AQV15 v Minister for Immigration

[2015] FCCA 2348

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2348

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Protection (Class XA) visa – whether the applicant was denied a fair hearing by reason of a failure to adequately interpret – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

SZRNQ v Minister for Immigration and Border Protection [2013] FCAFC 142

Applicant: AQV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1225 of 2015

Judgment of: Judge Street

Hearing date: 28 August 2015

Date of Last Submission: 28 August 2015

Delivered at: Sydney

Delivered on: 28 August 2015

REPRESENTATION

Counsel for the Applicant: Mr T Holmes

Solicitors for the Applicant: AC Law Group

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The amended application is dismissed. 

3. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1225 of 2015

AQV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 7 April 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Iran and the applicant’s application for protection, made on 30 November 2012, was rejected by the delegate on 6 September 2013.

2. On 18 December 2014, the applicant lodged an application for review with the Tribunal.  The applicant received an invitation to appear before the Tribunal by letter dated 2 September 2014 inviting attendance on 13 January 2015 consistent with the statutory regime.  In response to that invitation to hearing, the applicant specified that he needed an interpreter and specified that the language he wanted the interpreter to attend in was Farsi.  The applicant had indicated in his original interview that he spoke both Arabic and Farsi, which it is common ground was Persian. 

3. The applicant appeared at that hearing in response to the invitation on 13 January 2015 to give evidence and present arguments and was assisted by an interpreter in the Farsi language and was also represented by his registered migration agent.  At the commencement of the hearing in the Tribunal, the member relevantly said:

   Today we have the assistance of a professional Farsi interpreter.  Her job is to interpret what you say to me and what I say to you.  When you speak through an interpreter, it’s very important you stop after each sentence so the interpreter can interpret what you are saying.  If you speak for a long time without stopping, it makes her job very difficult.  If you forget to stop, I will remind you or ask her to stop you.  Do you have any problems understanding the interpreter today? 

   A:   Not really.

4. The Tribunal then proceeded to give an explanation:

   If at any time you have any problems in understanding the interpreter, it is very important that you let me know immediately… 

5. After referring to some further matters in relation to what was to occur the Tribunal said:

   Do you have any question about what I have just explained to you?

6. The applicant responded, “No.”  The applicant had claimed a fear of persecution by reason of his Arab ethnicity, imputed political opinion by having participated in gatherings supporting the rights of Arabs, membership of a particular social group, being failed asylum seekers, western returnees, and conversion to Christianity. 

7. In the applicant’s statutory declaration in support of the application for protection, he identified two particular incidents, one in 2011 and one in 2012.  The member started asking questions about the first incident and, relevantly, a suggestion that someone was required to sign a statement.  The applicant said that it was his dad.  The following exchange then took place:

   M What is it that he signed?

   a he wrote in a statement that I accept this is the last crime that my son has committed and I am not happy with it and I promise that I won't allow him to do that again. I am writing this statement for him to be released. I have tried to explain it in Persian. My Persian now is good enough and my Arabic and the interpreter here from my area we don't have here because the accent is different. I can understand Lebanese, Iraqi but not much. But if interpreter from my area then I can understand. But Persian, I studied Persian, I understand Persian better than-

   M Are you having problems understanding the interpreter?

   A No, now is ok. Sometimes. She is confused now because I explained with Persian and I didn't know how to interpret in Persian 100% right. So now she got it.

   M Why did you ask for an Arabic interpreter?

   A I don't think they have- sometimes when they bring me an Arabic interpreter from Lebanese or like that, sometimes I don't understand.

   I Can I explain a little bit here?

   M No. Remember when I said to you in the beginning if you have any difficulty understanding the interpreter it's very important that you let me know straightaway.

   A Ok, she's got it now.

   M Is there anything up until now that you don't understand?

   A No, I got it.

8. There was no other issue raised by the applicant in relation to the interpreter or any difficulty identified during the hearing in understanding the interpreter or in communicating with the Tribunal. 

