AWN17 v Minister for Immigration

[2018] FCCA 372

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 372

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the applicant had a real and meaningful hearing – whether there was a breach of s.425 of the Migration Act 1958 (Cth) – whether the Tribunal breached the requirements of procedural fairness by reason of flawed translation during the hearing – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

Applicant: AWN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 624 of 2017

Judgment of: Judge Street

Hearing date: 15 February 2018

Date of Last Submission: 15 February 2018

Delivered at: Sydney

Delivered on: 15 February 2018

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Respondents: Mr J Pinder
MinterEllison Lawyers

ORDERS

1. Grant leave to the applicant to amend ground 1 of the amended application filed on 30 August 2017 so as to incorporate as additional particulars to ground 1, each of the sub paragraphs specified in paragraph 33 of the applicant’s submissions filed on 22 January 2018 and the Court dispenses with the need for the filing of a further amended application.

2. The amended application is dismissed.

3. The applicant pay the further costs of the first respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 624 of 2017

AWN17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 February 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. On 14 August 2014, the applicant commenced an application for a subclass FA 600 Tourist stream Visitor visa. On 18 August 2014, the applicant was granted an FA 600 visa valid until 8 October 2014 for a single entry. On 8 September 2014, the applicant arrived in Australia. It was on 1 October 2014 that the applicant lodged his application for protection.

3. On 10 July 2015, the delegate found the applicant failed to meet the criteria for the grant of a visa. The applicant provided his statutory declaration in support of his claims in which he identified his father having worked at the Bangladeshi Embassy in Iraq, Qatar and the Netherlands. The applicant alleged that his father had donated land to a local orphanage but had failed to complete the land transfer. The applicant alleged that he returned to Bangladesh to complete the transfer and was attacked by a Muslim neighbour. The applicant alleged he received a wound that required medical treatment. The applicant alleged that his brother-in-law reported the incident to the police. The applicant alleged that within a week, the neighbour and his group returned to the house and ransacked it.

4. The applicant alleged he returned to Qatar for work and organised his wife and daughter to stay with his sister at Chittagong City. The applicant alleged that on his return, he discovered his home had been burnt down. Three days after this, the applicant alleged a group of hooligans came to the applicant’s house and demanded money.

The Tribunal’s decision

1. On 21 July 2015, the applicant applied for review to the Tribunal. On 23 August 2016, the applicant was invited to attend a hearing. In the response to hearing, the applicant indicated that he wished for an interpreter who spoke Bengali and “not a Muslim, please”. The hearing record identifies that the applicant attended the hearing on 13 October 2016, consistent with the invitation sent on 23 August 2016 inviting the applicant to attend. The applicant appeared on that date to give evidence and present arguments. The applicant was assisted by a Bengali interpreter in the course of that hearing.

2. The hearing on 13 October 2016 has been the subject of an affidavit that has set out both the English and Bengali interpretation by the interpreter of what was said by the member and the English interpretation of what was said by the applicant in Bengali, when the applicant spoke other than in English.

3. The Tribunal in its decision dated 10 February 2017 identified the background to the application for review, and summarised the relevant law. The Tribunal summarised the applicant’s claims and evidence and relevantly, made adverse credibility findings in relation to certain of the applicant’s evidence.

4. The Tribunal in its reasons identified that during the hearing, the Tribunal discussed his background, his family, his employment and the reasons for leaving Bengali and why he fears returning to Bangladesh. It was in the context of those combined matters that the Tribunal observed that it found aspects of the applicant’s evidence to be vague, implausible, contradictory and unconvincing. The Tribunal observed there were significant inconsistencies in the evidence. The Tribunal noted that the applicant made new claims throughout the process. The Tribunal formed the view the applicant was fabricating his evidence as he was giving it, and the Tribunal had concerns in relation to his credibility and the veracity of the applicant’s claims.

5. The Tribunal proceeded to summarise the issues that gave rise to the adverse credibility findings. The first was by reference to the claim that almost a decade ago, his father donated land to a particular orphanage, but the land was not transferred and registered in the name of the orphanage. The applicant claimed that he was contacted in January 2013 with a request to complete the registration process, and he went to Bangladesh on 8 February 2013 to do so. The applicant filed a copy of the delegate’s decision with his application for review in which the applicant, during the interview with the Department on 6 July 2015 stated that his father donated the land to the orphanage in about 2008 or 2009. The Tribunal noted during the hearing, the applicant gave evidence that his father donated the land to the orphanage in January or February of 2010.

6. The Tribunal observed that these inconsistencies in the applicant’s evidence raised concerns in relation to the credibility of his claim that there was a dispute of the land in 2013. The Tribunal referred to raising the issue with the applicant, and the applicant responded that his mind was not working well, and it should be 2009. The Tribunal was of the view that if the applicant travelled to Bangladesh from Qatar in February 2013, for the purpose of registering the transfer of land, it would have been ascertained when the land was donated by his father, to the orphanage, and that he would be aware of that date.

