AWW17 v Minister for Immigration
[2019] FCCA 2681
•23 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2681 |
| Catchwords: PRACTICE & PROCEDURE – Whether the solicitor’s conduct should be referred pursuant to the Legal Profession Uniform Law Act 2014 (NSW). |
| Legislation: Migration Act 1958 (Cth), ss.5, 473CB, 473DD, 473FB, 476, pt.7AA Federal Circuit Court Rules 2001 (Cth), r.13.01 Legal Profession Uniform Law Act 2014 (NSW), s.296 |
| Cases cited: M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481; (2018) 353 ALR 600 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221; 2017 159 ALD 417 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; (2017) 158 ALD 198 AUS17 v Minister for Immigration & Anor [2017] FCCA 1986 BRE16 v Minister for Immigration & Anor [2018] FCCA 1412 AYU16 v Minister for Immigration & Anor [2018] FCCA 2890 DGB16 v Minister for Immigration & Anor [2019] FCCA 248 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 [2019] HCA 3; (2019) 93 ALJR 252: (2019) 363 ALR 599; (2019) 163 ALD 38 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780; (2018) 359 ALR 1 BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 |
| Applicant: | AWW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 625 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 10 September 2019 |
| Date of Last Submission: | 16 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2019 |
REPRESENTATION
| Representative for the Applicant: | Mr S. Hodges |
| Solicitors for the Applicant: | Hodges Legal |
| Counsel for the Respondents: | Mr J. Kay J Hoyle |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The name of the first respondent is amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application made on 3 March 2017 and as amended is dismissed.
The applicant pay the first respondent’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 625 of 2017
| AWW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 3 March 2017 and amended on 5 October 2017 seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on six February 2017 which affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (Court Book – “CB” – “RE1”).
Background
The applicant is a citizen of Sri Lanka and is of Tamil ethnicity. He arrived in Australia by boat on 21 October 2012. He was considered to be an “Unauthorised Maritime Arrival”.
On 26 February 2016 the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”). For current purposes, and with reference to the IAA’s decision, this can be described as a protection visa. He was represented by a registered migration agent.
The applicant’s claims to protection, as they emerged from his application, written statements, Statutory Declaration and submissions were that he feared harm from the Sri Lankan authorities because he was a Tamil, from the eastern part of Sri Lanka, and was imputed to have an association with the Liberation Tamil Tigers of Eelam (“the LTTE”), his political opinion, his mental health and his status as a returning asylum seeker who departed Sri Lanka illegally.
The applicant’s written submissions to the Court provide a summary of some of the applicant’s factual claims:
“8. The applicant’s claims include the following:5
8.1 In October 2002, the applicant was taken by the LTTE and forced to carry soil on his tractor for building works. When the applicant refused to be part of the LTTE, they imprisoned and assaulted him.
8.2 The applicant escaped after a month of imprisonment and injured his leg while doing so. He resided in his aunt’s house to avoid the LTTE when they came looking for him.
8.3 On 27 June 2005, the applicant and his brother found their father deceased in a field. The applicant believes that he was murdered by the Karuna Group.
8.4 In 2012, the applicant began supporting the Tamil National Party (TNA). On 22 August 2012, the applicant was threatened and assaulted by members of the Tamil Makkal Viduthalai Pulikal (TMVP) while he was putting up posters and distributing leaflets. On 23 August 2012, the applicant received a phone call during which he was threatened with death if he did not stop supporting the TNA.
8.5 On 25 August 2012, the applicant was abducted by men in a white van. He was imprisoned for five days during which he was sexually assaulted and tortured. He was released after his family paid a ransom of 4 lakhs.
8.6 On 10 September 2012, unknown people came to his house and tried to get in. The applicant immediately fled to his sister’s home but, when he return, his mother told him that they had come to shoot him.
8.7 The unknown men visited his house again on 20 September 2012. On this occasion, they assaulted the applicant’s brother.
