AZABY v Minister for Immigration

[2013] FCCA 1067

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZABY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1067

Catchwords:
MIGRATION – Refugee – Albanian national – well-founded fear of persecution – real chance of persecution test – relevance of past to prospects of future persecution – s.425 of Migration Act 1958 – necessity that applicant be provided with an interpreter who is skilled in interpreting – no adverse conclusions reached as a result of translating error – applicant able to effectively give his evidence notwithstanding translator error – application dismissed.

Legislation:
Evidence Act 1995 (Cth), ss.76 & 79
Migration Act 1958 (Cth), ss.36(2)(a) & 425

Re Minister for Immigration & Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v The Commonwealth (1999) 197 CLR 510
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
SZMKK v Minister for Immigration & Citizenship [2010] FCA 436
SZOYU v Minister for Immigration & Citizenship [2012] FCA 936
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZMKK v Minister for Immigration & Citizenship [2010] FCA 436
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131
SZGSI v Minister for Immigration & Citizenship 107 ALD 4147
SZOYU v Minister for Immigration & Citizenship [2012] FCA 936

Applicant: AZABY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 76 of 2012

Judgment of: Judge Simpson

Hearing date: 17 December 2012

Date of Last Submission: 17 December 2012

Delivered at: Adelaide

Delivered on: 12 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application of 19 April 2012 is dismissed.

2. The applicant shall forthwith pay the first respondent its costs in the sum of $6,646.00 (Six thousand, six hundred and forty six dollars).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 76 of 2012

AZABY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 March 2012.  The Tribunal affirmed a decision of a delegate of the first respondent dated 26 August 2011 to refuse to grant a Protection (Class XA) Visa to the applicant.

2. This matter first came before me on 2 November 2012.  At that stage, the only ground relied upon was that “(t)he Refugee Review Tribunal committed a jurisdictional error in failing to exercise its jurisdiction”.  The particulars provided were that “The Second Respondent committed jurisdictional error in failing to provide the applicant with a hearing as required under s.425 of the Migration Act 1958 (Cth)”.

3. Counsel for the applicant requested that the matter be adjourned to give the applicant a further opportunity to file an Amended Initiating Application and to file and serve additional affidavit material.  The application to adjourn was granted and the matter was adjourned for hearing on 17 December 2012.  The applicant was given 14 days to file and serve an Amended Application and any additional affidavit material together with an Outline of Submissions.  An order was also made that the applicant pay the respondent’s costs thrown away as a result of the adjournment fixed in the sum of $1,000.

4. On 7 December 2012, I made orders by consent that the first respondent file and serve an Outline of Submissions within 14 days of service of the applicant’s Amended Application and Outline of Submissions.

Evidence

1. At the commencement of the hearing on 17 December 2012, the applicant’s counsel indicated that as well as the green book, the applicant relied on the following affidavits:

   a)Affidavit of Jane Louise McGrath, solicitor for the applicant, affirmed on 21 November 2012 and filed on 22 November 2012 (“first affidavit”);

   b)Further affidavit of Ms McGrath affirmed on 17 December 2012 and filed the same day (‘second affidavit”);

   c)Further affidavit of Ms McGrath affirmed on 30 November 2012 and filed on 3 December 2012 (“third affidavit”); and

   d)Affidavit of the applicant sworn on 30 November 2012 and filed on 3 Decembers 2012 (“fourth affidavit”).

2. The first, second and third affidavits were received without objection. In his written submissions, counsel for the respondent, expressed concern that there was no proper evidence that the interpreter (Mr Dajsmaili), engaged to identify any interpreting errors on a transcript of the s.425 hearing, was a properly accredited interpreter. On the basis of evidence in the second affidavit, I accept that Mr Dajsmaili is an accredited interpreter.

