AOC15 v Minister for Immigration
[2018] FCCA 530
•6 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOC15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 530 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal citizen of Sri Lanka – whether credibility findings affected by misinterpretation of applicant’s evidence – whether error in findings that applicant lied as to nature of camp in Sri Lanka – whether reliance on irrelevant or insubstantial materials resulted in an error in credibility findings – whether jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 91R(l) & (2), 414, 425, 474, 476, 499(2A) Immigrants and Emigrants Act 1949 (Sri Lanka), s.45 |
| Gill v Minister for Immigration & Border Protection & Anor [2017] FCAFC 51; (2017) 250 FCR 309; (2017) 71 AAR 525 Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 SZRMQ v Minister for Immigration & Border Protection & Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 |
| Applicant: | AOC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 161 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 18 April and 16 May 2016 |
| Date of Last Submission: | 18 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 6 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Udall (on 18 April 2016) and Mr F Robertson (on 16 May 2016) |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Ms E Tattersall |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That a writ of certiorari issue quashing the decision of the second respondent made on 23 March 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 10 February 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 161 of 2015
| AOC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 22 April 2015 the applicant seeks review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 23 March 2015 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 153-180.
The applicant’s solicitors filed an amended Judicial Review Application (“Amended Judicial Review Application”) on 10 December 2015.
Relevant factual background prior to the Tribunal hearing
The relevant factual background prior to the Tribunal hearing is as follows:
a)the applicant is a citizen of Sri Lanka and arrived in Australia as an illegal maritime arrival on 24 June 2012: CB 84;
b)on 12 February 2013 the Minister lifted the bar under s.46A(l) of the Migration Act thus enabling the applicant to lodge an application for the Protection Visa, and on 12 March 2013 the applicant lodged that application (“Protection Visa Application”): CB 84 and 1-28;
c)the applicant claimed to fear harm on the basis of his imputed political opinion and religion: CB 29 at [4];
d)specifically, the applicant claimed that:
i)in 2006 the Liberation Tigers of Tamil Eelam (“LTTE”) were taking students from his school and in 2007 he left to avoid being abducted by the LTTE: CB 29 at [5.1];
ii)he lived in the roof space of his cousin's house to avoid being captured by the LTTE: CB 29 at [5.2];
iii)in March 2008 he attempted to leave the LTTE controlled area and the boat he was travelling on was intercepted by the Sri Lankan Navy and the applicant was detained in the “Navy Detention Centre in Mannar” (“Mannar Camp”): CB 29 at [5.4];
iv)while detained the “Military Intelligence wing of the Sri Lankan Army” interrogated him and he was accused of being a LTTE cadre: CB 29 at [5.5]. He was released from detention after approximately 18 months: CB 30 at [5.10];
v)he had experienced discrimination and persecution by the Sri Lankan Army at checkpoints on the road and when applying for permits: CB 30 at [5.8]; and
vi)upon return to his home village one of the Military Intelligence men forced him to give him money and "do things like buy gifts for his children on their birthdays": CB 30 at [5.13]; and
e)on 22 January 2014, the Delegate refused the Protection Visa Application: CB 83-104. The applicant lodged an application for review to the Tribunal on 10 February 2014: CB 105-111.
Tribunal hearing
The applicant attended the Tribunal hearing on 22 December 2014 (“Tribunal Hearing”) with his representative and the assistance of a Tamil interpreter: CB 134.
The Tribunal found that during the course of the Tribunal Hearing, the applicant raised further claims, namely that:
a)his teeth had been taken out whilst in the Mannar Camp: CB 156 at [9];
b)authorities in Sri Lanka dismantle Hindu temples and convert them to Buddhist temples: CB 156 at [13]; and
c)his parents were supporters of the LTTE and gave money and food to the LTTE: CB 159 at [30].
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)set out the applicant’s claims for protection as made to the Department in a statutory declaration sworn on 21 February 2013, in which he claimed to have been detained in the “detention centre in Mannar” for 18 months before being released in September 2009: CB 154 at [3]; and
b)summarised the Delegate’s Decision including the Delegate’s finding that “the applicant claimed he had never been harmed or mistreated in Mannar where he remained in a refugee camp for 18 months”: CB 155 at [4].
The Tribunal then dealt with the evidence at the Tribunal Hearing, and relevant to the Amended Judicial Review Application, the Court notes the following:
a)that the Tribunal Hearing was conducted with the assistance of an interpreter in the Tamil and English languages, and that the applicant was represented in relation to the review by the Tribunal by his registered migration agent who attended the Tribunal Hearing: CB 155 at [6]-[7];
b)in relation to an issue concerning the extraction of teeth which lies at the heart of the alleged misinterpretation the Tribunal said as follows at CB 156 at [9]:
The Tribunal asked the applicant whether he had ever been harmed for reasons of his race, ethnicity or politics in Sri Lanka. He replied that he was not harmed but in the camp they took out his teeth and he was not allowed to speak to his mother. The Tribunal asked the applicant why his teeth were taken out. He replied that he was in a camp for one and a half years and that he did not have any connection with his mother or anyone else because there were LTTE in the area. As he had not answered the question, the Tribunal again asked him why his teeth were taken out and whether his teeth had been removed in order to harm him. He told the Tribunal his teeth were good but they took them out to harm him. The Tribunal put it to the applicant that he does not appear to have mentioned this previously to the delegate. He replied that many things that happened in the camp he could not remember.
c)in relation to the applicant’s claims as to the nature of the Mannar Camp the Tribunal at CB 156-157 at [17] said as follows:
The Tribunal asked the applicant whether he wanted to comment on the delegate's finding that there was an inconsistency in his claims as to the nature of the camp in Mannar and that as the camp was a welfare camp for internally displaced persons then it appeared that he had embellished his claims by saying it was an army or navy camp. The applicant said that if it was not an army camp, then the army guarded it. The Tribunal put it to the applicant that perhaps the army was guarding the residents of the camp for their own protection. The Tribunal put it to the applicant that the documents provided to the Department indicate that it was in fact a welfare camp for internally displaced persons.
d)in relation to finding work in Sri Lanka the Tribunal said at CB 157 at [19] as follows:
The Tribunal referred the applicant to his claim that he could not find work in Sri Lanka, although he had also claimed that he had worked as a carpenter for his uncle. The Tribunal noted this inconsistent information raises questions as to his credibility. The applicant said that it appears that he was lying but that he had forgotten that he had been working.
e)that the Tribunal had allowed time for, and had received a post-hearing submission from the applicant on 5 February 2015: CB 159 at [35], and summarised those submissions at CB 159-160 at [36], including the following points:
• In respect of the Mannar camp, it is submitted that Amnesty International has reported that this was a “detention camp” although they were referred to officially as a “Welfare village.” It is submitted that there is a distinction to be made between preventative detention and the detention camp in which the applicant was held. The submission refers to, inter alia, the refusal by the Sri Lankan government to allow scrutiny of such camps;
• The submission refers to the applicant's claim of being tortured by having his teeth pulled out while in the Mannar camp. The submission say the applicant emphatically and strenuously denies that his teeth were taken out for medical or dental reasons and that he required hospitalisation after his teeth were removed;
The Tribunal set out, extensively, independent country information at CB 161 at [37] to CB 166 at [47]. The Tribunal also set out the relevant law with respect to both the refugee and complementary protection criterion at CB 166 at [48] to CB 168 at [62].