9. In the course of the hearing, the Tribunal did explore the applicant’s claim in relation to Christianity and raised concerns in relation the applicant’s credibility in respect of the applicant’s claim that he had converted to Christianity.  The following exchange took place:

   M I'm talking about the course you attended in 2014. The course had four classes. You attended three of the four classes. This was after you received the letter of the Tribunal informing you of this hearing. You claim that you have occasionally attended other classes to study the Bible. You claim you have your own copy of the Bible and you have started reading it. Your knowledge of the Bible is very poor. You didn't even know basic questions like, you couldn't correctly answer basic questions like 'What's the difference between the Old and New Testament'. You haven't been baptized, even though you claim you are a Christian. So all of these issues raise real concerns in relation to your motivation for going to the Baptist church and attending classes and courses. It also raises concerns for me in relation to the credibility of your claim that you have now converted to Christianity.

   A I request from Member to put aside my Christianity belief because this is something personal that it has nothing to do with this because I have accepted God.

   M I'm not sure I understand that. Are you saying that you are now not making a claim that you have converted to Christianity?

   A Yes, I am.

   M Maybe you want to have a chat to him before making that claim.

   I Sorry?

   M I'm just talking to Ms Kumar.

   A This is something that I have satisfied myself that all my questions have been answered that Jesus is my Saviour and He is the Son of God.

10. The grounds of the amended application that are pressed are as follows:

    1. The applicant has been denied a fair hearing, s425 Migration act 1958.

    Particulars

    -   The Applicant has a Persian interpreter where his mother language is Arabic. The applicant has had difficulties understand the interpreter time to time during the hearing. Transcription P.29.30

    …

    3. The Tribunal asked itself the wrong question in whether the applicant has a well-founded fear because of his imputed political opinion.

    Particulars

    a. The Tribunal asked if the applicant’s fear is well-founded because of his activities in Australia. The Tribunal was required to ask whether the applicant has a well-founded fear of persecution on account of his actual or imputed political opinion. (CB: 227 [123-125])

    4. The tribunal fell into error by making a decision that was not justified by evidence or material before the tribunal.

    Particulars

    a. The Tribunal did not accept that the applicant was a genuine convert to Christianity and did not accept that he has a commitment to the practice of Christianity in the foreseeable future. (CB: 222 [98]).

    b. There was no material before the Tribunal to support this finding.

11. Mr Holmes of Counsel appeared for the applicant and did not press ground 2. 

12. In relation to ground 1, it is common ground between the parties that the correct principles to apply are identified in SZRNQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9] and at [15]. The real issue for this Court is whether the applicant had a fair hearing in relation to the alleged difficulties in respect of the interpreter.

13. Mr Holmes of Counsel sought to argue that the Tribunal made an adverse finding of credit and that it was possible that the difficulties with the interpreter had contributed to that adverse finding of credit.  It is clear that the Tribunal was alive to the applicant’s limited difficulty that was identified and taken into account as the Tribunal said: 

    47. The applicant then stated that he had difficulty explaining things because his Persian was not good enough. When asked whether he had any problems understanding the interpreter, he answered no. When asked whether there was anything previously said that he had difficulty understanding, he answered no.

14. This is not a case where the applicant was able to identify any particular matter that was the subject of inaccuracy in interpretation, nor is this a case in which the Tribunal did not explore the impact of the difficulty that had been raised by the applicant. I am satisfied that the applicant had a fair hearing and that the Tribunal conducted a genuine review under s.425, and that the interpretation was of a sufficient standard to ensure that justice was done. Ground 1 fails to make out a jurisdictional error.

15. In relation to ground 3, Mr Holmes of Counsel accepted that the Tribunal had dealt with the fear of imputed political opinion in the findings made at 118 and 119 as follows:

    118. In view of the above findings, and in light of the Tribunal’s finding that the applicant is not a credible witness, the Tribunal rejects all the claims made by the applicant and is not satisfied that he has a well-founded fear of Refugee Convention related persecution for any of the reasons put forward by him.