7. The Tribunal referred to the applicant’s evidence in relation to his father having worked at the Bangladeshi embassy, and that his father retired in 2007 for medical reasons. The Tribunal found it implausible that his father would not have completed the legal process of transferring the land he donated to the orphanage, and having it registered in the name of the orphanage prior to his death in 2010. The Tribunal noted that when this issue was raised with the applicant, the applicant responded his father had wanted to give the land to the orphanage, and that the principal at the orphanage did not put pressure on the father to do so. The applicant said his father was a busy man. The Tribunal did not accept this explanation as the father had retired prior to 2009, when he claimed the land was donated. The Tribunal found it implausible that the applicant inherited his father’s estate in 2010, and that he had not resolved the issue of transferring land to the orphanage prior to 2013, particularly in view of the evidence that the applicant wanted to follow in his father’s footsteps by supporting the Buddhist temples and orphanages.

8. The Tribunal then referred to the incident that allegedly occurred on 13 February 2013, when a surveyor was attending to survey the land, and one of the Muslim neighbours interrupted them. The applicant alleged that an argument occurred and the group became violent. The applicant claimed he was injured when a particular person’s son threw a bamboo stick at him and hit him on the chin. The applicant claimed he had to seek treatment from a doctor, and stiches to his cut chin.

9. During the hearing, the Tribunal noted the applicant gave evidence that whilst the surveyor was surveying the land, an argument broke out and that it was the father, Mr X, who hit him on the face with a bamboo stick. The applicant stated that he suffered a cut on the chin and sought medical treatment at the clinic. The applicant alleged that he received four stitches from the cut and that he received prescriptions for five kinds of medication, including antibiotics and a mouth gargle to relieve the pain. The applicant alleged he went back to the doctor three days later and was told to continue with medication and it would be alright.

10. The Tribunal raised with the applicant the inconsistencies in his evidence in his visa application that Mr X’s son threw the bamboo stick at him, and his evidence to the Tribunal, that it was the father that hit him with a bamboo stick. The Tribunal noted that this inconsistency in his evidence raised issues in relation to the credibility of his claims. The applicant responded that he stated in his written evidence, that the father had hit him. The Tribunal noted this is not consistent with the evidence before the Tribunal. The Tribunal found the inconsistency raises a further concern about the credibility of the applicant’s claims.

11. The Tribunal then turned to the medical documents provided by the applicant, dealing first with a prescription dated 13 February 2013. The Tribunal noted that it prescribes nine types of medication. The Tribunal found it implausible that the applicant would have been prescribed nine types of medication, including antibiotics, for a cut on his chin. When the Tribunal raised that issue with the applicant and its concerns relating to the authenticity of the document, the applicant responded that if he could remember the names of the medicines, he would not have had these problems in his life. The applicant stated whatever medicine they gave him, he mentioned. The Tribunal found that the response by the applicant did not make any sense, and did not address the issue raised with him. The Tribunal was not satisfied that the prescription is an authentic document.

12. The Tribunal referred to a second medical certificate dated 22 February 2013. That record indicated that the applicant was under the doctor’s treatment from 13 February 2013 to 22 February 2014, in relation to an injury to the lips area. The Tribunal noted the applicant’s evidence to the Tribunal was that he sought medical treatment on 13 February 2014, in relation to the cut on his chin, and returned to the doctor three days later, and was advised to continue with the medication and three days later was 16 February 2013. The Tribunal noted that it raised this issue with the applicant and its concerns in relation to the authenticity of this document dated 22 February 2014. The applicant responded he was confident the date is a mistake and that the year should be 2013, not 2014. The Tribunal accepted that it is possible that a mistake was made in the writing of 22 February 2014 instead of 22 February 2013. The Tribunal observed however, the applicant’s response did not address the other issues raised by the Tribunal, and did not alleviate the Tribunal’s concerns. The Tribunal was not satisfied the medical certificate is an authentic document.

13. The Tribunal referred to supporting letters by the applicant, including a letter from a particular person dated “26/09/20” which stated that the particular person arranged for the applicant to go to the Government Register Office on 13 January 2013 to register the land. The letter purported to identify the attack incident, and that the applicant was wounded on the forehead and body. The Tribunal observed that that was not consistent with the applicant’s evidence, that the dispute arose as a result of a surveyor, and that the assault occurred on the land, that he was hit in the face with a bamboo stick, and had suffered a cut to his chin. The Tribunal raised this issue with the applicant, and its concerns in relation to credibility of his claims and the authenticity of the document, and the applicant responded that the letter refers to a different incident that occurred when he was on the way to the Government Register Office.