In the Tribunal Decision the Tribunal:
a)found the applicant had not given truthful or credible evidence in respect of important aspects of his claims, and at CB 169-170 at [70] the Tribunal said:
The Tribunal carefully considered all of the applicant's written claims and submissions and his oral evidence given at the hearing. The Tribunal has reached a conclusion that the applicant has not given truthful or credible evidence in respect of important aspects of his claims. Further it considers the applicant has fabricated and exaggerated aspects of his claim for the purpose of enhancing his protection claims. When the Tribunal put to the applicant at the hearing its concerns as to the credibility or truthfulness of his claims, the applicant variously claimed that he had forgotten to mention certain claims, or that he had not been asked about certain things, or that he could not express all the things that happened to him, or otherwise sought to explain these things in other ways. The post hearing submissions also refers to, amongst other things, the applicant being traumatised and only opening up to the Tribunal as the applicant has become more confident and comfortable with the system. While the Tribunal accepts these factors are relevant, it does not accept in the circumstances of this case that these factors explain such things as the late addition of the teeth extraction torture claim or the claim that his parents provided money, food and support for the LTTE. The Tribunal further explains why it rejects these claims in the paragraphs that follow. Further, the Tribunal found that the applicant was evasive in his responses to some of its questions at the hearing, for example, it found his response evasive when it asked the applicant why his teeth were taken out. The Tribunal found inconsistencies in the applicant's claims and oral evidence, for example in his statutory declaration he claims that in March 2008 he decided to leave Kilinochchi to go by boat to a government controlled area in the Mannar District, whereas at the hearing the applicant claimed that at that time he tried to leave Sri Lanka and the boat he was on when it broke down was on its way to India. For these and other reasons discussed in more detail in following paragraphs, the Tribunal is not satisfied that the applicant is a truthful witness and it rejects much of his evidence as unreliable.
b)despite its credibility concerns, accepted that in 2008 a boat that the applicant was on was intercepted and that he was detained in the Mannar Camp and was questioned by the authorities who suspected the applicant [he] may have been associated with, or otherwise had links to, the LTTE, and went on to find that the applicant would not have been released from the Mannar Camp if the authorities held suspicions that he had links or associations with the LTTE: CB 170-171 at [74];
c)having regard to country information was “inclined to accept” that the applicant was harassed and extorted for money by a corrupt officer, however it did not accept that:
i)the officer viewed the applicant as a person with possible links to the LTTE or that the officer would consider that the applicant had done something wrong; and
ii)the harassment and extortion was motivated by any Convention ground,
and found there was not a real chance the officer would cause the applicant serious harm: CB 171-172 at [76];
d)accepted the applicant would have been questioned at checkpoints during the period of the Sri Lankan civil war, and that the applicant was not granted a permit to extract sand, however did not consider that the harm amounted to persecution under s.91R(l) or (2) of the Migration Act: CB 172 at [77];
e)dealt with the applicant’s claims concerning what occurred with respect to his teeth whilst in Mannar Camp at CB 172 at [78] as follows:
In respect of the applicant’s claim that while he was in Mannar Camp he had his teeth removed, based on the evidence before it, the Tribunal does not accept that his teeth were removed to harm or torture him. The Tribunal found the applicant did not make this claim in his statutory declaration or before the delegate at the protection visa interview. The Tribunal considers that a claim of teeth extraction as a part of torture would, if it had occurred, have been made at the earliest opportunity when the applicant was asked why he fears returning to his country. The Tribunal considered the applicant's explanations of why this claim was made for the first time before the Tribunal, however it finds none of those claims, individually or cumulatively convincing. It does not accept that such a claim would be suppressed for the reasons submitted. To add to the Tribunal's level of confidence that the applicant's teeth were not extracted for the purpose of torture, the Tribunal refers to its observation of the applicant's evasiveness at the hearing when asked why his teeth were extracted. The Tribunal concludes by finding that if the applicant's teeth were taken out while he was in Mannar Camp, then it is not satisfied that they were taken out for the purpose claimed by the applicant, that is, for the purpose of causing him serious harm. Further, having regard to all of the evidence in this respect, nor does the Tribunal find his teeth were taken out to cause the applicant serious harm for one or more of the Convention grounds.
f)considered the claim that the applicant's parents were supporters of the LTTE to be a late invention for the purpose of strengthening his protection claims and in light of that placed no weight on the two letters submitted by the applicant as part of his post-hearing submissions: CB 173 at [81];
g)was not satisfied that the applicant was a person who had, or was perceived to have, a pro-LTTE or anti-government political opinion and was not satisfied he would be targeted for harm for reasons of his actual or perceived political opinion: CB 174 at [84];
h)in relation to the applicant's religion, found that the applicant did not have a genuine fear that he would be seriously harmed for reasons of his religion, or that if that harm did exist, that it was not well-founded: CB 175 at [88];
i)although not raised by the applicant, considered the applicant’s risk of harm arising from his illegal departure, and was satisfied that s.45 of the Immigrants and Emigrants Act 1949 (Sri Lanka) (“I&E Act”) was a law of general application: CB 176 at [92], and that the applicant did not face a real chance of serious harm throughout the entire process associated with the initial questioning, temporary detention, bail, prosecution and subsequent penalty under the I&E Act if the applicant returned to Sri Lanka: CB 176 at [94]; and
j)considered the applicant's claims under the complementary protection criteria and concluded that the applicant did not face a real risk of significant harm from the state authorities in Sri Lanka: CB 177 at [100], as a result of any demands for money: CB 178 at [101], his Hindu religion, being a failed asylum seeker or his imputed political opinion: CB 178 at [102]. The Tribunal further found that the applicant would be able to pay any fine imposed under the I&E Act: CB 178 at [103], and that the applicant faced no real risk of significant harm through the entire process associated with the initial questioning, temporary detention, bail, persecution and subsequent penalty under the I&E Act if the applicant returned to Sri Lanka: CB 179 at [108].
The Amended Judicial Review Application
The Amended Judicial Review Application sets out nine grounds of judicial review. The applicant’s written submissions indicated that only four of those grounds would be relied upon, being grounds one, three, seven and eight. It emerged at the hearing the applicant intended to only make substantive submissions on grounds one and three, and at hearing ground eight was not pursued: Transcript, page 2. Each of the three grounds still pursued are considered separately below.
Prior to the hearing on 18 April 2016 the applicant had filed two affidavits (to which no objection was taken by the Minister), namely:
a)the affidavit of Patricia Ng Phaik Kim affirmed on 1 December 2015 (“Ms Kim’s Affidavit”) attesting to her having listened to the sound recording of the Tribunal Hearing and having prepared the transcript of the Tribunal Hearing of 18 April 2016 (“Tribunal Hearing Transcript”), a copy of which was annexed to Ms Kim’s Affidavit; and
b)the affidavit of Dr Senthuran Appadurai affirmed 8 December 2015 (“Dr Appadurai’s Affidavit”) attesting to the fact that he is a NAATI accredited Tamil interpreter, and that he had interpreted the sound recording of the Tribunal Hearing received from the applicant’s lawyers between the times 15:30 to 22:51 (that is almost seven minutes and 21 seconds), and had interpreted the applicant’s testimony in the Tribunal Hearing from Tamil to English and reproduced it in written form, a transcript of which was annexed to Dr Appadurai’s Affidavit (“Reinterpreted Tribunal Hearing Transcript”).
Both the applicant and the Minister filed submissions in advance of the hearing. At hearing the Court observed (following on from submissions by Counsel for the Minister) that the alleged misinterpretation was completely at odds with a post-hearing submission made to the Tribunal by the applicant’s then migration agent: Transcript, pages 8, lines 35-46 and 9, lines 1-5, and when in reply it was put to Counsel for the applicant that the applicant was bound by the migration agent’s conduct, and that there was no evidence concerning how it was that the migration agent came to make submissions consistent with what the applicant now says was a misinterpretation of his evidence, Counsel for the applicant said that the applicant had a statutory declaration (seemingly in the possession of the applicant’s solicitors) from the migration agent indicating that he made the post-hearing submissions without instructions, but it was said that that had not been reduced to affidavit form or been the subject of any notice to the Minister’s solicitors: Transcript, pages 10-11. The Court, following some discussion with Counsel, indicated that it proposed to adjourn the matter to a directions hearing to allow the parties to determine how the matter ought to proceed in the above circumstances: Transcript, page 12.