8.8 On 15 February 2013, the CD came to the applicant’s house looking for him. Since the applicant had already left for Australia, they assaulted his mother and stole her jewellery.
8.9 The applicant’s home was firebombed on 17 August 2015. This occurred after the general election and the applicant believes that the attack may be motivated by his support for the TNA.
8.10 On 15 July 2016, the applicant’s brother’s motorcycle was attacked and burnt.”
[Footnotes Omitted.]
The Minister’s Delegate
The applicant was interviewed by the delegate on 18 July 2016 (CB 137 and CB 383). The delegate refused the application on 7 September 2016 (CB 415–CB 432). The delegate found that the applicant “….appeared to be credible on some aspects of his claims…”, But had “significant concerns regarding his central claims in relation to the harm that he fears from the Sri Lankan authorities” ([26] at CB 424).
The IAA
The case was referred to the IAA on 13 September 2016 (CB 434). There is no dispute now that the applicant met the definition of “fast track applicant” as set out at s.5(1)(a)(i)–(iii) of the Act. Nor was there any dispute that Part 7AA of the Act applied in relation to the review by the IAA.
In acknowledging the referral (CB 434–CB 435) the IAA, amongst other things, sent to the applicant a copy of the “Practice Direction for Applicants, Representatives and Authorised Recipients” (CB 443– CB 446) which applied to the conduct of the review before the IAA.
Through a new migration agent the applicant provided various reports to the IAA on 25 September 2016. These were a psychological report, dated 23 September 2016, (CB 452–CB 459), a letter authored by a medical practitioner dated 20 September 2016 (CB 451), and an acknowledgement of a complaint made in Sri Lanka concerning a motorcycle (CB 448–CB 449). Further documents were sent on 5 October 2016 and 28 December 2016 (CB 507–CB 527).
Of direct relevance to the applicant’s ground, on 5 October 2016 the applicant’s representative provided written submissions to the IAA with the request that the IAA “…consider the additional documents [attached to the submissions] and written submissions” (CB 460.3).
One of the attached documents (which is now the focus of the applicant’s ground before the Court) was the “affidavit” of Fernando Rodrigo, dated 28 September 2016. The affidavit annexed what Mr Rodrigo described as a transcript that he prepared of the “DIBP hearing” held on 18 July 2016. In context, this was a transcript of what was said at the applicant’s interview with the delegate (see further below).
The IAA’s decision record states that it had regard to the material referred by the Secretary of the Minister’s department pursuant to s.473CB of the Act ([4] at CB 534), and dealt with a number of documents and submissions made to it ([5] at CB 534). That consideration follows at [6]–[7], [9]–[15] (at CB 534–CB 536).
The Applicant’s Claims
The Minister’s written submissions provide a fair summary of the IAA’s reasoning and findings [16]–[17]:
“16. The IAA noted that the applicant provided the IAA submission at [8] of the Decision. In respect of the further documents and information relied on by the applicant, the IAA:
a. Accepted that there were exceptional circumstances to consider the medical information, including the medical report and medical letter. It also considered that there were exceptional circumstances to justify considering the CAT Report ([6]) and [15] of the Decision).
b. Noted that the applicant had already provided copies of the psychological report and medical report (at [10] and [12] of the Decision).
c. Noted that the extract of the enhanced screening interview and the photographs of a motorcycle had previously been provided and were not new information (at [13] and [14] of the Decision).
d. In relation to the affidavit and interview transcript, it noted that the deponent was not a NAATI accredited interpreter. Further, the applicant had not made any claims that that there was an significant error in the interpreting before the Delegate or that the Delegate had been misdirected in that regard. The applicant’s post-interview submission had not made any claim concerning the interpreting before the Delegate. The applicant had the opportunity to raise any such issues; it was not satisfied that the requirements of s.473DD(a) had been met (at [9] of the Decision).
e. In relation to a further new translation of a newspaper article, the translation issue was raised at the interview. The applicant’s representative stated that he would get further evidence about the issue and none was provided. The IAA was satisfied that s.473DD(a) was not met (at [11] of the Decision).