14. The Tribunal then raised with the applicant whether he was now claiming that he was attacked twice, and the applicant responded “yes”. The Tribunal raised with the applicant that this incident had not been mentioned in his visa application and during his interview with the Department. When the applicant responded that he could not change what he had said before, the Tribunal did not accept that explanation.

15. The Tribunal was of the view that if the applicant was attacked twice he would have said so in his visa application during the interview. Further, the Tribunal observed that he gave evidence to the Tribunal that the incident happened after 13 February 2013, whereas the letter identifies it occurring on 13 January 2013.

16. Thirdly, the Tribunal observed that the applicant gave evidence to the Tribunal that after he was assaulted by Mr X, he went to the clinic to seek medical treatment. No mention was made of going to the Government Register Office on that date.

17. Fourthly, the Tribunal observed that when another problem in his evidence was raised with him, the applicant subsequently stated he sought medical treatment at a hospital, was admitted to hospital and was not discharged until the following day when he went to the police station.

18. Fifthly, the Tribunal noted the applicant earlier gave evidence to the Tribunal that when the argument broke out between him and Mr X, the surveyor left and had not returned to the land to complete the job. The applicant stated that he had still not registered the land. The Tribunal observed it was highly unlikely that the applicant and the person who wrote the letter would have been on the way to the Government Register Office on 13 February 2013 to register the land without the surveyor’s report.

19. Sixthly, the Tribunal observed that the medical evidence claimed by him makes no reference to him being treated for injuries to his forehead or his body, as stated by the person who wrote the letter.

20. Seventhly, the Tribunal observed that the statement to the police makes no mention of the second assault whilst on the way to the Government Register Office. The Tribunal found it implausible that the applicant would have mentioned the first assault in his statement to the police and did not mention the second. The Tribunal was of the view the applicant changed his evidence at the Tribunal to fit with the details in the letter. The Tribunal was not satisfied the letter is an authentic document.

21. The Tribunal then dealt with the second letter and was not satisfied that letter was authentic. The Tribunal referred to the alleged complaint made by his brother-in-law and that the police knew about the incident and would take care of it. The Tribunal observed that no mention of returning to the police station was made in his visa application and that that raised concerns in relation to his credibility of this new claim.

22. The Tribunal made reference to the written statement by the applicant to the police station, and found it is not consistent with the applicant’s previous evidence to the Tribunal he was assaulted by Mr X and that he received medical treatment at the clinic. The Tribunal referred to raising this issue with the applicant, and that he responded that when he went to the clinic he was admitted there, and went to the police station the following day. The Tribunal observed that the applicant did not address the issue raised by the Tribunal in his response, and that these inconsistencies in his evidence raised concerns in relation to the credibility of his claims and the authenticity of the document.

23. The Tribunal referred to The First Information report dated 14 February 2013 and raised its concerns in relation to the authenticity of the document. The Tribunal noted the applicant’s response to the incident and when it was reported to the police the Tribunal found that the applicant’s explanation was not consistent with his earlier evidence to the Tribunal that he had read the supporting documents that he had provided to the Department, and was satisfied that the information in them was true and correct. The Tribunal raised this with the applicant, and the applicant responded he felt it was correct.

24. The Tribunal also raised an issue with the applicant in respect of problems with the supporting documents that he had provided the Department and concerns in relation to the authenticity of the documents. The Tribunal referred to the new claim made by the applicant during the interview with the Department on 6 July 2015, that the person who is alleged to have hit him with a bamboo stick on the chin, being that Mr X’s, people who ransacked the applicant’s home in December 2012. The Tribunal found the fact that applicant failed to mention this incident in December 2012 in his visa application raises concerns in relation to the credibility of this claim. The Tribunal noted that during the hearing the applicant gave evidence that the father, who is alleged to have assaulted the applicant with a bamboo stick, and that his group never entered the applicant’s house.

25. The Tribunal raised with the applicant the inconsistencies in the evidence that he had given, noting concerns in relation to his credibility, and the applicant responded that during the interview he was asked why he did not mention the two incidents, so he added that. The applicant stated they were always around his home and throwing things towards his home. The applicant stated they did not go inside his home or do anything. The applicant stated that they destroyed what was outside his house.

26. The Tribunal noted that when the applicant was asked what they destroyed, the applicant responded that they had a shed for chickens and garden or flowers and they destroyed those. The Tribunal found these new claims are not consistent with the applicant’s previous claims and found that the applicant’s response did not address the issues raised by the Tribunal. The Tribunal was of the view that if the applicant’s home was ransacked in December 2012, or alternatively, the shed for chickens and flowers in the garden were destroyed, the Tribunal expected that the applicant would have relocated his wife and child at that time without leaving them unprotected until March 2013. The Tribunal found this raised further concerns in relation to the credibility of the applicant’s claims.