Prior to the scheduled directions hearing on 16 May 2016 the applicant filed:
a)an affidavit of Nabeel Lang:
i)affirmed 26 April 2016 (“Lang April 2016 Affidavit”) in which Lang, who was the applicant’s migration agent: Lang April 2016 Affidavit at [1]-[2], said as follows:
8. I recall that there was an issue raised during the Tribunal hearing concerning the extraction of the applicant's teeth. My files, my notes taken during the hearing and the transcript of the audio recording, referred to above, confirm that there was an issue raised about the applicant's teeth extractions. It was whether the teeth were extracted to torture the applicant.
9. At the end of the hearing I was invited to make comments. There wasn't any specific request by the Member for comment on any specific issues. I requested that I be allowed to make written submissions. Immediately after the hearing I spoke to the applicant, using the services of the interpreter, to answer any questions the applicant may have after the hearing and to inform him about the preparation, by me, of a written submission to the RRT. I did not take any further specific instructions from client on the issue of the extraction of his teeth and client did not himself raise the issue with me.
10. I subsequently lodged my written submissions referred to paragraph 6 above and the written submissions were made to clarify the issues raised by the Tribunal hearing.
11. I refer now, in particular, to paragraph 2.1.3 and the advice by AUM Legal that the current issue in these proceeding is whether the submissions were made at the instructions of the Applicant. I confirm that the submission at paragraph 2.1.3 [which appears at 7(e) above) was made by me, based on my own recollection and my notes taken at the hearing, solely on the interpretation at the Tribunal hearing. The applicant did not give me any specific further instructions after the hearing concerning the loss or otherwise of his teeth.
Lang Affidavit at [8]-[11]; and
ii)affirmed 10 May 2016 (which appears to be in precisely the same terms as the Lang Affidavit, which is the affidavit to which the Court will refer); and
b)an outline of submissions filed on 10 May 2016 (“Applicant’s Supplementary Submissions”), the content of which is set out below.
On 16 May 2016 the Court made orders including the following:
1. The Applicant have leave to file the affidavit of Nabeel Lang, affirmed on 10 May 2016.
2.The Applicant have leave to file short supplementary written submissions by 10 May 2016.
3.The First Respondent have leave to file short supplementary written submissions and the affidavit of Ellen Tattersall by 18 May 2016.
On 18 May 2016 the Minister filed:
a)the affidavit of Ellen Lucy Goldsworthy Tattersall, a solicitor employed by the Minister’s solicitors, in which she referred to email correspondence exchanges between the Minister’s solicitors and the applicant’s solicitors, the effect of which was to clarify that, at hearing, then Counsel for the applicant (Mr Udall) had misunderstood the applicant’s solicitors instructions which were to the effect that he could obtain a statutory declaration from the migration agent, Mr Lang indicating that the post-hearing submissions to the Tribunal were filed without obtaining any further instructions from the applicant, rather than (as was conveyed to the Court) that there was already a statutory declaration to that effect; and
b)an outline of submissions filed on 18 May 2016, the content of which is set out below.
Consideration
Jurisdictional error required
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 (“Plaintiff S157/2002”).
Ground one
Ground one of the Amended Judicial Review Application is as follows:
The Tribunal committed jurisdictional error and denied the applicant natural justice when it found the applicant to be lacking credibility on facts incorrectly interpreted to it. The Tribunal misunderstood that the applicant claimed having been tortured when his tooth was extracted at the hospital. This finding was a significant reason for the Tribunal reaching the conclusion that the applicant was not credible. (CB 156 [9]), (CB169 [70]), (CB172-173 [78] [83]), (CB177 [100]).
Particulars
i) The Tribunal misunderstood the applicant’s version of events because the interpreter did not understand what the applicant said.
ii) The interpreter did not provide accurate interpreting assistance and provided material mistranslations of the applicant’s answers to questions asked by the Tribunal.
iii) The interpreter did not understand parts of what the applicant said.
iv) The Tribunal wrongly found that the applicant was evasive in his responses to some of its questions at the hearing, for example, it found the applicant’s response evasive when it asked the applicant why his teeth were taken out (CB170 [70).
v) It is clear from the transcript prepared by Dr Senthuran Appadurai of the inaccurate interpretation and misinterpretation by the Interpreter to the Tribunal.
vi) What is clear from the transcript is that the applicant had pretended to have a bad tooth so that he would be taken to the hospital by the army to have his tooth extracted. This in turn would allow him to get hold of a mobile phone from someone and make a call to his mother to find out how she was.
Applicant’s submissions
In oral submissions at hearing Counsel for the applicant stated that the crux of Tribunal Decision and the issue upon which it turned was the credibility, or lack thereof, of the applicant’s evidence during the Tribunal Hearing: Transcript, page 2, lines 30-35.
Counsel for the applicant placed significant emphasis on the interpretation of the applicant’s evidence when recounting an experience at the Mannar Camp where the applicant allegedly faked a toothache in order to be taken to the hospital to access a mobile phone to contact his mother because he did not have access to communication facilities at, nor was he at liberty to leave, the Mannar Camp. It was submitted that the interpreter did not communicate this effectively to the Tribunal who perceived this as the applicant claiming he was tortured and having his tooth extracted when, in fact, no teeth were extracted: Reinterpreted Tribunal Hearing Transcript p.2, lines 40-45.
In support of the claim the interpreter made significant errors when interpreting the applicant’s responses and recounting of events to the Tribunal, the applicant relied upon Dr Appadurai’s Affidavit re-interpreting the relevant passages from the Tribunal Hearing Transcript as follows:
Audio recording transcript between 15:30min to 22:51min by Dr Senthuran Appadurai.
15:30min
Member: Have you ever been harmed for reasons of your politics or your ethnic or your race or for any reasons?
[Applicant]: didn't harm me but when I was in Mannar I can't even use a phone, have my tooth extracted. Please tell member to see. Only when he sees he will know.
INT: I was not harmed but when I was in the camp they took my teeth out.
[Applicant]: They won't let me speak to my mother
INT: and they won't allow me to talk to my mother
[Applicant]: only when going to hospital I can speak. Because of that I have to extract my tooth otherwise they won't take me to the hospital two army personnel will always follow me.
INT: I wasn't allowed to talk to my mum only then I was taken to the hospital - only during that time I was allowed to talk and they had taken a couple of my teeth.
Member: Why did they take your teeth out [Applicant]?
[Applicant]: They didn't take my teeth out. They won't allow me to speak to my mother.
INT: They won't allow me to talk to my mother in phone. I can't talk in the phone.
Member: Why did they take your teeth out [Applicant]?
[Applicant]: Can you understand what I am saying. I am saying they didn't extract my teeth. Only if I go to the hospital I can use the phone to communicate.
INT: They didn't take the teeth out, if I go to the hospital then only I can talk.
[Applicant]: In that way also they had harmed me.
Member: Did they take your teeth out because you had bad teeth or you had a toothache? Is that why they took your teeth out?
[Applicant]: Please explain properly what I am saying. The Member asked. He asked what other reason I have if am returned home. I am saying they even harass people like this. Not allowing us to use the phone. What can I say. When I was in the detention centre they didn't allow me to use the phone. Even I didn't had the right to talk to my mother over the phone when I was in the detention centre.
INT: (asking the member whether he can seek clarification)
Member: Clarification if you require Mr Interpreter?
INT: Can you repeat what you are saying.
[Applicant]: When I first came for 1.5 years I stayed in the camp.
INT: For 1 Y2 years I was in this camp.
[Applicant]: When I was there I don't have any communication with anyone. No communication with my mother.
INT: At that time I didn't have any connection or contact with my mother or anyone else.
[Applicant]: All of them were living in the LTTE controlled area.
INT: They were all in the area which was controlled by LTTE.
