AZAFA v Minister for Immigration

[2015] FCCA 2555

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2555

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – application for extension to time to file application – application filed nearly two years out of time – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 414, 425, 430(1) & 477(2)

Lee, SCAR – a Full Federal Court decision; SZBEL 228 CLR 152
SZBEL v The Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
The Minister for Immigration and Indigenous Affairs v SCAR (2003) 128 FCR 553

Applicant: AZAFA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 189 of 2014

Judgment of: Judge Simpson

Hearing date: 1 September 2015

Date of Last Submission: 1 September 2015

Delivered at: Adelaide

Delivered on: 25 September 2015

REPRESENTATION

Counsel for the Applicant: Mr M Wait

Solicitors for the Applicant: National Pro Bono Project

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application for an extension of time pursuant to s.477(2) of the Migration Act1958 (Cth) filed on 2 June 2014 is refused.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of SIX THOUSAND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 189 of 2014

AZAFA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed on 2 June 2014 for an extension of time to file an Application for Judicial Review of a decision of the Refugee Review Tribunal (“the Tribunal”).  On 31 May 2012, the Tribunal affirmed a decision of the Delegate of the Minister to refuse an application for a protection visa.  The Minister opposes an extension of time being granted.

Background

1. The Applicant was born in Iran and is 60 years of age.  She is of Kurdish ethnicity and Sunni faith.  She is uneducated and has never been employed.  She has two daughters who live in Australia and one son who lives in Iran.  The Applicant arrived in Australia on 5 November 2010 on a visitor visa.  Almost five months later, on 31 March 2011, she lodged an application for a protection visa. 

2. The essence of the Applicant’s claim was that she and her family had been involved for many years with movements against the Islamic regime in Iran.

3. The Delegate refused the application on 25 November 2011. As indicated previously, the review by the Tribunal was similarly unsuccessful. On 31 May 2012, the Tribunal published its written Statement of Decision as it was required to do under s.430(1) of the Migration Act 1958 (Cth) (“the Act”).

The Tribunal’s decision

1. The Tribunal’s reasons shows that it had concerns with a number of the matters raised by the Applicant and that the Tribunal provided the  Applicant with an opportunity to comment.  For reasons which essentially turned on adverse credit findings, the Tribunal rejected the core aspects of the Applicant’s claims, namely her alleged fear of persecution.  The Tribunal gave detailed reasons for refusing the application.  In doing so, the Tribunal used language such as, “inconsistency in the account”, “vague”, “implausibly vague”, “unsatisfactory responses”, “concerns about the plausibility of her claims”, and the like.  Further, the Tribunal expressly considered, but rejected, the evidence provided by the Applicant to demonstrate the plausibility of her claims.  It concluded that none of the evidence overcame the underpinning problems of the Applicant’s credit. 

2. Having rejected the criterion for the protection visa under s.36(2)(a) of the Act, the Tribunal turned to consider whether the Applicant met the alternate criterion in s.36(2)(aa). It concluded that she did not. The Tribunal concluded by affirming the decision under review.

The Federal Circuit Court

1. On 2 June 2014, the Applicant filed an Application in this Court in which she sought to challenge the Tribunal’s decision.  She also sought an extension of time to file the Application for Review.  The Application was filed nearly two years after the decision.  The Application should have been filed within 35 days of the date of the migration decision. 

Applicant’s Case

1. The grounds of the Application for an extension of time stated as follows:

   “(1)The Applicant (and the Department of Immigration and Citizenship on her behalf) was seeking other avenues of protection, namely, intervention by the then Minister for Immigration and Citizenship, and more recently, the Minister for Immigration and Border Protection.  Significant delays were caused by the Federal election and several changes of Minister. 

   (2)The Applicant has only had legal representation since late April 2014.  She is a client of JusticeNet, a probono legal service with limited resources.”

2. The Applicant seeks final orders as follows:

   “(1)An order that the decision of the Tribunal be quashed.

   (2)A writ of mandamus directed to the Tribunal requiring them to determine the Applicant’s Application according to law.

   (3)An injunction restraining the Minister, by himself or by his Department, offices, delegates or agents, from relying upon the recommendations of the Tribunal.”