3. The third affidavit deposed to the fact that the applicant had informed Ms McGrath that the interpreter who assisted him at the Refugee Review Tribunal provided poor interpretation services.  Ms McGrath further stated that she had arranged to have the hearing discs translated and transcribed with the use of an accredited translator, Mr Entel Dajsmaili, who was to listen to the tapes and provide his comments on the quality of the interpreting service.  Ms McGrath said that she had received an annotated version of the transcript of the hearing from Mr Dajsmaili.  A copy of the annotated version of the transcript was annexed to her affidavit.  She said that the handwritten notes on page 15 of the transcript were made by the applicant and her and do not form part of the translator’s quotations.

4. The respondent objected to the Court receiving the fourth affidavit as it contained opinion evidence contrary to s.76 of the Evidence Act 1995 (Cth) and there was no suggestion that the applicant’s opinion is based on any special knowledge within s.79. After hearing argument, I received into evidence the following portions of the fourth affidavit:

   ·Paragraphs 1, 2 and 3;

   ·The last sentence of paragraph 4; and

   ·Paragraphs 5, 6, 7, 8, 9 and 10.

The amended application

1. The applicant’s Amended Application sought the following final orders:

   “1.An order in the nature of certiorari to quash the decision of the Second Respondent made on 22 March 2012 in RRT Case Number 1109994.

   2.An order in the nature of mandamus requiring the Second Respondent to review the decision made by a delegate of the First Respondent made on 26 August 2011 according to law.

   3.An order that the First Respondent pay the Applicant’s costs of this application.

   4.Such further or other orders as this Honourable Court deems fit.”

2. The applicant identified the following grounds of the Amended Application:

   “1.The Second Respondent committed jurisdictional error in that it erred in relation to the question of whether the applicant’s fear of persecution if he returned to Albania was well founded.

   Particulars

   1.1The Tribunal did not ask itself the correct question or took into account irrelevant consideration in determining whether the applicant had a fear of persecution.

   1.2This may be inferred from:

   (a)    the Tribunal misunderstanding the significance of claims of past persecution;

   (b)    the Tribunal invoking the real chance test in respect of non-existent events; and

   (c)     the Tribunal confusing probability wit possibility in respect of the “real chance” test.

   2.The Second Respondent committed jurisdictional error in that it failed to comply with s.425 of the Migration Act 1958 (Cth).

   Particulars

   2.1The applicant does not speak English but only Albanian.

   2.2On 2 February 2012, the Second Respondent held an oral hearing.

   2.3At the hearing, an interpreter was used to translate Albanian into English.

   2.4The standard of interpretation was such so as to deny the right to a hearing pursuant to s.425 of the Act.

   2.5Furthermore, the length of the hearing, the manner in which the Tribunal conducted it and the failure of the Tribunal to make arrangements for the applicant’s infant all contributed to there not be a real hearing.”

Background

1. The applicant is a citizen of Albania who applied for a Protection (Class XA) Visa on 9 February 2011.  Although the applicant’s wife also applied for a Protection Visa as a dependent member of her husband’s family unit, she is not a party to these proceedings.

2. The applicant’s written claims in support of his claim for protection were contained in his Protection Visa Application. The applicant claimed to fear persecution for reasons of his political opinion from the Albanian government led by Sali Berisha and members and supporters of his Democratic Party, including the Police Chief. The applicant was a member and organiser for the Christian Democratic Party (PDK) from “at least” 2007. He was appointed Commissioner for the PDK in the town of Bushat for the local election in 2007 and the general election in 2009. This meant that he was the official PDK scrutineer for those elections.

3. The applicant says that on the day of the general election in June 2009, he was threatened with a gun and told if he did not leave the election office, he would be killed.  The threats were made by various democratic party members and the Police Chief.

4. The applicant immediately left the village where he had been staying and lived in hiding for a few months whilst he arranged an Italian Visa for his wife. The applicant and his wife travelled to Italy in September 2009.

5. The applicant claimed that he continued to receive death threats whilst in Italy between September 2009 and December 2010.

6. The applicant arrived in Australia with his wife on 9 December 2010 on a visitor visa and lodged protection visa applications on 9 February 2011.