Member: [Applicant], I asked you a couple of minutes ago have you ever been harmed for reasons of your race or your nationality and so on. You said you weren't harmed in the camp but they took your teeth out. Were you suggesting that that was some sort of torture or are you telling me that they actually took care of your teeth?
[Applicant]: Not to harass. They won't let me go anywhere. You don't understand what I am saying. It is like harassment.
INT: That action was not to harm but they did that only to harm me.
Member: The action was not to harm but they did that only to harm me. What do you mean sir?
[Applicant]: I don't know how to explain. They didn't harass me. I will explain as we go along.
INT: I'm unable to explain it and
[Applicant]: You don't understand what I am saying.
INT: He is saying I'm not understanding.
Time:21:31
Member: [Applicant], simple question. You say that in the camp you had teeth taken out. Was it because you had bad teeth or was it because you had a toothache. Simple question, yes or no.
[Applicant]: No. It was good teeth. To harm me.
INT: It was a good teeth but they pulled out to harm me.
Member: You don't seem to have mentioned this to the Department of Immigration or in your written application for your interview. Why are you mentioning it now [Applicant]?
INT: Many things that happened to me in the camp I've forgotten.
The applicant’s submissions in relation to ground one of the Amended Judicial Review Application can be summarised as follows:
a)on the basis of the inaccurate interpretation, it was submitted that the Tribunal fell into error because it relied on information which was incorrect, in particular:
i)the applicant claimed to have been detained in Mannar Camp, not to have spoken to his mother since arrival in the Mannar Camp, was concerned about his mother’s safety, and was desperate to call her. The applicant said he had pretended to have a bad tooth so that he would be taken to the hospital by the army to have his tooth extracted, in turn allowing him to get hold of a mobile phone and make a call to his mother to find out how she was;
ii)confusion resulted because the interpreter did not understand what the applicant said and therefore did not provide accurate interpreting assistance, and that resulted in material mistranslations of the applicant’s answers to questions asked by the Tribunal. The applicant relies on Dr Appadurai’s Affidavit to support this submission; and
iii)the Tribunal found the applicant to be not credible and rejected his claim about the tooth extraction issue and further rejected claims about his uncle’s involvement in the LTTE and the harassment of his aunt by authorities: CB 173;
b)in SZSEI v Minister for Immigration & Border Protection [2014] FCA 465 (“SZSEI”), the Federal Court considered whether interpretation errors resulted in a failure to afford procedural fairness to an applicant by effectively denying the applicant a proper opportunity to be heard for the purposes of ss.414 and 425 of the Migration Act: SZSEI at [114]-[117] per Griffiths J. Issues arising with the interpretation of the tooth extraction issue led the Tribunal to make several adverse credibility findings which formed a significant part of the Tribunal Decision to affirm the Delegate’s Decision; and
c)in SZRMQ v Minister for Immigration & Border Protection & Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 (“SZRMQ”) at [78] and [80] per Robertson J a member of a Full Court of the Federal Court said that interpreting issues must be measured by their “frequency and character” and cumulative effect. Based on the Tribunal Transcript and Dr Appadurai’s Affidavit the interpreting errors had the cumulative effect of adverse credibility findings being made against the applicant when otherwise there may not have been any adverse credibility findings.
In the Applicant’s Supplementary Submissions the applicant submitted as follows:
a)the Lang Affidavit goes to Ground one of the applicant’s amended grounds. That ground alleges a denial of natural justice or procedural fairness by reason of misinterpretation. The Lang Affidavit deposes to and confirms the following facts:
i)he prepared the post-hearing submissions dated 4 February 2015;
ii)that he recalls an issue being raised, during the Tribunal Hearing, about the extraction of the applicant’s teeth, particularly whether or not the teeth were extracted in order to torture the applicant;
iii)after the Tribunal Hearing, Mr Lang spoke to the applicant and took further instructions – but did not seek any specific instruction in relation to the extraction of teeth issue; and
iv)Mr Lang then prepared his written submissions based on his notes, recollection of the Tribunal Hearing and the interpretation that he heard at the Tribunal Hearing, and that otherwise he did not seek further instructions.
b)to properly put the Lang Affidavit in context, it is important to consider the level of misinterpretation that occurred;
c)it is not unreasonable to assume that a registered migration agent will make submissions consistent with what he or she understands to have been the evidence given before the Tribunal. That is, after all, the evidence of the applicant. If the migration agents understanding of the evidence (putting to one side the understanding of the evidence by the Tribunal) is tainted by deficient interpretation, then those submissions are not necessarily submissions of the client;
d)when reading the Re-interpreted Tribunal Hearing Transcript, it becomes quite clear that the interpreter had difficulty with what was being said by the applicant. In summary, the applicant was saying that he was not being allowed to speak to his mother. The applicant said that the only way he could manage to speak to his mother was to go to hospital and have two teeth extracted. He did that because they refused to let him speak to his mother. It was the refusal to permit him to speak to his mother that he considered harassment, not the extraction of teeth;
e)by way of example:
Member: [Mr Applicant], I asked you a couple of minute ago have you ever been harmed for reasons of your race or your nationality and so on. You said you weren’t harmed in the camp but they took your teeth out. Were you suggesting that that was some sort of torture or are you telling me that they actually took care of your teeth?
Applicant: Not to harass. They won’t let me go anywhere. You don’t understand what I am saying. It is like harassment. [as translated by Dr Appadurai]
Interpreter: They didn’t take the teeth out, if I go to the hospital then only I can talk. [as translated by the Interpreter].
f)this example is not remotely similar to what was said. It is difficult to even suggest that the interpreter was paraphrasing. Rather, by this point the interpreter was not actually interpreting what was being said, but rather trying to convey a story to the Tribunal without indicating to the Tribunal that they might have caused confusion. By this stage, the interpreter was trying to fix up the miscommunication which occurred earlier, without actually indicating to the Tribunal that he had made the error in interpretation;
g)the second example is:
Member: Why did they take your teeth out [Mr Applicant]?
Applicant: They didn’t take my teeth out. They won’t allow me to speak to my mother. [as translated by Dr Appadurai]
Interpreter: They won’t allow me to talk to my mother in phone. I can’t talk in the phone. [as translated by the Interpreter].
h)in the second exchange, the interpreter made no mention of the fact that the applicant said, quite explicitly, “They didn’t take my teeth out”. Rather the interpreter spoke solely about the phone issue, which lead the Tribunal to have to repeat the question and by which stage it is entirely possible that the Tribunal considered that the applicant was being evasive;
i)the errors and misinterpretation (and in some instances no attempt at direct interpretation at all) are all reasonably patent upon a review of Dr Appadurai’s Affidavit. It cannot even be said that the interpreter conveyed the substance of what was said: SZRMQ at [9] per Allsop CJ;
j)the finding as to the extraction of the teeth, based on the misinterpretation, was a significant reason for the Tribunal reaching the conclusion that the applicant was not credible: CB 156 at [9], CB 169 at [70], CB 172-173 at [78] and [83] and CB 177 at [100];
k)it is trite that, generally speaking, a party is bound by the manner in which their Counsel conducts the case. That rationale is appropriate and well placed, namely that there be some finality to litigation and that it is important that Counsel, have the ability to exercise forensic decision-making in the conduct of the case;
l)it is important to distinguish between a legitimate forensic decision made by a representative: for example, not to put a particular submission or not to put a particular argument (noting that most authorities refer to decisions made by Counsel not registered migration agents), with submissions which are made in the shadow of a misunderstanding of the evidence occasioned by deficiencies in the evidence – which this was. Mr Lang did not confirm those submissions with the applicant; and
m)the fact that the applicant’s representative was likewise mislead by the evidence is such that it serves to further demonstrate the unfairness that was visited on the applicant by the deficient interpretation before the Tribunal. In that respect, it can be said that the errors which occurred were “so material as to cause the decision-making process to miscarry”: SZRMQ at [23] per Allsop CJ - the consideration of post hearing written submissions being fundamental to the Tribunal’s decision-making process.