17. Relevantly, the IAA found as follows:
a. It accepted the medical evidence provided by the applicant and took it into account in considering the applicant’s evidence and the explanations given by the applicant including the applicant’s inability to talk about some of his experiences. It accepted that the applicant was a generally credible witness and that he would not be at risk of harm by reason of his mental health should he return to Sri Lanka (at [20], [55]-[56] of the Decision).
b. It accepted that the applicant was forced to work for the LTTE, imprisoned and mistreated (at [25] of the Decision). However, it did not accept that the LTTE continued to search for the applicant or continued to harass the applicant. Given the changed circumstances and the passage of time, the IAA did not accept that the applicant was at risk of harm from the LTTE or any associated group (at [22]-[28] of the Decision).
c. It did not accept that the Karuna Group had any involvement in the death of the applicant’s father or that the applicant was at risk as result of the father’s death (at [29]-[31] of the Decision).
d. Based on the applicant’s evidence, and certain country information, it accepted that the applicant was a low-level supporter of the TNA but it did not accept that the applicant was abducted or tortured (even though it accepted that Sri Lankan males subject to sexual abuse may be reluctant to report details) or that he had any political profile such that members of the TVMP would consider him to be someone of adverse interest (at [32]-[41] of the Decision).
e. The IAA did not accept that there were further visits to the applicant’s home by the CID or the TVMP (at [42]-[43] of the Decision).
f. The IAA was prepared to accept that the applicant’s mother was robbed and that the applicant’s house was damaged by fire but was not prepared to accept that these incidents were the result of actions by the TVMP or the Sri Lankan authorities or that the applicant had a profile that might make him the subject of adverse attention from the authorities (at [44]-[48] of the Decision).
g. In relation to the applicant’s departure from Sri Lanka and therefore any risk arising from the applicant returning there as an illegal returnee, the IAA found, among other things, that country information showed that where an individual pleaded guilty to a breach of the Immigrants and Emigrants Act (IEA) the person was immediately granted bail on a personal surety. The individual may be required to have a family member act as guarantor (at [62] of the Decision).”
The Applicant’s Ground
The applicant filed an amended application of which only one ground was pressed:
“The IAA committed jurisdictional error by failing to have regard to the criteria in s 473DD(b) when considering the new information relating to the applicant’s arrest warrant.
PARTICULARS
a.The IAA states at [9] that it was not satisfied that there are exceptional circumstances to justify considering this information and did not consider the affidavit dated 28 September 2016.
b.The reason the IAA did not consider the affidavit dated 28 September 2016 was due to the deponent being not a NAATI accredited interpreter.
c.Paragraph 37 of the Practice Direction 1 dated February 2017 published by the IAA states:
27. All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both documents and the translations should be provided.
d.Firstly, the affidavit of 28 September 2016 (with a transcript of the delegate’s interview) contained a ‘transcript’ of the audio recording of the delegate’s interview it was not a document that was translated by the deponent who signed the affidavit dated 28 September 2016.
e.The IAA states at [9] that the deponent who signed the affidavit dated 28 September 2016 “…merely assert they are competent in both English and Tamil.” The deponent who signed the affidavit states at paragraph 2 of that affidavit that he was a “sworn translator of the District Court of Colombo”. More details would be provided upon receipt of the court book.
f.The affidavit dated 28 September 2016 (with a transcript of the delegate’s interview) was an important piece of evidence and together with the written submissions dated 5 October 2016 highlighted concerns in the manner the delegate conducted the interview.
g.The purpose of providing the affidavit dated 28 September 2016 (with a transcript of the delegate’s interview) was not point to ‘errors in the interview’ [9] due to the interpreter rather allegations against the decision maker.”