3. The grounds for the Application for final orders in relation to the challenge to the Tribunal’s decision are as follows:

   “The Tribunal fell into error in concluding that the Applicant lacked credibility because she denied having direct contact with the Iranian authorities (paragraph 89 of the Tribunal’s reasons) on the ground that:

   (1)There was no evidence before the Tribunal to support this conclusion.

   (2)It was irrational for the Tribunal to arrive at this conclusion.

   (3)It was unreasonable for the Tribunal to arrive at this conclusion.”

4. The Applicant relied on the following documents: an affidavit of Jane Catherine Cox dated 18 August 2015; an affidavit of Jane Catherine Cox dated 28 August 2015; an affidavit of Sherko Kirmanj affirmed on 3 September 2015; and a copy of the Applicant’s Application for exemption from paying court fees on the basis of financial hardship.

5. An application for an extension of time of nearly two years after the date specified may be granted if the extension of time is sought in writing, and if the Court is satisfied that it is, “necessary in the interests of the administration of justice to make an order extending time”. The familiar considerations that inform the exercise of the discretion under s.477(2) are:

   ·An application for an extension of time is not to be granted unless it is proper to do so;

   ·Legislative time limits should be taken into account and not ignored;

   ·There must be an acceptable explanation for the delay;

   ·Any prejudice to the Minister in defending the proceedings is a material factor militating against the grant of an extension, but the absence of prejudice is not enough to justify the grant of an extension of time; and

   ·The merits of the substantial application may be taken into account in considering whether the extension of time should be granted.

6. The Applicant’s case is that she has a strong case on the merits of the challenge to the Tribunal’s decision.  She argues that she was denied procedural fairness when she was before the Delegate to the Minister, as the translator that was assisting made numerous errors in translation.  She argues that the decision of the Tribunal was tainted by the lack of procedural fairness, as the Tribunal read and took into account the inaccurate transcript of the hearing before the Delegate.  She argues that as a result, the Court should quash the decision of the Tribunal and that orders should be made for the Tribunal to re-determine her application according to law. 

7. The Applicant points to a number of exchanges between the Delegate, the interpreter, and the Applicant, which the Applicant says resulted in the Delegate forming an adverse view of her case.  The Applicant argues that the Tribunal also had access to the interview between the Delegate and the Applicant and would therefore have also formed an erroneous impression of the Applicant.  The Applicant’s written submissions were as follows:

   “4.On 12 October 2011, the First Respondent's Delegate conducted an interview with the Applicant.  The Applicant speaks Iranian Kurdish Sorani and does not speak English.⁷ Although accredited interpreters in Iranian Kurdish Sorani are difficult to locate in Australia, ⁸ an interpreter did attend the interview conducted by the Delegate with the Applicant.

   5.In the course of that interview a series of material errors were made by the interpreter.  Of most significance, the interpreter misinterpreted the following exchange between the Applicant and the Delegate about the Applicant's claim that her house in Iran had been searched by the Iranian authorities whilst she was in Australia and that she had become aware of these events because the Iranian authorities had telephoned her daughter looking for the Applicant:⁹

   Delegate:How did you know this? How did you know they found something in the house?

   Interpreter:   How did you know that they found these things there?

   Applicant:They called my daughter ... later on when my son became aware of this ... they were  looking for him … they went to the house ... then they called my daughter ... they were after me ... when they couldn't find my son ... then they asked about me.

   Interpreter:   They were looking for her son, but cause they couldn't find the son, they ask for her, because they ring her daughter here ... Her daughter knew this news ...

   Pausing here, it is important to note in order to understand how the interview unfolds that the Interpreter has interposed an inaccuracy, namely that the authorities had rung the Applicant's daughter in Australia.  The Delegate immediately challenged what he had been led to believe was the Applicant’s evidence:

   Delegate:The government rang your daughter here?

   Interpreter:   The government there called your daughter?

   Pausing again, the Interpreter has made a further important error here.  Instead of accurately translating the question (which had been put by the Delegate because of the first error caused by the Interpreter), the Interpreter asked the Applicant whether the government "there “called” your  daughter, and thereby failed to put the gravamen of the Delegate’s question to the Applicant:

   Applicant:Yes, they called my daughter.

   Interpreter:   The government, there?

   Applicant:Yes , Islamic Republic called my daughter ... and she told me.  They said that they want me.

   Interpreter :  Yeah, they rang her daughter here, they ask her daughter, they wanted her ... they had been looking for her.