Minister’s submissions
The Minister’s submissions in relation to ground one of the Amended Judicial Review Application are as follows:
a)on the evidence available to the Court, this ground cannot be made out as the weight to be afforded to the Reinterpreted Tribunal Hearing Transcript, and Dr Appadurai’s Affidavit, should be limited given it relates to only a portion of the Reinterpreted Tribunal Hearing;
b)inadequate interpretation does not mean that a Tribunal hearing has not been fair, rather it will depend upon;
i)the particular circumstances of the case: SZRMQ at [5] per Allsop CJ; and
ii)the adequacy of the translation to “convey the substance of what is said”: SZRMQ at [9] per Allsop CJ and “communicate the substance of … [the] case and to respond to issues raised”: Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR l at [28] per Tamberlin, Mansfield and Emmett JJ;
c)the interpreter had translated “the essential elements that were being conveyed by the appellant”: SZRMQ at [90] per Robertson J. It is not necessary, or perhaps even possible to achieve a perfect interpretation: Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 (“Perera”) at [26] per Kenny J;
d)the applicant did not say, as the applicant submitted, that he had pretended to have a bad tooth, rather the evidence was:
i)he had his tooth extracted;
ii)he was only allowed to speak to his mother when in the hospital;
iii)they did not extract his teeth; and
iv)his teeth were good and it was to harm him;
e)in order for this ground to be made out the applicant must establish that he was “effectively prevented from giving his evidence” or that “errors had occurred in translation which were so material as to cause the decision-making process to miscarry”: WALN v Minister for Immigration & Multicultural & Indigenous Affairs (“WALN”) [2006] FCAFC 131 at [29] per Ryan J;
f)post-Tribunal Hearing written submissions confirmed the claim that the applicant's teeth had been removed to harm him. The relevant parts of the post-hearing submissions at CB 144 are as follows:
2.1.3 The Claimant raised the issue of having been tortured by the Sri Lankan authorities by having his teeth pulled out while in the [Mannar] detention camp. The Tribunal member suggested that Claimant's teeth may have been removed because of toothache or some medical/dental reason but this was emphatically and strenuously denied by the Claimant who stated that there had been nothing wrong with his teeth and they had been removed to harm him.
The Claimant required hospitalisation after the pulling out of his teeth.
It is submitted that this is strong evidence of real or actual torture being inflicted on the Claimant.
g)it cannot be contended that the Tribunal misunderstood the applicant's claims, when the post-Tribunal Hearing written submissions of the applicant made the precise claim which the Tribunal did not accept as occurring.
The Minister’s Supplementary Submissions addressed the Lang May 2016 Affidavit and submitted as follows:
a)the Lang Affidavit deposes to the fact that post-Tribunal Hearing submissions were prepared without the migration agent obtaining further instructions from the applicant in relation to the evidence of the loss of his teeth and were prepared on the basis of the migration agent’s notes of the evidence given by the applicant at hearing, but those notes are not annexed to the affidavit;
b)the applicant’s supplementary submissions further elaborate on the previous written and oral submissions in the matter and place specific reliance on two instances of alleged misinterpretation of the applicant's evidence;
c)at paragraph 6 of the applicant's supplementary submissions the extract of Dr Appadurai's Affidavit reproduced is not an accurate reproduction;
d)the portions of the evidence cannot be viewed in isolation and, as a whole, it is evident that the essential elements of the evidence were conveyed to the Tribunal;
e)Dr Appadurai’s Affidavit indicates that the applicant's evidence was variously that:
i)the applicant was not harmed in the camp .but could not use the phone and his teeth were extracted. At first instance the interpreter conveyed only that the applicant was not hurt but his teeth were taken out. The applicant noted that he was not allowed to speak to his mother and this evidence was conveyed to the Tribunal;
ii)the applicant was only able to speak when in hospital and because of that had his teeth extracted. This was accurately conveyed by the interpreter;
iii)they had not taken his teeth out but would not allow him to speak to his mother. While the interpreter originally interpreted this evidence as “they won't allow me to talk to my mother in phone. I can’t talk in the phone” the Tribunal asked why his teeth were taken out and the evidence was clarified in that the interpreter stated “they didn’t take the teeth out, if I go to the hospital then only I can talk”.
iv)the actions were not harassment but it was like harassment, they wouldn't let him go anywhere. The substance of this was conveyed by the interpreter;
v)the applicant did not know how to explain and the interpreter was not understanding what he was saying. This again was accurately translated; and
vi)“No. It was good teeth. To harm me”. This was interpreted as “it was good teeth but they pulled out to harm me”. This was an accurate interpretation of the applicant's evidence when viewed in context of the Tribunal's specific and direct question, asked for the purpose of clarifying the applicant's evidence. The first respondent notes the applicant takes no issue with the interpretation of the question. The Tribunal's question was “...you say that in the camp you had teeth taken out. Was it because you had bad teeth or was it because you had a toothache. Simple question, yes or no”;
f)furthermore, it cannot be maintained that “the interpreter was trying to fix up the miscommunication which occurred earlier without actually indicating to the Tribunal that he had made the error in interpretation”. The Reinterpreted Tribunal Hearing Transcript makes it clear that, at one point the interpreter sought clarification from the applicant and subsequently advised the Tribunal that “he is saying I'm not understanding”;
g)the applicant's evidence at hearing was confused and, despite the assertions now made by the applicant in relation to the meaning of the evidence given at hearing, it is not apparent that any error in interpretation occurred. This is supported by the following:
It seems, from my notes, that communication with … [the applicant] was difficult right from the beginning. I am unable to say whether this was purely an interpretation issue or not but even from my initial drafting of his Statement of Claim there were frequent changes which he wanted made.
Reading through the transcript you provided me of what took place in the Tribunal (and my hand-written notes from the file) I recall the difficulties which arose out of the issue of whether … [the applicant] had had teeth removed and whether the removal of teeth was as a result of dental treatment or whether the teeth were removed as part of the ill-treatment and torture he claimed to have suffered. From the transcript, it is still not clear to me whether Ajanthan actually had teeth removed or not.
…
It seems to me, however, that … [the applicant’s]evidence, even as given in the translation given to me by you, is not clear at all whether he actually had teeth removed or not. I recall the Tribunal Member being understandably sceptical about whether a person would have forgotten an incident like this, as claimed by … [the applicant] when he was asked why he had not told me about it or raised it in the DIEP interview.
(See Annexure 3 to the affidavit of Ellen Tattersall filed 13 May 2016, being an email of 15 April 2016 from Mr Lang to the applicant’s solicitor);
h)the post-Tribunal Hearing submissions made a direct claim that the pulling out of the applicant's teeth was strong evidence of real or actual torture being inflicted on the applicant: CB 144. It cannot be contended (as it is submitted in ground one) that the Tribunal misunderstood the applicant's claims, when the written submissions of the applicant made the precise claim which the Tribunal did not accept as occurring;
i)Mr Lang's Affidavit deposes to the fact that he spoke to the applicant after the Tribunal Hearing in relation to the preparation of written submissions to the Tribunal but did not discuss the issue of the applicant’s teeth: Lang Affidavit at [9];
j)the fact that the applicant’s migration agent relied on the evidence given at Tribunal Hearing that was allegedly misinterpreted does not demonstrate jurisdictional error in the Tribunal Decision; and
k)the migration agent's failure to have obtained specific instructions on the issue prior to making submissions to the Tribunal can amount to no more than negligence on the part of the migration agent. No jurisdictional error is however revealed in circumstances where it is well established that the negligence of a migration agent will not be sufficient to overturn a Tribunal's decision: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510.