27. The Tribunal referred to the applicant’s evidence in relation to when he left Bangladesh and that he had not returned to his village since he left after the incident of 13 February 2013. The Tribunal had made reference to the applicant asserting that on 16 January 2014 he had returned for a memorial service in his village. The Tribunal observed these raised inconsistencies in the evidence as an issue with the applicant and found that this raised concerns in relation to the credibility of his claims.

28. The Tribunal noted that it had the opportunity to observe the applicant over the lengthy period of time during the hearing and to discuss his claims with him. The Tribunal was satisfied that the applicant understood what was happening and was able to participate in the hearing in a meaningful way.

1. The Tribunal referred to the applicant’s overseas travel and the inconsistency was raised with the applicant and concerns in relation to his credibility. The applicant responded that if he was going on a personal tour, he would not have gone there and that he went there with a group. The Tribunal found the response did not address his concern. The Tribunal observed that the applicant had travelled to France and Switzerland in July of 2014. It was raised that, if the applicant had genuinely feared for his safety in Bangladesh, he would have sought asylum in Switzerland or France. The Tribunal noted his failure to do so raised concerns in relation to the credibility of his claims. The Tribunal noted the applicant responded that it takes about two or three days to “hop around” and that he was with friends on a short holiday and that he had to return with them. The Tribunal did not accept the applicant’s explanation. The Tribunal was of the view that the applicant’s conduct was not consistent with his claims.

2. The Tribunal summarised the balance of what occurred during the hearing and referred to country information. The Tribunal found the applicant is not a witness of truth. The Tribunal found the applicant had fabricated his material claims for the purpose of obtaining a protection visa.

3. The Tribunal did not accept the applicant was involved in the dispute or that he was assaulted. Because of this dispute, the Tribunal did not accept that the applicant was involved in a dispute with Mr X, the father, or alternatively, Mr Y and his people, and did not accept that the applicant was or is of adverse interest to any of them. The Tribunal did not accept any of the applicant’s claims that flow from that.

4. The Tribunal did not accept the applicant travelled to France with a tour group in July 2014 and was not able to get away from the group. The Tribunal found the applicant did not have any intention of seeking asylum when he went to France and Switzerland in July 2014. The Tribunal was satisfied that the prescription from the particular doctor dated 13 February 2013 and the medical certificate dated 22 February 2013, the statement dated 14 February 2013 from the police and the information report dated 14 February 2013 and the statement from two particular people dated 26 September 2014 are not authentic documents.

5. The Tribunal did not accept that Muslims will kill the applicant if he returns to Bangladesh and reoccupies his father’s land. The Tribunal accepted that the applicant may wish to continue financially supporting Buddhist temples and orphanages but was not satisfied this would lead to him suffering serious harm or significant harm.

6. The Tribunal referred to a societal discrimination and was not satisfied that this would amount to serious or significant harm. The Tribunal was not satisfied the applicant is at risk of serious harm or significant harm for reason of his race or relation if he returns to Bangladesh now or in the reasonably foreseeable future.

7. The Tribunal was not satisfied there is a real chance the applicant would suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

8. The Tribunal referred to having considered the applicant’s claims individually and cumulatively and all the evidence, and found that there is no real chance that the applicant will suffer persecution on the grounds of his race, religion or any other Refugees Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal found the applicant did not have a well-founded fear of persecution under the Refugees Convention and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

9. The Tribunal found that it was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant would suffer significant harm as defined in s 36(2A) of the Act. The Tribunal found the applicant did not meet the criterion of s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 3 March 2017. Mr Bodisco of counsel on behalf of the applicant identified one ground in the amended application that he maintained was arguable.

2. The Court took into account on 7 December 2017 the amended application ground 1 on which Mr Bodisco sought to rely and the explanation for the delay on an impressionistic basis and extended time for the filing of the application, affidavit evidence and submissions up to 21 December 2017.

3. The ground relied upon in respect of the amended application was further particularised in submissions by Mr Bodisco and the Court dispensed with the need for the filing of a further amended application and made an order treating the particulars identified in paragraph 33 and the subparagraphs of Mr Bodisco’s submissions as part of the particulars to ground 1 in the amended application. The principles in relation to whether there was a jurisdictional error of the kind alleged in ground 1 are not in dispute.

4. Ground 1 in the amended application is as follows:

   1. The Tribunal breached section 425 of the Migration Act and/or denied the Applicant procedural fairness

   Particulars

   The Tribunal breached section 425 of the Migration Act and/or the Applicant was denied procedural fairness in circumstances where the Applicant was not unable to give evidence and present arguments due to a flawed translation during the hearing, the Applicant speaking a Chittagong dialect of Bengali.

   a.

   Member - English - This Tribunal is an independent Tribunal and is separate from the Department of Immigration.

   Interpreter - Bangla - This Tribunal is autonomous. They have their own laws, it is not part of the government.

   b.

   Member - English - I have read these files and will take the evidence in them into consideration when I make my decision.