   Inexplicably, the Interpreter has compounded the first error by again inaccurately interposing the word “here”.  The Delegate, understandably, pursues the issue:

   Delegate:How does the government in Iran have your daughter's Australian phone number?

   Interpreter:   How the government in Iran have your daughter's phone number, here?

   Applicant:Well, because I have another daughter there.  They called my daughter and she called her older sister here.

   Interpreter :  Because she's got her other daughter ... they get her number from the other ... her sister.

   This is a further erroneous translation, which again appears to confirm to the Delegate that the Applicant’s evidence was that the Iranian authorities had rung her daughter in Australia.  Finally, the Applicant’s agent sought to clarify the situation:

   Agent:Can I clear something ... sorry, I think you can clarify with this interpreter, what she’s referring is my other daughter in Iran has my daughter’s phone number here and she informed the sister in here, not the government directly.  You can clarify with her ...

   Delegate:Alright, year ... you can just keep ...

   Interpreter:   Dear mom, your daughter she had the phone number of your daughter here ... is this correct?  She had your other daughter’s phone number ...

   Applicant:Yes.

   Interpreter :  The government did not call your daughter here ...

   Applicant:Yes, yes.

   Interpreter :  But to your daughter?

   Applicant:Yes, they called my other daughter and she called my sister here telling her they looking for my mother.  They want my mother ... they putting pressure on me that is why I am going to go hide.  They putting pressure on my sister asking her that you must bring your mom here and surrender her to us.

   Interpreter:   Yeah, that’s true.  They talk to the other daughter in Iran so she informed her other sister in here ... They talk ... you have to ... her daughter in Iran, they say we need, you have to ... ring your mother here.

   6.At the conclusion of this exchange the Delegate would have been left with the impression that the Applicant first claimed that the Iranian authorities rang her daughter in Australia, then confirmed this evidence twice, and then changed her evidence, at the end of the  interchange, when the Delegate expressed doubts.

   7.On 25 November 2011, the Delegate refused the Applicant’s application.¹⁰

   8.On review before the Tribunal, the Tribunal member listened to the interview that had been conducted by the Delegate. The Tribunal member would have gained the same erroneous impression when he listened to the interview as the Delegate had.¹¹  It is apparent from the following passage from the Tribunal’s reasons that the Interpreter’s errors did infect his reasoning process:¹²

   ‘At interview with the delegate she said that she was contacted at her daughter[‘]s house in Australia, and the Iranian authorities had obtained her phone number from her other daughter.  At hearing, the applicant denied having direct contact with the Iranian authorities about the incident.  The Tribunal considers that this inconsistency further erodes the credibility of the applicant’s claim.’

   9.This finding leads directly to the  rejection of the Applicant’s claim that her house was searched by the Iranian authorities.¹³  That claim was a central tenet of the Applicant’s claim for protection, the rejection of which led directly to the Tribunal’s ultimate conclusion.¹⁴

   10.On 5 June 2012, the Tribunal affirmed the Delegate’s decision.¹⁵

   Denial of procedural fairness

   11.The principles concerning the circumstances in which an error made in translation during an administrative decision making process will amount to a failure to afford procedural fairness are dealt with in a number of relatively recent Federal Court decisions.  It is not the case that all errors in translation will amount to a failure to afford procedural fairness.  The error must relate to a matter of significance in the context of the decision to be made.

   Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, 19 [29], 23 [45] (Kenny J)

   12.Nonetheless, it is important to note that it is only necessary to demonstrate that the error may have led to a material and adverse finding relevant to the decision. It is not necessary to demonstrate a precise causal link between the irregularity in the interpretation and the adverse result.

   SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212, 215-216 [10], 217 [18] (Allsop CJ, Robertson J agreeing at [74])

   W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788 (unreported), [35] (French CJ)

   SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 (unreported) , [71]-[81]

   13.The cautious principle espoused in the cases cited above is consistent with the general principle concerning the application of the doctrine of procedural fairness.

   Stead v State Government Finance Insurance Commission (1986) 161 CLR 141, 145-147 (Mason, Wilson, Brennan, Deane & Dawson JJ)

   Aronsen, Dyer & Grove, Judicial Review of Administrative Action (5th ed, 2013), 477-481 [7.380]

   14.In the present case it is, for the reasons set out above, possible to demonstrate a direct causal link between the errors of the interpreter and the adverse finding of the Tribunal regarding the Applicant's claim that her house was searched. Accordingly, the Applicant was denied procedural fairness.  Further, even if the particular error identified above had not been made, the Applicant was denied procedural fairness by virtue of the multitude of errors made in interpreting her interview.