Consideration – ground one
Adverse credibility findings might involve jurisdictional error where an applicant was denied procedural fairness or they are made on an illogical or unreasonable basis: SZVAP & Anor v Minister for Immigration & Border Protection & Anor [2015] FCA 1089; (2015) 233 FCR 451; (2015) 67 AAR 376 at [20]-[21] per Flick J; Minister for Immigration & Citizenship v SZRKT & Anor [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [78] and [119]-[121] per Robertson J. That is, the error must be one going essentially to the jurisdiction of the Tribunal: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J; SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [27]-[31] per Flick J. Credibility findings are otherwise essentially matters of fact “par excellence” for the Tribunal and not reviewable by the Court on an application for judicial review: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J.
Errors in interpretation:
a)may give rise to a denial of procedural fairness, specifically in cases involving interpretive error where justice may not be seen to be done: WALN at [29] per Ryan J; SZRMQ at [5]-[9] per Allsop CJ; and
b)do not assist the Tribunal in assessing credibility and may lead to adverse credibility findings: Perera at [49] per Kenny J, which can be “fatal” to an application for review before the Tribunal: Perera at [47] per Kenny J.
In SZRMQ Allsop CJ at [5] and [7] observed as follows:
5. Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.
7. Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate…
As was further observed in SZRMQ at [24]-[25] per Allsop CJ:
The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process… fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done.
…
The preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.
Similar views were expressed in SZRMQ at [67]-[69] and [72] per Robertson J as follows:
67. …the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant's words had not been mistranslated or, in the case of a non-translation, had been translated…
68. The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
69. If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
72. …where the errors are intermittent, care must be taken to evaluate the overall fairness of the hearing as well as the individual instances in order to assess the quality of the process and whether it amounts to the applicant having had a reasonable opportunity to be heard and to present his or her claim.
In Perera at [45] per Kenny J the Federal Court said:
The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision
In SZRMQ the above passage from Perera was referred to and explained at [22] per Allsop CJ:
Perera at 22-23 [38]-[41] referred to the interpretation being sufficiently incompetent that the applicant was prevented from giving his evidence. In Perera at 23-24 [45]-[46] it was clear, however, that Kenny J was referring to matters of significance involving important issues, not to a complete incapacity to interpret.
One need not prove a complete incapacity to interpret; rather a significant misinterpretation would suffice: SZRMQ at [67]-[69] per Robertson J.
Similar observations to those in SZRMQ were made in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 (“VWFY”) at [27] per Finkelstein J where the Federal Court said:
My general impression is that no one error or deficiency is so severe as to show that the interpreter or the interpretation was of such poor quality that the appellant was effectively deprived of his right to appear. But, when one steps back and looks at the hearing as a whole and asks whether the appellant received a fair hearing, I think the answer is that he did not. The combination of insufficient and incomplete translations, as well as the clear factual errors on the part of the interpreter, which the appellant was fortunately able to correct in some instances, suggests that the appellant had no real opportunity to express himself and fully answer questions put to him by the tribunal. This fails to achieve the tribunal's objective of providing a fair and just hearing.
Although delivered subsequent to the hearing of the Amended Judicial Review Application, in the judgment in Gill v Minister for Immigration & Border Protection & Anor [2017] FCAFC 51; (2017) 250 FCR 309; (2017) 71 AAR 525 (“Gill”), the Full Court of the Federal Court considered the importance of a single error, in particular whether the Tribunal misunderstanding that the applicant referring to “rizolos” as “risotto”, when he in fact was referring to “rissoles”, contributed to an adverse credibility finding and whether the Tribunal decision denied the applicant procedural fairness, or was illogical. While the primary Judge found the Tribunal had misunderstood the applicant, the error was not held to be material. The Full Court of the Federal Court disagreed and in Gill at [71]-[72] per Griffiths and Moshinsky JJ stated:
The mishearing and miscommunication formed part of the basis for the Tribunal's adverse conclusions concerning the genuineness of the work experience letter and the appellant's credibility. The Tribunal's findings concerning risotto were not supported by logical grounds and lacked any probative evidence. They were predicated on a fundamental misunderstanding of the dish to which the appellant's oral evidence related. Because the Tribunal erroneously believed that the appellant's evidence was directed to risottos, it disbelieved him when he said that he prepared the dish, which he described as “rizolos”, using rice and flour. Moreover, this error also contributed to the Tribunal's adverse credibility finding based upon its belief that the appellant could name only one of the popular dishes served at the Bistro.
Applying the approach of Crennan and Bell JJ in SZMDS, we consider that it was not open to the Tribunal to make the adverse findings which it did relating to this aspect of the appellant's evidence. That was because the Tribunal had a critical misunderstanding that the appellant's evidence was directed to “risottos” when, in fact, it was not.
As is made manifest by Gill a single error in relation to a matter which is subsequently, and critically, used to make adverse credibility findings can give rise to jurisdictional error in a tribunal decision. Likewise, it can be implied from the remarks made in VWFY at [27] per Finkelstein J that one error or deficiency in interpretation can, if sufficiently egregious, deny the applicant a fair hearing. So too in SZRMQ where:
a)reference is made to “the character” of the misinterpretation, juxtaposed against the “frequency” of misinterpretation: SZRMQ at [25] per Allsop CJ; and
b)the “significance of the error” is juxtaposed against the “significance of the … errors”: SZRMQ at [68] per Robertson J.
The Court therefore does not agree with the Minister’s submission that because only part of the Tribunal Hearing Transcript is relied upon by the applicant to establish misinterpretation, that that does not, or should not, when viewed in its totality, give rise to jurisdictional error.
It is necessary for the applicant to put before the Court evidence supporting a material error in interpretation of the applicant’s evidence to the Tribunal: SZRMQ at [17] per Allsop CJ. The applicant relied upon the Re-interpreted Tribunal Hearing Transcript as evidencing a material error or errors in interpretation.
It is plain in this case that there was on occasion both:
a)misinterpretation of; and
b)a failure to interpret,
what was said by the applicant at the Tribunal Hearing.
Examining the Reinterpreted Tribunal Hearing Transcript it is not, as was submitted by the applicant, clear that the applicant intended to convey that he was pretending to have a toothache in order to be transported to hospital so that he could obtain access to a mobile phone to speak to his mother. Prior to the Tribunal asking “Why did they take your teeth out … ?”, both the evidence of the applicant as originally interpreted, and as reinterpreted, is confusing, and arguably suggestive of the applicant having had teeth extracted at the Mannar Camp and having to go to hospital as a consequence. The real difficulty commences, however, with the Tribunal asking “Why did they take your teeth out …?” It is pertinent to observe that whoever “they” were was not clarified by the Tribunal, and in both the interpretation and reinterpretation the applicant then uses the unclarified “they” to refer to what happened to his teeth.
When the Tribunal asked, for the first time “Why did they take your teeth out … ?”, the interpreter only interpreted part of the applicant’s answer relating to his not being allowed to talk on the phone to his mother, and did not interpret that part of the applicant’s answer in which he expressly said “They didn’t take my teeth out”. Unsurprisingly, the Tribunal again asked (for a second time) “Why did they take your teeth out …?” The applicant’s response to that question is interesting: the first thing that he says is “Can you understand what I am saying.” That is obviously a remark which might equally be directed at the interpreter as the Tribunal. The applicant then goes on to say “ … They didn’t extract my teeth”, which is relatively accurately translated as “They didn’t take the teeth out”, followed by “If I go to the hospital then only I can talk”, the latter in context obviously referring to the applicant being able to talk to his mother. Given that the interpreter relatively accurately interpreted what was said by the applicant as to his teeth not being taken out the Tribunal’s next question is curious: it was “Did they take your teeth out because you had bad teeth or you had a toothache? Is that why they took your teeth out?” The applicant’s immediate response indicates that he is not satisfied with what he thinks is being conveyed to the Tribunal, as the applicant says “Please explain properly what I am saying.” The applicant then goes on to deal with the issue of harassment upon his return to Sri Lanka in the context of his not being allowed to use a telephone, and the issue of the extraction of the teeth is then picked up a little later when the Tribunal returns to the question of whether the applicant has “ever been harmed for reasons of your race or your nationality and so on”. The Tribunal then says “You said you weren’t harmed in the camp but they took your teeth out. Were you suggesting that that was some form of torture or are you telling me that they actually took care of your teeth?” The applicant’s response dealt with the issue of harassment. He also said “You don’t understand what I am saying.” That part of the response was, based on the Reinterpreted Tribunal Hearing Transcript, not relayed to the Tribunal, and the interchange which follows ends with the applicant saying “You don’t understand what I am saying”, which the interpreter interprets as “He is saying I’m not understanding.”, meaning that the interpreter was not understanding what the applicant was saying. This confusion leads the Tribunal Member to ask what he said was a “simple question”. The simple question is prefaced by the statement “You say that in the camp you had teeth taken out”, followed by the question “Was it because you had bad teeth or was it because you had a toothache. Simple question, yes or no.” The applicant responds by saying “No. It was good teeth. To harm me”, which the interpreter interpreted as “It was a good teeth but they pulled out to harm me.” It is immediately evident that the words “but they pulled out” were not words used by the applicant and had been added by the interpreter.