The delegate’s decision

1. On 17 May 2011 the delegate of the first respondent wrote to the applicant through his appointed agent inviting him to attend an interview scheduled for 8 June 2011.  The applicant attended this interview with his wife and gave evidence in support of his claims.  The applicant also submitted a letter from a psychologist at STTARS (Supporting Survivors of Torture and Trauma) to the Australian Red Cross dated 6 April 2011, various media articles and copies of identity documents.

2. On 26 August 2011, the delegate made a decision refusing to grant the applicant a protection visa.  The delegate considered the applicant’s claims and Country information concerning political freedom in Albania and found that the applicant did not face a real chance of convention related persecution on the basis of his political opinion.  The delegate was therefore not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention.

The Tribunal’s proceedings

1. On 23 September 2011, the applicant lodged an application with the Tribunal to review the delegate’s decision and appointed the same representative to represent him in connection with that review.

2. By a letter dated 21 December 2011 and sent to his authorised representative, the Tribunal validly invited the applicant and his wife to attend a hearing before the Tribunal scheduled for 2 February 2012.  The applicant accepted the invitation and attended.  He gave evidence on 2 February 2012 with his wife.  The applicant provided to the Tribunal an untranslated document in Albanian which appeared to be a marriage certificate and a birth certificate for the applicant’s child.

3. On 7 February 2012, the Tribunal received from the applicant’s representative Country information on Albania comprising media reports.

4. In a decision dated 22 March 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection Visa.

5. The Tribunal found that the applicant was not a credible witness.  On the basis of strong adverse credibility findings, the Tribunal rejected the applicant’s claims to have been harmed or threatened in the past.  For example, the Tribunal found that the applicant had given inconsistent evidence about the incident on Election day in June 2009 as to how he was threatened and whether he had received threatening telephone calls whilst in Italy.

6. The Tribunal also found that the applicant had provided internally inconsistent evidence at the Departmental interview about whether he left Albania immediately after the incident on Election day in June 2009 or later that year, and that he did not provide plausible explanations for these inconsistencies.

7. The Tribunal accepted that the applicant had been a member of the PDK Political Party “… at least at some time in the past …” and accepted that he may have held a role as an Election Commissioner for the PDK during the 2007 election.

8. The Tribunal doubted whether the claimed ‘election day incident’ in June 2009 occurred, noting the identified discrepancies in the applicant’s account of the incident. The Tribunal found that even if “some version” of this incident did occur, then the applicant subsequently acted in a way that was not consistent with someone who feared that they would be killed or seriously harmed. The Tribunal found that the applicant could have left for Italy immediately after the incident but did not leave until September 2009. For these reasons, the Tribunal concluded that the applicant was not involved in an incident on Election day in June 2009 which caused him to fear that he might be seriously harmed.

9. The Tribunal also found that whilst the applicant was living in Italy from September 2009 to December 2010, he did not receive threats.  In support of this conclusion, the Tribunal relied on identified discrepancies in the applicant’s evidence about the threats, his evidence that he did not report the threats to the Italian authorities, his failure to take any steps to relocate within Italy, and that he had returned to Albania three times during 2010.

10. The Tribunal found that the applicant did not leave Italy and travel to Australia in December 2010 because he feared being seriously harmed.  It also did not accept that the applicant faced a real chance of harm in the future on the basis of the election day incident or the threats made against him whilst in Italy.

11. The Tribunal accepted that the applicant might wish to be involved in PDK activities if he returned to Albania but did not accept, on the basis of country information, that he would be persecuted because of his political activities.  Similarly, the Tribunal accepted that the applicant held anti-government views but found on the basis of accepted country information that he did not face a real chance of persecution if he chose to express those views.

12. Accordingly, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he returned to Albania and found that he failed to satisfy s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

13. The respondent submits that the Tribunal’s conclusion that the applicant was not credible was a finding of fact par excellence.[1]

Applicant’s submissions

[1]     Re Minister for Immigration & Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.

Ground 1

1. The first ground of review that the applicant complains of is that, despite purporting to apply the well-founded fear test, the Tribunal nevertheless misunderstood that test.  The applicant submits that the inference that they misunderstood the test, can be drawn from three particular aspects of their reasons.