   15.The same reasoning gives rise to alternative grounds of review, namely no evidence, irrationality and unreasonableness.

   Extension of time

   16.For the reasons outlined above, the merits of the Applicant's case are strong.  The First Respondent does not point to any prejudice suffered by the delay.  In all of the circumstances, including the Applicant's background, lack of education, inability to speak English, and reliance on pro bono migration and legal assistance, time to bring this application should be extended.

   7.There linguistic differences between Kurdish Sorani spoken in Iran and Kurdish Sorani spoken in Iraq: Affidavit of Jane Cox, 18 August 2018, [5].

   8.Affidavit of Jane Cox, 18 August 2018, [6]-[8].

   9.The passages set out in black were spoken in Iranian Kurdish Sorani, and the passages set out in red were spoken in English.

   10.Case Book, 61.

   11.Case Book, 84.

   12.Case Book, 92 [89].

   13.Case Book, 92 [90].

   14.Case Book, 90 [79], 93 [96]-[98].

   15.Case Book, 94.”

Respondent’s case

1. The Respondent submits that the Applicant’s case for judicial review of the Tribunal’s decision can be characterised as a case where the Applicant alleges that the Tribunal failed to properly conduct a review pursuant to s.414 of the Act, as it was required to do, because it failed to comply with its obligation to afford the Applicant a meaningful hearing pursuant to s.425. The High Court has stressed in many cases that the Tribunal has an imperative duty to provide the Applicant with a meaningful and fair hearing.[1]  In its reasons, the Delegate made it quite clear that he was concerned about the Applicant’s credibility. 

   [1]     see the cases of  The Minister for Immigration and Indigenous Affairs v SCAR (2003) 128 FCR 553 and SZBEL 228 CLR 152 at [33]-[35].

2. The Respondent says that notwithstanding any errors with translation that may have occurred at the stage of the Delegate interviewing the Applicant on 12 October 2011, the Applicant’s case must fail. 

3. The Respondent points out that in his reasons under the heading ‘Discussion’ the Delegate said:

   “In assessing whether or not there is (a) real chance of the Applicant holding a well-founded fear of persecution on his return to Pakistan or in the foreseeable future, I have considered his claims and situation to determine whether or not his fear is well-founded.

   I have concerns around some aspects of her story and its validity.  Inconsistencies exist between the written statement and statements made at interview.  During the interview, the Applicant was non-describe (sic), her accounts of key events lacked any kind of detail or substance.  Throughout the interview on numerous occasions, the Applicant was evasive, did not answer any questions directly and when questioned on the details of certain aspects of her claim, she became incoherent.”

4. The Respondent points out that when the matter came before the Tribunal on 24 April 2012, the Applicant’s credibility was still an issue. The Tribunal invited the Applicant to appear before the Tribunal to give evidence and make submissions as is required by s.425(1) of the Act. The Tribunal member was no doubt aware of the powers, discretions and obligations that he or she had. These powers, discretions and obligations have been helpfully addressed in the recent High Court decision of SZBEL v The Minister for Immigration & Multicultural & Indigenous Affairs[2], as follows:

   “33The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

   34Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

   35The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   36It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”

   [2] (2006) 228 CLR 152 at [33]-[36].

1. The issue raised by the Delegate’s decision in the present case was one of credibility and it was one which permeated the entirety of the Applicant’s claims.  That is made plain by reference to the following sections of the Delegate’s reasons:

   “I find it reasonable to expect someone who was surrounded by family who were actively against the regime to be able to give any details on the activities undertaken.  I find it implausible to believe that if their activities were of such that would cause the majority of her family to spend substantial periods of time incarcerated including herself, that should be unable to give some, or any detail on the activities which lead to those imprisonments.

   More recent events raise concerns on the Applicant’s credibility and legitimacy to claims of a subjective and objective fear.  In applying for her extension to her tourist visa, it was stated (by the Applicant) the reason for an extension was due to her daughter in Australia having problems with hand dermatitis since the birth of her child about a year ago.” (There was no mention of her fear of returning to Iran)

2. The Tribunal’s findings are to be found in paras.79 – 102 of the reasons.  The Tribunal did not accept the central aspects of the Applicant’s claims, namely that she has an adverse political profile, and that the events that she claimed transpired regarding her house being searched since her arrival in Australia, have actually transpired. 