Allowing for the fact that, at least initially, the evidence concerning the applicant’s teeth and their extraction in the Mannar Camp is confusing, the factual context in which the issues raised by ground one fall to be considered is as follows:
a)the applicant said that his teeth were not taken out, but that this was not initially interpreted by the interpreter, and therefore not evidence before the Tribunal;
b)when the Tribunal asked for the second time why the applicant’s teeth were taken out, the applicant said for a second time that his teeth were not extracted, and the interpreter said that the applicant’s teeth were not taken out, but the Tribunal’s question would appear to indicate that the Tribunal was still operating on the basis of the first answer and not the second answer because the Tribunal’s next question relates to why the teeth were taken out, which, after some somewhat confused evidence which did not relate to the extraction of the teeth directly, the Tribunal then repeated, not once, but twice, not in identical terms, but in substance to the same effect, that is, that the teeth were extracted;
c)the applicant does not expressly repeat his assertion that the teeth were not pulled out, but the interpreter tells the Tribunal that “good teeth” were “pulled out to harm” the applicant, in circumstances where the applicant did not say that the teeth were pulled out; and
d)all of the above occurs in circumstances where it is open to this Court to also infer that the applicant was asserting, on at least two occasions in the short extract which is the Reinterpreted Tribunal Hearing Transcript, that the interpreter was either not understanding or not explaining properly what the applicant was saying.
The fact that the applicant’s migration agent made the post-Tribunal Hearing submissions in terms which reflected the interpretive errors referred to above does not constitute negligence on the part of the migration agent, such that any denial of procedural fairness by reason of the interpretive errors is of no effect. Indeed, the applicant’s migration agent in making the post-Tribunal Hearing submissions laboured under the same interpretive errors as ultimately affected the Tribunal Decision and which appear to have affected the Tribunal during the Tribunal Hearing. The migration agent’s post-Tribunal Hearing submissions therefore simply constitute a further iteration of the interpretive errors, and for the Court to ignore that fact would be to compound the denial of procedural fairness suffered by the applicant before the Tribunal.
It is plain that:
a)the interpreter ultimately did not convey the applicant’s evidence that he did not have his teeth extracted;
b)the Tribunal, on the basis either of a failure to interpret, misinterpretation, or a failure to correct a failure to interpret, or all three of the above, ultimately fundamentally misunderstood what the applicant’s evidence was concerning the extraction of his teeth, that is, that they were not in fact extracted;
c)the result of the misinterpretation or failure to interpret or failure to correct a failure to interpret, did not allow, or result in, the applicant’s evidence being fairly conveyed to the Tribunal: the substance of what the applicant said as to his teeth not being extracted was not ultimately conveyed to the Tribunal: SZRMQ at [9] per Allsop J; and
d)the above “critical misunderstanding”: Gill at [72] per Griffiths and Moshinsky JJ, or “insufficient and incomplete” interpretation: VWFY at [27] per Finkelstein J, contributed in a not insignificant manner to the Tribunal’s adverse credibility findings concerning the applicant.
The credibility findings made by the Tribunal may have affected the Tribunal Decision because it cannot be said that the credibility findings made, which were in not insignificant part based upon the interpretive errors set out above, would have been made if the applicant’s evidence had been correctly interpreted, and that that may have had the consequence that the Tribunal may have determined the matter differently. It is, of course, not to say that the Tribunal would have done so, but it could have done so, and for present purposes that is sufficient.
It follows that ground one of the Amended Judicial Review Application is made out, and that the Tribunal Decision is affected by a failure to afford the applicant procedural fairness as a consequence of the interpretive errors referred to above, and that the Tribunal Decision is affected by jurisdictional error. That jurisdictional error is sufficient to vitiate the Tribunal Decision and entitle the applicant to prerogative relief.
Ground three
Ground three of the Amended Judicial Review Application is as follows:
The Tribunal committed jurisdictional error when it held that the applicant was lying about the nature of the Mannar detention camp when the delegate accepted that it was a detention camp and not a welfare camp (CB 89-90).
Particulars
i) Even though the delegate stated in his decision record that the applicant had been in a ‘welfare’ camp in Sri Lanka, it is submitted that what he meant to say was ‘detention camp’ and this was arrived at reading the deduction he made prior to the sentence (CB 89, 90).
ii) The Tribunal committed an error when the Tribunal mistakenly thought that the delegate had found that the Mannar camp was a welfare camp and not an army camp (Affidavit Ng-transcript page 5 line 10-15).
Applicant’s submissions
The applicant’s submissions in relation to ground three of the Amended Judicial Review Application are as follows:
a)the Tribunal committed jurisdictional error in finding that the applicant was lying about the nature of the Mannar Camp even where the Delegate had accepted that it was a detention camp, and not a welfare camp;
b)though the Delegate’s Decision stated the applicant had been in a “welfare” camp in Sri Lanka, what was meant, when reading the conclusion made in a prior sentence, was “detention camp”: CB 88 and 90;
c)evidence going to support the applicant’s claim of being held in a detention camp was not raised as an issue and the Tribunal further accepted the presence of an “army camp” within the Mannar Camp;
d)the Tribunal’s findings were prejudiced and tainted by the early judgment of the applicant’s credibility and such conclusion carried on throughout the case and tainted the Tribunal’s capacity to decide objectively as evidenced in the Tribunal erroneously finding the applicant to be an internal displaced person: CB171 at [76]: Transcript, page 4 at line 35; and
e)the cumulative finding of credibility in grounds one and three respectively were based on wrongly understood facts, insignificant matters and no basis.
At hearing Counsel for the applicant submitted ground three was also a credibility ground, and that the Tribunal had departed from the Delegate’s Decision finding that the applicant was held in a detention camp by stating it was a welfare camp.
Minister’s submissions
The Minister’s submissions in relation to ground three of the Amended Judicial Review Application are as follows:
a)it is not apparent that the Tribunal made any finding in relation to the classification of the Mannar Camp; and
b)the classification of the Mannar Camp as either a detention camp or welfare camp was of no consequence to the Tribunal Decision given its findings at CB 170-171 at [74] that whilst in the Mannar Camp:
i)the applicant was detained;
ii)the applicant was questioned about his links to the LTTE;
iii)the applicant was not permitted to communicate with his mother; and
iv)documents were taken from the applicant as claimed,
and that is confirmed by the fact that the Tribunal made the above findings, having immediately beforehand referred to the submission concerning whether Mannar Camp was a detention camp or a welfare village, with the Tribunal then going on to accept the above matters “irrespective” of whether Mannar Camp was a detention camp or a welfare village: CB 170-171 at [74].