[Error in the Original.]
Section 473DD of the Act was at the relevant time in the following terms:
“For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
The applicant’s ground directs attention to [9] of the IAA’s decision record in which the IAA considered the affidavit of Mr Rodrigo. Other documents and submissions were considered at [6]–[7] and [10]–[15]).
Paragraph 9 is in the following terms:
“9. The submissions attach five documents. The first is an affidavit dated 28 September 2016 that purports to analyse the interpreting at the interview. I note that the deponent is not a NAATI accredited interpreter or translator and they merely assert they are competent in both English and Tamil. The interpreter at the interview was a NAATI accredited interpreter. In any event, the applicant has not made any claims or submissions that there are significant errors in the interview or that the delegate was misdirected or misinformed by the interpreter. While I accept that the purported translation could not have been prepared until after the interview, I note that the applicant provided comprehensive post-interview submissions. These did not raise any concerns with interpretation or indicate that the applicant would provide an analysis of the interview. The only reference to translation issues was in relation to a media report that was raised and discussed at the interview (and is dealt with below). If the applicant had any concerns about the interpreting at the interview, he had opportunity to raise this before the decision was made. I am not satisfied that there are exceptional circumstances to justify considering this information and pursuant to s.473DD(a) of the Act, I have not considered this information.”
The applicant’s argument as explained in written submissions filed prior to the hearing was as follows.
One, the requirements of s.473DD(a) and s.473DD(b) are “cumulative”. This means that the IAA must not consider new information unless it is satisfied that both (a) and (b) of s.473DD are satisfied (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“M174/2016”).
Two, the applicant referred to both BVZ16v Minister for Immigration and Border Protection [2017] FCA 958 at [8] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”) at [110], but did not satisfactorily explain how these advance the argument in explaining the ground.
Three, he relied on an authority of this Court (AUS17 v Minister for Immigration & Anor [2017] FCCA 1986 (“AUS17”)) for the proposition that a failure to have regard to both sub–paragraphs of s.473DD(b) of the Act may amount to jurisdictional error.
Four, the IAA accepted that the translation of the interview with the delegate could not have been done until after the interview. But it considered that there were no exceptional circumstances which justified the consideration of this information.
Five, in making this latter finding the IAA proceeded on the basis that the applicant’s intention in providing the transcript was to highlight errors in “translation” (interpretation). In this light the IAA made a finding not to consider the information. Its reasoning was said to be that the applicant did not expressly claim, that there were any errors in interpretation, and that the translator (Mr Rodrigo) was not accredited. (See further below)
Six, in submissions dated 5 October 2016 the applicant’s representative referred to “excerpts” from the interview with the delegate. These “excerpts” were used to support the applicant’s claims as to errors made by the delegate rather than errors made by the “translator”. In context I understood this to be the interpreter at the interview, not the translator (that is Mr Rodrigo).
The applicant submitted in written submissions that in these circumstances it was “arguably essential” for the IAA to consider the transcript in order to appropriately review the applicant’s claims.
Seven, further the IAA found that the deponent to the affidavit, the translator, Mr Rodrigo, was not NAATI accredited even though Mr Rodrigo “swore” in the affidavit that he was a “translator of the District Court of Colombo”.
At the hearing the applicant was represented by his solicitor, Mr S Hodges of Hodges Legal, who prepared both the application and amended application to the Court and drafted the written submissions referred to above. The Minister was represented by counsel, Mr J Kay Hoyle.
Before the Court
At the commencement of the hearing Mr Hodges stated that having read the Minister’s submissions, he pressed that the IAA had made the errors as asserted in the particulars to the ground and the written submissions (see [25]–[27] above).
However, he then submitted that while there was error in the way the IAA purportedly sought to apply s.473DD of the Act, this did not “take us anywhere”.
