not based upon findings or inference of fact supported by logical grounds”.

2. It may be accepted that a decision may be open to review on the basis that it is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”: Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 (“S20/2002”) at [52] per McHugh and Gummow JJ. However, such a ground ought to be approached with some caution. Gleeson CJ noted this in S20/2002, at [5]:

   As was pointed out in Minister for Immigration v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.

   (Citation omitted)

3. There was no elucidation of any error by the applicant. The Tribunal’s decision turned on its finding of credit which were, in my view, based on logical grounds. The ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 19 August 2016