Consideration – ground three
In the Delegate’s Decision the Delegate referred to the Mannar Camp firstly as a “welfare” camp, and later as a “detention” camp: CB 87 and 89-90. The Tribunal raised an issue with the evidence of the applicant when asking the applicant to address the nature of the Mannar Camp:
So the documents that you provided to the department indicate the camp was actually a welfare camp. So that suggests to me it’s actually there to protect. It’s not like a prison. It’s there to protect refugees or people who have been displaced.
Tribunal Hearing Transcript, page 9 at lines 21-24.
In response the applicant reiterated the Mannar Camp was a detention camp, and while it was referred to officially as a welfare village, it was in fact a detention camp. The applicant’s migration agent provided evidence in the form of a report from Amnesty International to support this point: CB 170-171 at [74].
The Tribunal provided the opportunity for the applicant to address these issues, and he did so in the Tribunal Hearing: CB 170-171 at [74]. The Tribunal expressly stated it had considered the submissions from the applicant: CB 170 at [74]. The applicant was thus on notice of the issue in relation to the nature of the Mannar Camp, and provided with an opportunity to deal with the issue, and the Tribunal has made a conclusion based on a consideration of the evidence and submissions as to the nature of the Mannar Camp.
When making findings as to the applicant’s credibility the Tribunal made no reference to the applicant’s accounts of his time at the Mannar Camp, but rather referred, at CB 169-170 at [70] to the applicant having:
variously claimed that he had forgotten to mention certain claims, or that he had not been asked about certain things, or that he could not express all the things that happened to him, or otherwise sought to explain these things in other ways such things… the late addition of the teeth extraction torture claim or the claim that his parents provided money, food and support for the LTTE…his response evasive when it asked the applicant why his teeth were taken out…in his statutory declaration he claims that in March 2008 he decided to leave …[name of home village deleted] to go by boat to a government controlled area in the Mannar District, whereas at the hearing the applicant claimed that at that time he tried to leave Sri Lanka and the boat he was on when it broke down was on its way to India.
The Tribunal accepted the applicant was detained in a camp: CB 170-171 at [74]. The very fact the Tribunal did not specify the nature of the camp suggests the Tribunal did not believe that determining the nature of the camp was relevant. In any event, the Court does not believe the nature of the Mannar Camp, and whether it was properly characterised as a welfare camp or detention camp, had any impact on the Tribunal Decision for the reasons set out hereunder:
a)firstly, the Tribunal at CB 170-171 at [74] accepted what the applicant said had occurred at the Mannar Camp:
The Tribunal accepts that irrespective of that, while in the camp, the applicant was questioned by the Sri Lankan authorities who suspected the applicant may have been associated with, or otherwise had relevant links with, the LTTE…At the particular camp… The Tribunal accepts he was questioned about any links or activities with the LTTE… also accepts that while at this camp, the applicant was not permitted to communicate with this mother, and that his documents were taken as he claims.
b)secondly, the Tribunal considered all the evidence of the applicant and held at CB 170-171 at [74]:
that the relevant authorities did initially have a suspicion about the applicant and may not have believed his denial of association with the LTTE… this is not unusual or out of the ordinary as the authorities detained many thousands of persons who they initially suspected of having some link or association with the LTTE.
c)thirdly, the use of “detained” at CB 170-171 at [74] suggests the Tribunal was giving the benefit of the doubt to the applicant, and nevertheless proceeding on the basis his time at the Mannar Camp was involuntary; and
d)fourthly, in the Court’s view the Tribunal made no conclusive finding on the nature of the Mannar Camp. But even if the Tribunal did so, it then went on to make findings regarding what occurred there and whether those matters satisfied the requirements for the grant of a Protection Visa. For those purposes the nature of the Mannar Camp was irrelevant.
In all of the above circumstances, the Court finds the applicant has not made out ground three.
Ground seven
Ground seven of the Amended Judicial Review Application is as follows:
The Tribunal committed jurisdictional error by relying heavily on insubstantial materials to the applicant’s claim to find the applicant not credible.
Particulars:
The tribunal relied on not significant issues to attack the applicant’s credibility and find the applicant not credible. The issue was whether he was working or not working. This is insignificant and irrelevant to his protection visa claims yet the Tribunal relied heavily on this fact to find the applicant was not credible.
Applicant’s submissions
The applicant’s submission in relation to ground seven of the Amended Judicial Review Application is that the Tribunal committed jurisdictional error by relying heavily on insubstantial materials to the applicant’s claim to find the applicant not credible. The applicant provided no further particulars of ground seven in the outline of submissions nor was the ground expanded upon in oral submissions.
Minister’s submissions
The Minister’s submissions in relation to ground seven of the Amended Judicial Review Application noted that the ground is not addressed in the applicant’s outline of submissions, and as such, assumed that the ground had been abandoned, and was therefore not addressed.
Consideration - ground seven
The Tribunal Decision dealt with the applicant’s employment status at CB 157-158 at [19] and [24] as follows:
19. The Tribunal referred the applicant to his claim that he could not find work in Sri Lanka, although he had also claimed that he had worked as a carpenter for his uncle. The Tribunal noted this inconsistent information raises questions as to his credibility. The applicant said that it appears that he was lying but that he had forgotten that he had been working…
24. The Tribunal asked the applicant whether he was able to find and maintain employment in Sri Lanka. He said he was always able to work and he did not experience unemployment...
The Tribunal Decision considers the credibility of the applicant at CB 169-170 at [67]-[70]. The Tribunal notes the applicant was evasive when responding to questions and inconsistencies in his oral and written submissions, noting expressly the claims regarding his tooth extraction and parents support for the LTTE. No express reference is made to the inconsistent accounts of employment of the applicant when discussing the Tribunal’s reasons for rejecting much of the evidence as unreliable. If the Tribunal had relied “heavily” (as is asserted in ground seven) on the question of the applicant’s employment in making determinations of credibility, the Court considers that the Tribunal would have dealt with this in considerably more detail than it did.
The claim the applicant’s work had no significance or relevance to the Protection Visa claims is unfounded. The Tribunal asking questions about the employment of the applicant, and having regard to available country information, was necessary in the Tribunal’s consideration of whether the applicant had grounds for a Protection Visa. In that regard it was relevant for the Tribunal to observe, as it did at CB 174 at [84] and 176 at [93] that:
84. … the applicant may have faced some difficulties in Sri Lanka during the time of the civil war. However, it observes that he appears to have been able to continue to make a living and was not denied the capacity to work…
93. …The Tribunal considers, in the absence of any evidence to the contrary, the applicant will be able to find and resume paid employment in Sri Lanka upon returning there and so therefore will be able to pay the fine by instalments if he has no savings or money by which to pay the fine.
In the Court’s view, there is no basis for the applicant’s claim that the Tribunal had regard to irrelevant material, namely the applicant’s employment status, to such an extent the Tribunal’s exercise or purported exercise of power constituted a jurisdictional error of a kind referred to in Plaintiff S157/2002 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Had the Tribunal not considered the applicant’s previous and prospective employment in Sri Lanka that may have been grounds for the Tribunal being said to have made a jurisdictional error by not having regard to relevant material when considering the applicant’s Protection Visa application.
The manner in which the Tribunal dealt with the applicant’s employment history does not establish reliance on “insubstantial”, “insignificant” or “irrelevant” material in the assessment of the applicant’s credibility.
The Court finds the applicant has failed to make out ground seven.
Conclusion and orders
The Court has concluded that:
a)ground one of the Amended Judicial Review Application has been made out, and that that ground establishes jurisdictional error in the Tribunal Decision by reason of a denial of procedural fairness arising from errors in interpretation; and
b)grounds three and seven of the Amended Judicial Review Application have not been made out,
and it follows from the establishment of jurisdictional error in relation to ground one that the applicant is entitled to prerogative relief. There will therefore be orders that a writ of certiorari issue quashing the Tribunal Decision, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant to the Tribunal on 10 February 2014 according to law.
The Court will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 6 March 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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