Ultimately this was explained as being that there was no jurisdictional error in the IAA’s decision. In that circumstance I asked Mr Hodges why, in effect, he was proceeding with an application which had, on his own submission, no prospect of obtaining the orders otherwise sought.
The response from Mr Hodges was that he was proceeding on the basis of instructions he had initially received from the applicant through other people in his office (see further below).
He accepted responsibility for what he described as his “tardy realisation” which led to his submissions before the Court now.
I asked Mr Hodges whether he was able to obtain instructions from the applicant prior to the hearing in light of this change in his approach to submissions in this case.
The response was that he did not “specifically know of the circumstances in relation to this applicant”. However, he then submitted that he knew “from past experience it is very difficult to make them change their minds” (see further below).
Mr Hodges accepted that absent jurisdictional error there was no basis on which to grant the relief sought.
No application for an adjournment was made to seek further instructions. Although this may be explained by Mr Hodges’ submission that it was difficult to obtain instructions from certain clients and that they would not in any event “change their minds” about proceeding with the application.
Nor was there any application for leave to discontinue the proceedings pursuant to rule 13.01(1) and (2) of the Federal Circuit CourtRules 2001 (Cth).
As set out above this case involves a person of Tamil ethnicity from Sri Lanka. This is not the first case before this Court where Mr Hodges has expressed difficulties in obtaining instructions from persons with this profile (see for example BRE16 v Minister for Immigration & Anor [2018] FCCA 1412 at [20], AYU16v Minister for Immigration & Anor [2018] FCCA 2890 at [10] and DGB16v Minister for Immigration & Anor [2019] FCCA 248 at [20]–[22]).
What was left therefore, was an amended application which contained one ground. The ground was not abandoned. The submission in support of the ground pressed error, but not jurisdictional error.
Immediately following the hearing when I came to consider drafting the judgment a number of difficulties prevented finalisation of this matter.
First, I was not satisfied on what had been put before the Court by Mr Hodges as to why he did not seek proper instructions from his client. After all, the application to the Court is not that of Mr Hodges, but the applicant (AWW17).
Second, even if he was unable to procure instructions, for whatever reason, then it was inappropriate, without instructions to proceed with submissions that were contrary, in an important, if not critical particular, to the instructions that he had received.
Third, this raised the serious question as to whether Mr Hodges’ conduct involved a breach of relevant legal ethics. Acting without, or contrary to, instructions is unethical conduct, which may lead to a finding (by the appropriate authority) of, at least, unsatisfactory professional conduct (see Legal Profession Uniform Law Act 2014 (NSW), s.296).
For this reason I asked the parties to appear before me again. Mr Hodges attended. The Minister was represented by a solicitor.
Mr Hodges “explanation” was that he dealt with this “group” of clients (in context I understood this to be persons of Tamil ethnicity from Sri Lanka) through another person in his office who acted as an “interpreter”.
It appeared that Mr Hodges did not directly deal with this group of clients, but that this other person in his office (whom I understood may be a solicitor) dealt with them.
Mr Hodges confirmed that he did not receive instructions (either directly or indirectly) from the applicant to proceed at the hearing in the manner set out above at [29]-[31] of this judgment.
Mr Hodges explained that he was caught between the ethical duty to his client and the ethical duty to the Court. He relevantly discharged the latter duty by making the oral submissions to the Court as set out above.
As to the duty to the client Mr Hodges relied on the difficulties he said he had in obtaining instructions as set out above, and in any event he expected that applicants in this “group” would always seek to press ahead with an application, and not discontinue the proceedings.
I was satisfied that Mr Hodges had not sought to mislead the Court. Mr Hodges acted with open candour both at the hearing and on the subsequent occasion before the Court. I accept that he believed, in balancing the two ethical duties referred to above, he sought to act in an ethical manner as he understood it.
In this light I decided that the matter should not be referred to the appropriate authorities for consideration as to whether his conduct was unsatisfactory. However having said that Mr Hodges should note the following.
