AZAFH v Minister for Immigration

[2016] FCCA 1315

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1315

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to properly consider the applicant’s claims – whether the interpretation services provided to the applicant were inadequate – whether the Tribunal improperly relied on information provided through inadequate interpretation – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.52, 476

Applicant: AZAFH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 312 of 2014

Judgment of: Judge Street

Hearing date: 24 May 2016

Date of Last Submission: 24 May 2016

Delivered at: Adelaide

Delivered on: 24 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Eaton

Solicitors for the Applicant: Bourne Lawyers

Counsel for the First Respondent: Mr Tredrea

Solicitors for the First Respondent: Sparke Helmore

ORDERS

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

2. The further amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 312 of 2014

AZAFH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect to the decision of the Tribunal made on 9 July 2014, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Liberia and his claims were assessed against that country.

2. The applicant claimed to fear persecution at the hands of former rebels who are responsible for atrocities perpetrated against his family and claimed to fear harm from his ex-partner’s father, who is Muslim, because he is a Christian.  The Tribunal found the applicant did not have a well-founded fear of persecution for a convention reason.  The Tribunal found that there was only a remote chance the applicant would be killed or otherwise harmed by the son of Isaac Musa, being Jennenton Musa, his associate former rebels, his former father-in-law or Islamic groups.

3. It was in those circumstances the Tribunal found that the applicant did not face significant harm in Liberia and was not satisfied that the criteria under s.52 of the Migration Act 1958 was met on the affirmed decision of the delegate.  The grounds of the further amended application, relevant to the proceedings, are as follows: 

   1. The second respondent failed to properly consider the applicant’s claim due to language difficulties and inadequate interpretation:

   a. the interpreter arranged by the second respondent and present for the hearing of the applicant’s oral evidence was an interpreter in Liberian English, not the applicant’s native language of Kissi;

   b. Most of the hearing was conducted without any assistance from the interpreter even when communication difficulties were manifest;

   c. the second respondent’s reasons for decision contain factual errors in their account of the applicant’s oral evidence;

   d. these factual errors are relied upon by the second respondent as a basis for refusing the applicant’s claim.

   …

   6. The decision of the second respondent contained error going to jurisdiction by relying on flawed communications with the applicant in circumstances where there was inadequate interpretation of the applicant’s oral evidence.

   …

4. Ms Eaton, counsel for the applicant confirmed that grounds 2 to 5 and ground 7 and 8 were no longer pressed.

5. The Court had tendered before it a transcript prepared from the recording of the hearing before the Tribunal.  That transcript identified difficulties faced by the person transcribing the recording.  The applicant prepared an affidavit by reference to the recording purporting to complete parts left unclear by the original transcriber of the transcript put into evidence by the applicant.  Counsel for the applicant confirmed that this is not a case where it is suggested that the interpreter made any errors in that evidence which was the subject of interpretation by the interpreter.

6. Rather, the kernel of the argument developed by Ms Eaton on behalf of the applicant was that the Tribunal failed to use the interpreter and permitted the applicant to give direct evidence in circumstances where an interpreter should have been used.  At the commencement of the hearing, the Tribunal member identified the importance of the applicant and the interpreter understanding what was said.  There was also reference to the potential obtaining of a Kissi dialect interpreter, and the applicant conveyed that he understood the interpreter being used by the Tribunal.

7. The Tribunal member proceeded to conduct the hearing in part using the interpreter and in part directly asking questions of the applicant, to which the applicant responded.  The transcript does not reveal a difficulty with the communications between the Tribunal member and the applicant direct.  Where the Tribunal member thought necessary, the Tribunal member asked for the interpreter to assist.  It is clear from the transcript that the Tribunal member sought to explore with the applicant, the applicant’s claims and raised with the applicant the Tribunal’s concerns in relation to those claims.

8. Counsel for the applicant contended that the applicant was given an assurance by the Tribunal member that the Tribunal member understood the applicant very well.  There was an exchange where the Tribunal member did convey that she understood the applicant very well.  That was not, however, an assurance. It is clear from the conduct of the hearing, revealed by the transcript, that the Tribunal member did understand the applicant’s evidence.  Counsel for the applicant sought to identify two matters the subject of alleged factual error by the Tribunal.