   Interpreter - Bangla - When Member will take a decision all evidence will be read and taken into account decision will be made according to that.

   c.

   Member - English - Law defines who a Refugee is and what Complimentary Protection is.

   Interpreter - Bangla - Law says who is a refugee.

   Member - English - Those definitions are there in front of you, have you read them.

   Interpreter - Bangla - This page says who is a refugee. Did you read that.

   Applicant - English - Yes.

   d.

   Interpreter - Bangla - How long did your Visa last.

   Applicant - Bangla - I could have worked till 60 years of age.

   Interpreter - English – If I was, If I would, I would If I were, If I wish I was able to work till the age of 60.

   Applicant - English - That is the government law in the Qatar.

   Member - English - I need an answer to my question so please try and answer my question.

   Interpreter - Bangla - Please understand what is being asked and answer that question only.

   Member - English - So my question is how long was your visa valid for. Your work visa in Qatar.

   Interpreter - Bangla - How long was your visa valid for in Qatar.

   Applicant - Bangla - After I came here or how long I wished to work.

   Interpreter - English - As long as I wished to work. After I came here how long could I work in Qatar.

   Member - English - Do you understand what a visa is, a work visa. When you had got your work visa it would have set it is valid for a certain period of time.

   Interpreter - Bangla - When you got the visa it will say how long you can work.

   Applicant - Bangla - It was written there that I could work till my age of 60. But obviously if I make any mistake then they can cancel my visa.

   Interpreter - English - It was written there I could work till my age of 60. But obviously If I make any mistake they can cancel my visa.

   Member - English - Are you sure about that.

   Interpreter - Bangla - Are you definite about it.

   Applicant - English - Yes

   Member - English - So you never renewed your work visa in Qatar.

   Interpreter - Bangla - Your visa did not get renewed in Qatar.

   Applicant- Bangla - In 2-3 years gap they come and check and put a stamp. I can show you my passport for visa system.

   Member - English - Just please answer my question. It is not helping you or me if you don't answer my question.

   e.

   Applicant - Bangla - My father was very influential in the locality. We ran an orphanage and a temple. My father was the Patron. I paid for these organisations after my father. After my parents death situation became bad. My wife was insecure and lonely. So my wife moved between my home and my sister's place. There were no Guardians at home to look out for my wife and daughter as I was away. That created a problem, local miscreants passed bad comments if my wife went out of my house with my daughter. That is why they went to my sister's place come back when they feel better and go back again. That is why they were moving from one place to another.

   Interpreter - English - There were passing bad comments if my wife and daughter were walking outside in the nearby streets around my home in my village. They were feeling lonely after passing of my parents. That is why they stayed a few days in my sister's place till they feel better come back for a few days then go again. That is why they were moving from one place to another.

   f.

   Interpreter - English - What Problem? [Interpreter's comment Not Member's Question. Interpreter is not allowed to comment or have any say in an ongoing hearing]

   g.

   Member - English - My question is when did your father donate the land to the orphanage.

   Interpreter - Bangla - When did your father donate this land to the orphanage.

   Applicant- Bangla - This particular piece ofland was donated around early 2010. The land is adjacent to our home and the orphanage. My father said to the principal of the orphanage, that he is donating this land to the orphanage. The Head of the temple and orphanage did not put much pressure to register it. But my father expired in 2010. So it fell on me to get it surveyed and registered to complete the donation process.

   Interpreter - English - Basically the same answer.

   Member - English - Tell me.

   h.

   Member - English - OK. I am trying to get an answer to my question. But I am having difficulty getting an answer to my question.

   Interpreter - Bangla - We need you the answer to this question. Try to understand and then answer the question.

   i.

   Applicant-Bangla - It was around January 2010. Could be early February.

   Interpreter-English- It was January or early February. Most likely January 2010.

   j.

   Member - English - So why didn't your father complete the registration of the land.

   Interpreter - Bangla - Why did your father complete the donation of the land.

   Applicant- Bangla - My father donated a lot, and the Principal of the orphanage did not put pressure. They were already using the land. My father had heart disease and died. So it remained pending.

   k.

   Applicant - Bangla - 5 kinds of medications.

   Interpreter - English - Roughly 5 kinds of medications have been prescribed.

   Member - English - What was that for?

   l.

   Applicant - Bangla - Painldllers, capsules, antibiotics and some syrups to be used with warm water. There was something to put in my mouth when I went to sleep that will relieve me of pam.

   m.

   Applicant- Bangla - This is my main reason. My father is gone if they can kill me off the they can give a ve1y big blow to the Barnas. Local Muslims do not like us at all. We practice our religion. Look after our people. They do not like that. They want to kill me and get all my property.

   Interpreter - English - This is the main reason and that is why I am mostly concerned. We are minority. Muslims are huge in numbers. I love to preach my religion. My father used to do the same. I did the same thing. Muslim people do not like that anyone spreading other religion in their land.

   n.