One, despite Mr Hodges difficulty in balancing the duty to the client and the duty to the Court, what remains in the circumstances set out above is that Mr Hodges failed to properly fulfil his ethical duty to the client by making critical submissions for which he had no instructions or indeed acted contrary to the instructions he did have.
It may be that Mr Hodges needs to consider how his practice is managed in this regard. If he intends to represent clients at a hearing before the Court he should at least consider speaking personally to the client, albeit through the services of an interpreter in his office.
Two, having reached the position as explained above in being faced with the “dilemma” of the two ethical duties, Mr Hodges should have sought leave to withdraw his representation of the applicant in circumstances where he felt compelled to make submissions for which he had not received instructions. Particularly where the submissions were critical to the applicant’s prospects of success.
Three, there is some difficulty in the proposition that it is generally difficult to contact clients. Although it is understandable that some difficulties arise with language barriers, or clients who choose not to make themselves available.
However on Mr Hodges own submission he has a person (perhaps a lawyer) in his office who is, and on his submission, does, communicate with Mr Hodges clients in these types of cases. In my view Mr Hodges needs to exercise greater supervision of these matters, and the dealing with the clients if he wishes to avoid the difficulty that arose in this, and it must be said other cases.
Four, Mr Hodges should now consider that he is on notice of the Court’s view as set out above. In that light a failure of fulfilling any ethical duty towards a client, or the Court in the future cannot be satisfactorily explained by the matters raised before the Court now by Mr Hodges.
Consideration of the Ground
What remains therefore is that the submission was made on behalf of the applicant, that the sole ground of the amended application reveals that the IAA made two errors, but neither ultimately leads to jurisdictional error.
In oral submissions initially the applicant appeared to argue that the two errors as alleged in the grounds reveal jurisdictional error, but that these were not material to the outcome, and therefore the ground was not made out.
As the Minister’s counsel correctly submitted this confused the matter of materiality, and the exercise of the Court’s discretion to grant the relief sought.
As was, with respect, made clear by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”) , there is no jurisdictional error unless, or until, an applicant can show that any error made by the decision maker is material to, or could have made any difference to, the outcome expressed in the decision (SZMTA at [2], [45]-[46] and Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [28]-[30]; [66]-[72]).
The only dispute in this case, remaining after Mr Hodges initial submission, was whether the two alleged errors in the IAA’s reasoning could be made out or not. Given Mr Hodges submissions (as explained above) were made without his client’s instructions, it is appropriate to consider the ground in full.
A number of matters immediately arise which reveal the paucity of the applicant’s ground (which the applicant’s solicitor otherwise says does not reveal jurisdictional error) and the arguments used to explain it. These are both factual matters arising from the particular circumstances of this case and the applicant’s written explanation and reliance on authorities.
One, the Minister’s submissions provide a comprehensive review of relevant authorities in relation to s.473DD of the Act.
As set out above the applicant relies on M174/2016 for the proposition that the IAA cannot consider new information unless both (a) and (b) of s.473DD of the Act are satisfied. How this related to what the applicant otherwise said were the errors in the reasoning and findings of the IAA was not satisfactorily explained.
As the Minister submits, with greater precision than the applicant, s.473DD must be understood in its statutory context. That is that, with respect, in M174/2016 the High Court found that the relevant “primary rule” in matters of this type is that the IAA must consider the review material provided to it pursuant to s.473CB of the Act, but not accept or request new information.
In that context the requirements of s.473DD(a) and (b) of the Act provide the exception to this primary rule and are to be applied in the narrow circumstances set out in those provisions (BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [52]).
Two, as the applicant broadly submitted the requirements of s.473DD(a) and (b) of the Act are cumulative. In this context the condition in s.473DD(a), and at least one of the conditions in s.473DD(b), must apply in order to permit the IAA to be satisfied that the requirements of s.473DD of the Act are met.