    119. Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal finds that there is no real chance that the applicant would be at risk of persecution on the grounds of race, actual or imputed political opinion, actual or imputed religion, membership of a particular social group or any other Refugee Convention reason if he returns to Iran now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a).

16. Mr Holmes of Counsel did not contend that those adverse findings could be the subject of challenge or that those findings were the subject of the wrong test.  The argument on behalf of the applicant focused on the reasoning of the Tribunal in relation to complementary protection where it was suggested that the Tribunal had confined itself to assessment of political activities in Australia by reason of what was said in para,125, relevantly:

    On the evidence before it, the Tribunal is not satisfied that the applicant has been involved in any political activities in Australia.

17. The difficulty with this argument is that it is clear from para.122 that the Tribunal had taken into account and had rejected the applicant’s claims in relation to his political activities in Iran and what flowed from them, as identified in relation to complementary protection.  It is in these circumstances that no jurisdictional error is made out by ground 3.

18. In relation to ground 4, the Tribunal dealt with the applicant’s claims and evidence in relation to Christianity between paras.86 to 97, following which the Tribunal made findings as follows: 

    98. Having considered the above claims, all the evidence and the applicant’s migration agent’s submissions, the Tribunal does not accept that the applicant has denounced Islam or that he would not go to a mosque if he returns to Iran. It follows that the Tribunal does not accept that he has informed his family or friends that he has converted to Christianity. The Tribunal accepts that the applicant has attended the Liberty Baptist Church at North Rocks and has attended Bible study classes. The Tribunal accepts that he has not been baptized. The Tribunal does not accept that the applicant is a genuine convert to Christianity. It follows that the Tribunal does not accept that he has a commitment to practice Christianity if he returns to Iran now or in the foreseeable future.

    99. For the reasons given herein, the Tribunal is not satisfied that the applicant’s attendance at Church and at Bible study classes are otherwise than for the purpose of strengthening his claims to be a refugee. Therefore, the Tribunal is required under s.91R(3) of the Act to disregard this conduct in its assessment of his well-founded fear of persecution.

19. Mr Holmes of Counsel drew attention to the evidence of the applicant in relation to Christianity and the exchange with the Tribunal and the possible construction that the applicant was seeking to maintain that he had converted to Christianity, rather than the answer being read that he was abandoning that claim.  I accept Mr Holmes’ submission that the exchange identified in respect of the Tribunal and the applicant was not sufficient to clearly identify an abandonment of that integer. 

20. However, I reject the contention that there was uncertainty as to what it was the applicant was referring to when he said, “Yes, I am.”  Read in the context of the earlier question from the member, it is clear that the applicant was seeking to say that he did not wish to maintain the claim that he had converted to Christianity.  That integer was dealt with by the Tribunal and those adverse findings were open to the Tribunal.

21. I accept, as Mr Holmes pointed out, that the answer provided by the applicant when he then said, relevantly, “Jesus is my saviour and he is the son of God”, is potentially consistent with the applicant having a Christian belief.  However, to make out ground 4, counsel for the applicant acknowledged that there had to be no evidence to support the finding or that the finding could be said to lack a logical foundation. 

22. This was a case where the Tribunal found the applicant not to be a credible witness (see para.118) and, in my opinion, the exchange between the Tribunal and the applicant in relation to Christianity is clearly evidence that the Tribunal thought was relevant in relation to his claims concerning Christianity.  That reasoning process was open and cannot be said to lack a logical foundation.

23. The Tribunal set out part of that evidence in its reasoning, both at 96 and 128, in relation to claims concerning his conversion to Christianity. The evidence of the applicant together with the reasoning identified in paras.86 to 97 clearly identifies an evidentiary foundation for the adverse finding in respect of the claim concerning Christianity. 

24. That adverse finding cannot be said to lack an evident and intelligible justification.  I am satisfied that that finding to the applicant in relation to Christianity has a logical foundation and was open on the evidence to the Tribunal.  It was a matter for the Tribunal to determine the credit of the applicant.  I find that ground 4 makes out no jurisdictional error.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 August 2015