   Interpreter - Bangla - Today you said the land was donated around January, February of 2010. As your evidence is not consistent we are worried about your credibility and credibility of your evidence. What is your response.

   Applicant - Bangla - I have written down the history of my life and that is that. My present mental state is not at all good. My Father or anybody else in my family did not write down the dates of the donations. The time of donation should be around 2009 or 2010. Generally they do not leave property unregistered for a long time. I was not there I came to know later after he had died. So There is a confusion about dates.

   Interpreter - English - My mind is not working very well at present. It should be around 2009 2010. They do not keep land unregistered after donating my father died and tried registering. The time is close to what I had mentioned.

   o.

   Interpreter - Bangla - On 13th of February Bashir's son threw a bamboo to hit you. Today you said Bashir himself hit you. Again these inconsistencies in your evidence raise concerns about your credibility. Would you like to comment on that.

   Applicant- Bangla - I had written Bashir hit me. They came together about 5 or 6 of them. I still have the scar.

   Interpreter - English - I wrote Bashir himself hit me over there in my face. There were 4 or 5 of them together. One of them hit me and it was Bashir. I have got the scar.

   p.

   Member - English - He would have understood the importance of transferring the title to the new owner when land was transferred to the new owner.

   Interpreter - Bangla - He surely understood that the title needs to be transferred when land is donated.

   Member - English - Do you want to make any comments.

   Applicant - Bangla - My father was a very busy man and sick too. The principal of the orphanage did not want to pressurize my father. He was a good person he will transfer it in his own convenience. When my father died suddenly then I faced all the problems.

   Interpreter - English - My Father was a very busy man. The principal of the orphanage did not put pressure on him, as it will get done sooner or later.

   q.

   Applicant - Bangla - I have had the medications. The prescription is with you. If I could have remembered all the medications that I had taken then I would not have had any problems.

   Interpreter - English - If I could have remembered all the medications then there would not be as much problem in my life.

   Member - English - I am not asldng you the names of the medications.

   Interpreter - Bangla - We are not asking you for the names of medications.

   Applicant - Bangla - I do not need to lie. These medications were given so I furnished the document. You can check in Bangladesh if you want to.

   Interpreter - English - I am not lying. I have been prescribed as much.

Ground 1

1. The applicant is entitled to a real and meaningful hearing. The process in which the applicant has the opportunity to give evidence and present arguments must be a fair hearing. Where the issue raised is whether the Tribunal breached the requirements of s 425 of the Act or the requirements of procedural fairness by reason of flawed translation during the hearing, it must be demonstrated that the standard of interpretation at the hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal, or that the errors made in interpretation at the hearing before the Tribunal were material to the conclusion of the Tribunal and adverse to the applicant such that the applicant was deprived of a real and meaningful opportunity to appear at the hearing.

2. The onus is upon the applicant to demonstrate that the flawed translation relates to matters of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision. There is however, no requirement to demonstrate that there is a complete incapacity to interpret such that the applicant was prevented from giving evidence. It is also the case that it is undesirable to overly define the relevant tests and circumstances where what is required is a fair hearing.

3. Accordingly, there is a need to focus on the process which is afforded to the applicant to enable him to give evidence and present arguments. This means that there need not necessarily be proof, cause or connection between a mistranslation in the Tribunal’s reasons for the decision because the misinterpretation may be of such a character or a frequency to deny any conclusion that the hearing was fair or a proper opportunity to be heard.

4. It is the process that is central, and the Court is considering whether the mistranslation affected or could have affected the quality of the hearing or findings of reasons. There is no requirement in relation to the criteria of procedural fairness to establish a causal connection between mistranslation and the decision maker’s ultimate conclusion. It is also relevant to take into consideration whether the mistranslation or non-translation is frequent or continuous, as opposed to intermittent errors.

5. There is also a distinction to be drawn between mistranslation and a lack of detail in the relevant question, the subject of translation. It must also be recognised that the process cannot be one of perfection, and that the Court is considering whether the translation is sufficiently accurate so as to convey the idea of concept being communicated. The Court also takes into account the observation that it is necessary to consider not only the alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the arguable process, but also to have regard to the cumulative effect of the same.

6. In the present case, the transcript of the hearing identifies at the outset, the applicant indicating to the Tribunal that he does speak English. In the course of the hearing, on a number of occasions, the applicant responds in English and provides a fulsome response with meaningful and responsive concepts. The Tribunal also raised with the applicant at the commencement whether he understood the interpreter and the applicant confirmed in English that he did.

7. After describing the process that was to be adopted, the Tribunal asked the applicant whether he had any questions, about what had just been explained and the applicant responded “Thanks”. In the course of the hearing, it is also apparent that the Tribunal asked the applicant to respond in Bengali. It is also apparent, from the transcript that when the interpreter had not interpreted what had been said by the applicant, the Tribunal member required the interpretation of what the applicant had said to be given to the Tribunal member.