In this regard while the applicant referred to M1742016 and BBS16, he made no reference to these cases at [31], [78] and [100] (for M174/2016) and BBS16 at [102]. Nor did he refer to later Federal Court authority, AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13].
Three, in this context, there is no requirement for the IAA to consider s.473DD(a) before s.473DD(b). In this light if both (a) and (b) are to be met to overcome the prohibition in s.473DD, then if (b) is not met, then irrespective of the situation in (a), the prohibition in s.473DD stands (AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33], BRA16v Minister for Immigration and Border Protection [2018] FCA 127 at [26]).
The applicant’s reliance on an authority of this Court (AUS17) cannot be accepted in light of subsequent Federal Court authorities.
Four, the applicant’s particulars to the ground and the submissions in support, appear to overlook what was said in M174/2016 at [75] that what are “exceptional circumstances” for the purposes of s.473DD(a) of the Act involves an evaluative process by the IAA.
Contrary to what appears to be implicit in the applicant’s argument this does not require the IAA, in that evaluation, to be satisfied of a particular fact (DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [17]).
Five, as set out above after having the benefit of the Minister’s comprehensive review of the relevant authorities (and see also the Minister’s submissions at [21]–[22]), the applicant’s solicitor, was unable to satisfactorily explain how the ground, and the particulars, could be made out in light of these authorities.
Six, in relation to the two asserted errors in the IAA’s analysis (which were pressed) the applicant’s ground also fails when regard is had to the contentions made in the particulars, and as explained in submissions.
First, the applicant takes issue with what he says is the IAA’s misunderstanding that the transcript was provided to highlight errors in “translation” (interpretation at the interview with the delegate). He now submits it was prepared to reveal errors made by the delegate.
It is difficult to see how the applicant can seriously make such an assertion given what is plainly set out in Mr Rodrigo’s affidavit.
Mr Rodrigo’s affidavit is reproduced at CB 461–CB 462. He plainly states:
(1)“I was asked to check the interpreting at the DIBP hearing on 18th July 2016 of [applicant’s name]. I had access to one audio recording. I listened to it.”
(2)“I prepared a transcript of the hearing, translating from Tamil to English and English to Tamil as required.”
(3)“In the attached transcript I have adopted the following methodology:
a.Where the interpreting was generally proficient, I have recorded only the words spoken by the delegate of the minister (M) and the Applicant (A).
b.Where I detected a significant discrepancy or error in the interpreting, I have inserted the words spoken by the interpreter (I).
The transcript shows that discrepancies occurred both when the interpreter was translating the member’s English into Tamil and when translating the Applicant’s Tamil into English.”
There is nothing here to even indicate that the transcript was prepared, or that he was asked to prepare it, other than for the purpose of “…check [ing] the interpreting at the DIBP hearing” (at [3] of his affidavit).
There was no error in the understanding by the IAA in this regard. Its reasoning and findings that the applicant made no claim, or submissions, that there were interpretation errors at the interview was reasonably open to it on what was before it. There is nothing in the evidence before the Court to support the contrary proposition. Nor does the representative’s accompanying letter in submitting the affidavit (and other documents) make any contrary suggestion.
Second, the representative’s submissions on which the applicant now relies, are reproduced at CB 497–CB 506. These submissions do make reference to the transcript provided by Mr Rodrigo (see at CB 499.4, CB 500, CB 501.2, CB 502.8–CB 503.2, CB 503.6, CB 503.7, CB 504.2 and CB 504.5).
As Mr Roderigo explained in his affidavit (at [9]) the methodology he employed was that where there was a “…significant discrepancy or error in the interpreting” he inserted the words of the “interpreter (I)” (at [9]b).
There is nothing in those parts of the representative’s submissions where the transcript is extracted to show that he inserted anything that indicates discrepancies or errors in the interpretation. There is no “(I)” in the excerpts of the transcript in the representative’s submissions.