2. The applicant submits that the Tribunal’s treatment of the applicant’s claims of past persecution, and the way it considered them in its reasons, supports a finding that it did not understand the issue of well-founded fear.  The applicant refers to a passage from the combined judgment of Justices Gummow and Hayne in the case of Appellant S395/2002 v Minister for Immigration & Multicultural Affairs[2]:

   “It is well established that the Convention definition of “refugee” has subjective and objective elements.  Does the applicant fear persecution for a Convention reason (the subjective element).  Is that fear well founded (the objective element)?

   The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality.  That is an inquiry which requires close consideration of the situation of the particular applicant …

   Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality.  If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country.  Yet absence of past persecution does not deny that there is a real chance of future persecution.

   Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality.  That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”

   [2] (2003) 216 CLR 473 at para [72] – [75].

3. The applicant submits that the Tribunal must determine what will happen to an applicant if he returns to his country of nationality and that in making that prediction, it may take into account firstly, evidence of past persecution and secondly, how persons like the applicant are treated in the relevantly country. 

4. The applicant submits that the Tribunal did not commence its reasons for decision by finding what would happen if the first applicant returned to his country.  Instead, it treated the evidence of persecution as claims in and of themselves.  The applicant says that this is evident from paragraph 239 of the Tribunal’s reasons.

5. The applicant further submits that at no stage did the Tribunal approach its task in the way set out in the case earlier referred to namely, a finding that, due to the fact that two previous events did not exist, “there is not a real chance that as a result [of these events], he would be persecuted in the reasonably foreseeable future”, and then a finding that the applicant would be an active political person if he returned to Albania.  The applicant submits that the claims of past persecution aid (or perhaps do not aid) the overall claim.  The applicant submits that the claims of past persecution are not assessed by themselves.  It is submitted that the Tribunal clearly misunderstood their significance to the issue of a well-founded fear.

6. The applicant submits that the second aspect of the reasons that needs to be examined to enliven the inference is the Tribunal’s invocation of the “real chance” test in respect of the alleged past persecution as if they were separate claims.  They submit that this does not make sense.  They submit that the key words in paragraph [238] that demonstrates the error are the words “as a result”.

7. The applicant first refers to a passage from the well known case of Minister for Immigration and Ethnic Affairs v Guo:[3]

   “Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

   (emphasis added)

   [3] (1997) 191 CLR 559 at 575.

1. The applicant then refers to the case of Abebe v The Commonwealth[4] and, in particular, the following passage:

   “… a Tribunal will often find assistance in deciding whether a person has a well-founded fear of persecution by looking at that person’s prior experiences.  If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well-founded.  But proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution.  Regrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past.”

   [4] (1999) 197 CLR 510 at 587 [192].

2. The applicant submits that the “real chance” test only has relevance if the Tribunal finds that the past persecution alleged did occur.  The Tribunal, applying Guo and Abebe, would need to assess whether the fact that such events had occurred in the past gave rise to a risk of repetition of the events - that there is a “real chance” that they may happen again.

3. As to what is meant by “real chance” the applicant referred to two passages from the case of Chan Yee Kin v Minister for Immigration & Ethnic Affairs[5].

   [5] (1989) 169 CLR 379 at 429.

4. McHugh J stated:

   “The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur.  As the United States Supreme Court pointed out in Cardoza-Fonseca, an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a farfetched possibility of persecution must be excluded.  But if there is a real chance that the applicant will be persecuted, his or her fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.”

5. Mason CJ stated:

   “I agree with the conclusion reached by McHugh J, that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. …. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalisation Service v Cardoza-Fonseca where Stevens J., … observed that the interpretation favoured by the majority would indicate that “it is enough that persecution is a reasonable possibility”.  I do not detect any significant difference in the various expressions to which I have referred.  But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia … If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their Country of origin.”

6. The applicant also refers to the case of Guo[6].  The applicant submits that the plurality judgment in Guo cited both Mason CJ and McHugh J with approval and stated:

   “Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”

   [6] (1997) 191 CLR 559 at 572.