8. Mr Bodisco skilfully argued that the overall qualitative assessment that was required in respect of the interpretation errors, went beyond the particulars identified and picked up as part of his amended ground 1. Mr Bodisco focused initially on the reference at the time of swearing to the use of the Gita, which would have been appropriate if the applicant was Hindu, but the applicant was identified in the application, to be Buddhist. There is nothing to suggest that the applicant was not fully aware of the fact that he was being sworn on the Gita and I do not regard that as a matter that supports the applicant not having a fair hearing, either taken individually or cumulatively with the other matters identified by Mr Bodisco as the subject of alleged error.

9. Each of the alleged errors are not ones that were causative of the adverse credibility findings by the Tribunal. None of the matters identified by Mr Bodisco were ones in respect of which an interpretation error can be identified as giving rise to an adverse credibility finding. Mr Bodisco argued that the breadth of the criticisms by the Tribunal, in relation to the inconsistencies and vagueness, was of a breadth that embraced the applicant’s responses, through the interpreter, that were identified by Mr Bodisco as being the subject of alleged errors.

10. None of the errors were material. None of the errors were of significance or of a kind that prevented the applicant having a real and meaningful hearing. At no stage during the hearing did the applicant raise any difficulty in understanding the interpreter or take issue with the interpreter’s translation of the applicant’s response.

Subparagraphs (a), (b) and (c)

1. Dealing with the specific subparagraphs raised by the alleged error, subparagraph (a) does not identify a matter of any materiality to the fair hearing. From the face of the translation provided, there was a sufficient translation of what was being said to permit the applicant to meaningfully participate in the hearing.

2. Subparagraph (b) is also a matter that does not identify any material error by the interpreter and does not reveal an interpretation error of the kind that prevented the applicant from having a real and meaningful hearing.

3. Subparagraph (c) is also an interpretation that does not reflect any material error and was a sufficient interpretation to enable the applicant to meaningfully participate in the hearing.

4. It is relevant, in relation to grounds (a), (b) and (c) that after that occurred, the Tribunal member gave the applicant an opportunity to comment or to ask questions in relation to what had been said, and the applicant said, “No, thanks.”

Subparagraph (d)

1. The next alleged error, in relation to subparagraph (d) reflects persistence by the Tribunal member, to obtain a responsive answer to the question as to the likely duration of the visa.

2. The alleged errors do not identify any material error in the interpretation, and the topic of the applicant’s visa was not one further addressed in relation to the applicant’s credibility by the Tribunal.

3. The Tribunal member’s endeavour to ensure a responsive answer does not reflect an interpretation error, and is consistent with the Tribunal ensuring that the applicant had a proper opportunity to meaningfully participate in the hearing. The transcript supports the finding by the Tribunal in its reasons that the applicant understood what was happening and was able to participate in the hearing in a meaningful way.

Subparagraph (e)

1. Subparagraph (e) does not identify any material error in the interpretation, and is not a matter that reflects the applicant being unable to participate meaningfully in the hearing that was being undertaken before the Tribunal.

Subparagraph (f)

1. Subparagraph (f) reflects the interpreter in English posing a question and notes the Tribunal member identifying that the interpreter is not to ask questions or comment or to have an ongoing say in the hearing and is entirely consistent with the Tribunal member ensuring that the applicant had a real and meaningful hearing and that the interpreter properly performed the interpreter’s task. The content of subparagraph (f) does not identify any proper basis to find the applicant was unable to meaningfully participate in the hearing.

Subparagraph (g)

1. In relation to subparagraph (g), it is apparent from the transcript that the Tribunal member understood that the interpreter had not translated what had been said by the applicant and pressed for the interpreter to do so. This is entirely consistent with the Tribunal member ensuring that the applicant had a real and meaningful hearing.

2. Subparagraph (g) does not reflect any failure by the applicant to meaningfully participate in the hearing given that the Tribunal member proceeded to require the interpreter to give the answer that it was apparent the applicant had given and which, it was apparent, had not been interpreted.

3. No criticism is made of the interpretation that then appears and the interpretation of what was required reflects a fair and adequate interpretation of what the applicant had said.

Subparagraph (h)

1. In relation to subparagraph (h), there is a preamble in the transcript that identifies the Tribunal member trying to ensure that the applicant understood the question that had been asked. That topic proceeded on to page 16 where the issue referred to in subparagraph h was raised. It was in the context of seeking this clarification that the Tribunal expressly requested the applicant to speak in Bengali.

2. The Tribunal member pressing for a responsive answer in those circumstances does not reflect any interpretation error and is consistent with the applicant having a real and meaningful hearing and the Tribunal properly raising with the applicant concerns in relation to the applicant’s evidence.