Third, in all, the applicant’s contention now that the purpose of providing the transcript was not to point to errors in interpretation, but “rather allegations against the decision maker”, is not arguable on the evidence of Mr Rodrigo himself.
Whatever the applicant’s representative sought to do with the submissions, is not relevant to the IAA’s consideration at [9] of its decision record as to whether the affidavit of Mr Rodrigo satisfies the exceptions in s.473DD of the Act such as to compel the IAA to consider this information.
Fourth, the applicant complains now that it was not open to the IAA to not consider the transcript on the basis that Mr Rodrigo was not a “translator”. That the IAA was in error in proceeding in this way because Mr Rodrigo “swore” (in his affidavit) that he was a “translator”.
In his particulars to the ground (at c.), the applicant makes reference to the Practice Direction (“PD”), which was sent to the applicant by the IAA. (See above at [9] of this judgment). There was no dispute from the applicant that the PD was made pursuant to s.473FB of the Act.
The particular to the ground refers to both [37] and [27] of the PD. The PD is reproduced in the Court Book at CB 443–CB 446. There is no [37]. It may be that the applicant sought to refer to [27]. However, this also does not appear relevant to his ground. Nor do the applicant’s submissions now explain what part of the PD he seeks to rely on.
Perhaps the applicant should have referred to PD [25]:
“All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.”
Had he properly considered this paragraph of the PD and [9] of the IAA’s decision record, the applicant may have now realised the weakness of his complaint.
Whether Mr Rodrigo is an accredited translator with the District Court in Colombo is not relevant. What is relevant is that there is nothing in his evidence, or elsewhere in the evidence, to say he is NAATI accredited.
Before the Court the applicant sought to argue that the PD required a NAATI accredited translator to translate documents and that what Mr Rodrigo did was to interpret the words spoken in Tamil as he heard them from the audio recording of the interview. That is, he did not translate a document.
The difficulty with this argument is that at [9] of the IAA’s decision record (on which the applicant’s ground is focused) the IAA made no finding that it relied on the PD to reject, or place lesser weight on, Mr Rodrigo’s transcription of the interview.
Rather the IAA weighed the fact the Mr Rodrigo was not NATTI accredited as against the fact that the interpreter at the interview was NAATI accredited. It was reasonably open to the IAA to note this difference in its evaluation of the question posed by s.473DD(a).
Further, this was only a part of its reasoning as to whether exceptional circumstances existed for the purposes of s.473DD(a). The applicant may now disagree with the evaluation, but in circumstances where the weighing of evidence, reasonably and logically done, is for the IAA to undertake, the complaint really rises no higher than a request for impermissible merits review.
In all therefore there was no error in the IAA finding that there were no exceptional circumstances for the purposes of s.473DD(a) of the Act.
Fifth, contrary to the applicant’s contention now that the IAA fell into error because it did not consider s.473DD(b), it was open to the IAA in the circumstances to consider only s.473DD(a). For the reasons set out above, even if the IAA had made a finding in relation to s.473DD(b), the finding in relation to s.473DD(a) was sufficient to justify the IAA’s approach to the affidavit and the transcript.
Sixth, although not entirely clear, it appeared that the applicant also sought to assert, or imply, that the IAA should have considered the transcript so as to address, and correct, the claimed errors made by the delegate as set out in the applicant’s representative’s submissions made to it.
That must be rejected. As the Minister submits the IAA’s statutory task was to review the delegate’s decision, not necessarily to correct any errors made by the delegate.
In the circumstances presented the IAA did consider the representative’s submissions. As set out above the excerpts of the transcript set out in the submissions did not provide any evidence of interpretation errors at the delegate’s interview. Rather it was to address the claimed errors made by the delegate.
The two errors as alleged in the particulars to the ground are not made out.
Conclusion
In all there is no jurisdictional error arising from the sole ground of the amended application. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 23 September 2019
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