7. The applicant submits that read in this light, paragraph [238] of the Tribunal’s reasons appears illogical and pointless.  They submit that once the Tribunal found that the offence did not occur, that that was an end to their relevance.  They did not assist the Tribunal on the question of whether the applicant had a well-founded fear.  The applicant submits that the finding at paragraph [238] invoking “real chance” is pointless and represents a misunderstanding of the Tribunal’s function by it.

8. The applicant submits that the third and final aspect of the reasons that needs to be examined to enliven, if appropriate, the inference that the applicant wishes the Court to make is the suggestion that the Tribunal confused ‘probability’ with ‘possibility’ in respect of the “real chance” when the Tribunal came to find what the applicant would do in the future. 

9. The applicant refers the Court to an extract from the case of SZMKK v Minister for Immigration and Citizenship[7].  Barker J said:

   “It is well understood and accepted all round by the parties in this case, that for a person to have a well-founded fear of persecution, the prospect of the person’s persecution if they are returned to their country must be possible but need not be probable.  Accordingly, it is sufficient that there be a “real chance” of persecution: (Chan Yee Kin v Minister for Immigration and Ethnic Affairs)  Further, that the chance may be below 50% and the person does not need to positively prove that they will be persecuted, therefore, or that such an event is probable.”

   [7] [2010] FCA 436 at [25].

10. The applicant further submits that despite the Tribunal describing the risk of a person being seriously harmed at an anti-government rally as being “possible”, it then states that it “does not accept that there is a real chance that such person would be seriously harmed”.  The applicant complains that the Tribunal fails to explain how the risk, despite being possible, does not amount to a “real chance”.  It is further submitted that the Tribunal may have thought that the risk of serious harm when attending an anti-government rally was not reasonable or would have a less than 10% chance of occurring.  But there is nothing in its reasons to support this.  There is nothing to suggest that it understood that “real chance” might be less than 10% or amount to a possibility, as distinct from a probability.

Ground 2

1. The second ground of review complains that the Tribunal, having an obligation under s.425 of the Act to provide an invitation to a hearing must ensure that the applicant is provided with a real and meaningful hearing which includes the provision of interpreter services of a standard that allows for a real and meaningful hearing rather than a merely formalistic one.

2. The applicant refers to a passage from the case of SZOYU v Minister for Immigration and Citizenship[8] to support this ground.  They refer in particular to the decision of Jacobson J who stated the relevant principles as follows:

   “The standard of interpretation is not one of perfection.  It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language …

   Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s.425 so as to give rise to jurisdictional error.  The onus is on an applicant to demonstrate that the departure related to a matter of significance t his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision …

   Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with s.425 involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole …”

   [8] [2012] FCA 936 at [30] – [32].

3. The applicant submits that at the hearing on 2 February 2012, where the interpreter was required to translate Albanian into English, that the standard of interpretation was such as to deny the applicant’s right to a hearing pursuant to s.425 of the Act. The applicant complains that the interpreter did not know many of the words or terms used by the applicant, that the interpreter did not directly translate but would summarise answers in response to the Tribunal, that the applicant’s statements concerning the Demo Christian Party and the Socialist Party were misunderstood and misconstrued by the interpreter, and that the interpreter did not speak clearly or fluently but mumbled. The applicant also complains that the length of the hearing, the manner in which the Tribunal conducted it, and the failure of the Tribunal to make arrangements for the applicant’s infant, all contributed to there not being a real hearing.

Respondent’s submissions

Ground 1

1. The respondent submits that the Tribunal’s reasons make it clear that it understood the real chance test and properly applied it in its deliberations.  They point out that the Tribunal correctly stated the real chance test at [17] of their reasons and subsequently invoked it at [238], [250], [253], [254], [255], [259], [268] and [269].

2. They submit that on a fair reading of the Tribunal’s reasons the inferences that the applicant suggests should be drawn are not open to be made.  They also submit that none of the matters relied upon by the applicant demonstrate that the Tribunal misunderstood or failed to apply the real chance test.