Subparagraph (i)

1. Subparagraph (i) does not reflect any material interpretation error and is consistent with the applicant having a real and meaningful hearing.

Subparagraph (j)

1. Subparagraph (j) does not reflect any material interpretation error and does not support the applicant not having a real and meaningful hearing. The issue that the Tribunal member was raising in relation to why the father had not completed the donation of the land was a matter which the Tribunal took into account in relation to the alleged neighbour dispute that the applicant had raised and the implausibility of the father not completing that step. Nothing in the interpretation that appears under subparagraph (j) gave rise to any adverse credibility finding.

Subparagraph (k)

1. In relation to subparagraph (k), there is no material interpretation error. This is not a case where the applicant in fact said that he received nine kinds of medication. It was the number of items of medication in relation to the incident with his chin that gave rise to the adverse credibility findings referred to in the Tribunal’s reasons and not any interpretation error as identified in subparagraph (k). Subparagraph (k) does not reflect an error that gave rise to the applicant not having a real and meaningful hearing.

Subparagraph (l)

1. In relation to subparagraph (l), the applicant’s summary of what he was prescribed does not reflect any material interpretation error and for the reasons just referred to above, it was the nine prescriptions identified on the written document that the Tribunal took into account in finding the document was not an authentic document. The applicant was not unable to meaningfully participate or deprived of a fair hearing by reason of the alleged error in subparagraph (l).

Subparagraph (m)

1. In relation to subparagraph (m), the Court does not accept that there is any material interpretation error and the interpretation referred to did not give rise to any adverse credibility finding by the Tribunal. On the face of the Tribunal’s reasons the interpretation did not give rise to the applicant being unable to meaningfully participate in the hearing.

Subparagraph (n)

1. In relation to subparagraph (n), the translation reflects no material error in what was said by the applicant. The applicant identified that his mental state is not good at all and the interpretation reasonably reflects the gist of what was said by the applicant in that regard. The balance of the interpretation also adequately identifies the substance of what was said by the applicant. The applicant was not deprived of any real or meaningful hearing, by reason of the alleged error in subparagraph (n).

Subparagraph (o)

1. In relation to subparagraph (o), a reference to the applicant’s assertion as to who hit him when raised with the applicant was a relevant matter and it is apparent the applicant understood this to be in relation to the inconsistency, and sought to maintain what the applicant had written. The interpretation does not reflect any material error and does not support the applicant not having a fair hearing before the Tribunal, by reason of any interpretation error.

Subparagraph (p)

1. Subparagraph (p) in relation to the transfer of land reflects the Tribunal raising with the applicant its concerns in relation to the substance of the claim founded upon the father not having transferred the land before his death. Subparagraph (p) does not identify any material interpretation error, and the interpretation identified in subparagraph (p), does not give rise to the applicant having been deprived of a real and meaningful hearing.

Subparagraph (q)

1. In relation to subparagraph (q), it is apparent that the Tribunal member identified that the question being asked was not the names of the medication and that the Tribunal member was taking steps to ensure that the applicant meaningfully understood and participated in the hearing.

2. There is no interpretation error in subparagraph (q) that supports the applicant being deprived of a meaningful opportunity to participate in the hearing. No material error is made out in the interpretation under subparagraph (q).

The subparagraphs considered cumulatively

1. Considering subparagraphs (a) to (q) together, the Court does not accept that cumulatively, this is a case where there has been repetitive, significant errors in the interpretation. Rather, the Court finds that the errors in the interpretation were not material, and that the applicant had the benefit of the substance of what was being asked, interpreted to him and the benefit of the substance of what he said, being interpreted to the Tribunal member.

2. Further, taking into account the whole of the transcript and the other matters referred to by Mr Bodisco in relation to the context of the assessment of the applicant’s credibility by the Tribunal, the Court does not accept that the alleged interpretation error gave rise to any adverse credibility findings or that the interpretation was materially inadequate or deficient so as to have adversely affected the assessment by the Tribunal of the applicant’s credibility.

3. The reasons provided by the Tribunal reflect logical and reasonable grounds for the adverse credibility findings open to the Tribunal on the material before the Tribunal, and the transcript reflects the Tribunal giving the applicant a proper opportunity to engage with the Tribunal’s concerns, in relation to the applicant’s credibility.

4. The quality of the interpretation of the hearing was overall, of a kind that does not gives rise to the applicant having been deprived of a real and meaningful opportunity to participate in the hearing. The quality of the interpretation overall, is not of a kind whereby the applicant was deprived of a fair hearing.

5. I find there was no breach of s 425 of the Act and no denial of procedural fairness in the conduct of the review by reason of the alleged interpretation errors. No jurisdictional error as alleged in ground 1 is made out.

6. For these reasons, the amended application is dismissed.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 March 2018