3. The Tribunal considered that the Applicant’s evidence regarding her and her family’s prior association with a political group is vague and inconsistent.  The Tribunal noted that the Applicant’s reference to preparing political articles was not raised with the Delegate but raised with the Tribunal as the central activity of the group.  The Tribunal said that at interview the Applicant emphasised the armed fighting of the group but at the hearing only mentioned that guns were stored at her house.  The Tribunal considered that the inconsistency of this detail reflected badly on the Applicant’s credibility as a witness.

4. In relation to the suggestion by the Applicant about an incident involving the Iranian authorities searching her house, the Tribunal noted that in her statement of 29 March 2011, the Applicant stated that anti-Islamic material was discovered at her house and that it belonged to her son, Saman.  At the hearing, the Applicant was unable to identify what particular material had been located at her house and could not provide any basis for assuming that the items were political in nature.  The Tribunal noted that the Applicant said that her son was not involved in any political groups.  The Tribunal noted that it was in this context that it asked questions of the Applicant as to why she considered the items were political in nature or not (eg drugs or stolen property).  The Tribunal made it clear that it was not insinuating that the Applicant had drugs or stolen property at her house, but was attempting to explore why the Applicant thought the items were political in nature when there appeared to be no objective reason for doing so.  The Tribunal understandably considered that it did not receive a satisfactory response to its queries in this regard. 

5. The Tribunal considered that the Applicant had given an inconsistent account as to being contacted by Iranian authorities in Australia about the incident.  At interview with the Delegate, the Applicant said she was contacted at her daughter’s house in Australia and the Iranian authorities had obtained her phone number from her other daughter.  At the hearing, the Applicant denied having direct contact with the Iranian authorities about the incident.  The Tribunal in these circumstances was entitled to form an adverse view of the credibility of the Applicant.  The Tribunal said that it had, “… sufficient concerns as to the plausibility and consistency of the Applicant’s claims regarding this incident to reject the Applicant’s claims that her house has been searched by the Iranian Securities Services”.

6. The Tribunal indicated that it accepted the evidence of one of the Applicant’s daughters, Ms X, that she travelled to Iran on a recently issued Iranian passport after the incident, and after her mother had lodged an application for a protection visa.  The Tribunal stated that it considered implausible that someone would willingly travel to Iran in circumstances where their mother (the Applicant) held a fear of persecution arising out of the discovery of political material at her home held by her son (Ms X’s brother).

7. The Tribunal indicated that it inferred from the conduct of Ms X in travelling to Iran that there is no genuine fear on the part of the Applicant and her family members of interests in them for a political or any other reason. 

8. In paras 96 – 98, the Tribunal made findings that make it quite clear that the Application for Judicial Review is highly unlikely to be successful were the Court to order that the Applicant have leave to file an application out of time.  The findings were as follows:

   “96.The Tribunal does not accept that the applicant’s home was raided by Iranian security forces, and does not accept that any items of a political nature were seized.  The Tribunal does not accept that the applicant is wanted by the Iranian security services in connection with the seizure of illegal material at her home, and does not accept that the interest of the Iranian security services in her is aggravated by a pre-existing political profile.

   97.As the Tribunal does not accept the foundation of the applicant’s claims regarding her house being raised, the Tribunal also rejects the applicant’s claims that she will be harmed by members of her son’s friend’s family in connection with that incident.

   98.The Tribunal does not accept the central aspects of the applicant’s claims, and finds that she does not have a well-founded fear of persecution by reason of political opinion, imputed or otherwise, in the reasonably foreseeable future if she were to return to Iran.”

9. I am satisfied that the findings of fact that the Tribunal made were reasonably open to it on the evidence that was before it.  It cannot be said that any of the findings were affected by errors in translation during the interview that took place between the Delegate and the Applicant.

10. In my view, the reliability of the Tribunal’s decision can be decided on the findings of fact in relation to the three matters identified in paras.96 - 98.  The Applicant has not satisfied me that the Application for Judicial Review, if heard, would have a strong chance of success.  Taking this into account, I consider it inappropriate to grant the Applicant the extension of time that she seeks.

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

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 25 September 2015