Ground 2

1. The respondent says that ground 2 is also without merit.

2. The respondent submits that the standard of interpretation was not so inadequate that the applicant was effectively prevented from giving evidence or that the errors in interpretation were material to adverse conclusions reached against the applicant.

3. They submit that ground 2 fails and the application should be dismissed with costs.

Conclusions

Ground 1

1. In its reasons, the Tribunal repeatedly claimed to be applying the real chance test.  This fact is to be taken into account but is by no means decisive.  I note that in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[9], a case where an applicant made a similar complaint to the present, that the High Court overturned a finding of the Full Federal Court that the Tribunal had not applied the real chance test.  The fact that in the present case the Tribunal correctly stated the real chance test and repeatedly mentioned the real chance test is a factor for me to take into account.

   [9] (1996) 185 CLR 259.

2. The applicant complains that the Tribunal made factual findings as to past events before considering whether the applicant’s fears of future harm were well-founded.  Guo’s case indicates that this is exactly what the Tribunal should have done.  At pages 574 and 575, the Court had this to say:

   “The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable.  Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.  The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.  In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty.  In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.  In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.  But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”

   This passage continues with the passage quoted at paragraph 38 of these reasons.

3. The applicant’s submission that the use of the phrase “as a result” in paragraph 238 of its reasons does not make sense and demonstrates error is misguided.  In paragraph 237, the Tribunal had found that the applicant had not been involved in the election day incident in June 2009 which caused him to fear that he may be harmed.  In saying what it did in paragraph 238, the Tribunal was merely rejecting a claim of the applicant.  The Tribunal was clearly not applying the real chance test to a non-existent event.

4. The applicant complains that the Tribunal refers to it being ‘possible’ that an ordinary person with anti-government views could be harmed when attending a rally but not that there was a real chance of this occurring.  While a real chance need not be ‘probable’, it is not necessarily enough that it is ‘possible’.  This follows from Guo’s case[10] and nothing said in SZMKK v MIAC[11] (a case referred to by the applicant) suggest otherwise.  It is not a fair reading of the reasons to suggest that the Tribunal misunderstood this or was denying that a possible risk could never amount to a real chance of harm.  The Tribunal was simply making an assessment of the probability of harm and finding that while it is ‘possible’, it did not amount to a ‘real chance’.  There is no error in such reasoning.

   [10]    Supra at 572 – 573.

   [11] [2010] FCA 436 at [25].

5. In my view, the applicant has failed to show jurisdictional error and ground one fails.

Ground 2

1. The question is whether any breach of s.425 of the Act has been established. In Appellant P119/2002 v MIMIA[12] the Court tested such a ground by asking whether the standard of interpretation was so inadequate that the appellant was effectively prevented from giving evidence, or whether errors made in interpretation were material to adverse conclusions reached against the applicant.  The Court found that the admitted errors in interpretation in that case did not establish either test.  A similar conclusion was reached of admitted infelicities in interpretation in WALN v MIMIA[13] and SZGSI v MIAC[14].  The judgment of whether an applicant has been deprived of an opportunity to give evidence due to misrepresentation requires a qualitative assessment of the interview as a whole.[15]

   [12] [2003] FCAFC 230 at [17 – 18].

   [13] [2006] FCAFC 131 at [29 – 30].

   [14] 107 ALD 4147.

   [15]    SZOYU v MIAC [2012] FCA 936 at [32].

2. I have read the annotated transcript.  I have noted that on occasions, there are apparently errors made in the translation. They are, in my opinion, infrequent and of a minor nature. For example, the words “Catholic Church” were interpreted as “Catholic”; the words “Socialist Party” were apparently not included in a sentence when the context of the dialogue made it clear that he was talking about the Socialist Party; the interpreter said “my head leader” when he should have said “the Chairman”.

3. The s.425 interview gave the applicant a full opportunity to get his story across to the Tribunal notwithstanding any deficiency in the interpreter’s skills. It was clearly a very long hearing. There is no indication that there was any adverse conclusion reached by the Tribunal on the basis of any error made by the interpreter.

4. Ground 2 fails.

5. I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  12 August 2013