9. The first related to evidence given by the applicant about the alleged closeness of the family relationship between his family and Isaac Musa.  The second error related to an incident in 2012 and the applicant’s oral evidence about whether that incident was generalised and whether the applicant was targeted in relation to that incident. 

10. In relation to the first alleged error, the Court was taken to the findings made by the Tribunal in relation to the applicant’s claimed fear of Isaac Musa’s son and other rebels.  Relevantly, the Tribunal found that the applicant has a subjective fear of harm from Jennenton Musa and former rebels but that his fear does not meet the objective requirement of being a well-founded fear.

11. The Tribunal identified the circumstances in which that fear arose, notwithstanding that Isaac Musa was dead.  The applicant claimed he would be targeted because his father was killed in 1992 by Isaac Musa and the applicant contended that he believed that prior to dying, Isaac Musa told his son, Jennenton Musa, to kill the applicant because he might try to hold the applicant criminally responsible for his father’s death.  It was that claim that the Tribunal proceeded to address in detail, and the Tribunal found that it accepted that Isaac Musa was responsible for the death of the applicant’s father and that he had not been prosecuted for that claim.

12. The Tribunal set out the applicant’s claim that Isaac Musa’s son might be alive to the fact that the applicant might seek justice for his father’s death. The Tribunal identified that the applicant said he had no interest in doing this, but he believes that Jennenton Musa was told that that could occur and that accordingly, Jennenton Musa and former rebels would kill him if he returns to Liberia now.

13. The Tribunal made a finding that the applicant’s subjective fear does not meet the threshold of a real chance, but rather, it is speculative and remote.  The Tribunal provided reasons in support of that finding. The first reason being that it was not plausible that Jennenton Musa and his associates want to kill the applicant now, because Isaac Musa, prior to his death, told him to kill the applicant in case he wants to seek justice for his father’s death.  Secondly, the Tribunal said it was not satisfied the applicant’s past experience in Liberia demonstrated that he will be harmed. 

14. The Tribunal expanded on both those propositions, identifying that it had considered the likelihood that a high level former general and adviser to Charles Taylor would have told his son or any associate to kill the applicant, and whether there is a real chance that they would want to kill the applicant.  The Tribunal said there is a remote chance that Isaac Musa would have been concerned about his criminal responsibility for killing the applicant’s father, even if he knew him personally, such that he would tell the son to kill the applicant.

15. The reference to even if the applicant’s father knew him personally is relevant because that is the source of the first error advanced by counsel for the applicant in relation to the applicant’s evidence as to the close connection between the families.  The Tribunal found there is a remote chance that the son of Isaac Musa or any associate would want to kill the applicant in Liberia. 

16. The Tribunal then turned to address whether past experiences in Liberia demonstrate a real chance the applicant will be harmed by Isaac Musa’s son or any associates.  In the course of reaching its final conclusion in that regard, the Tribunal referred to various incidents, including an incident in 2012.  That incident in 2012 is one where the Tribunal recorded the applicant stated in his oral evidence that this was generalised violence and not specifically directed against him.

17. The Tribunal, in relation to that incident, referred to the applicant’s oral evidence to the Tribunal in which the applicant said the attack was generalised and not directed against the applicant.  The Tribunal continued to find a subjective fear by the applicant that he was targeted at the house at which he was staying and said that this fear was understandable in light of the applicant’s ongoing trauma from experiences during the war in Liberia 20 years ago.  The Tribunal found, on the evidence before it, that the attack was generalised and random.

18. The Tribunal referred to the applicant having a high subjective fear of being killed by Isaac Musa’s son or his associates but found the chance of him being harmed now and in the reasonably foreseeable future as speculative and remote.  The Tribunal found the applicant’s risk of persecution falls below the real chance threshold. 

19. It was in those circumstances the Tribunal found on the evidence before it that the applicant does not have a well-founded fear of persecution by Jennenton Musa or any of his associates or former rebels in Libera.  The Tribunal held that it did not need to consider the issue of nexus between the harm for a conventional reason.

20. The Tribunal member expressly referred to the fact of the applicant’s evidence as to being neighbours and referred to Isaac Musa knowing the applicant’s father rather than a personal relationship.  The Tribunal member also identified that the applicant’s father was known to Isaac Musa because he was with the AFL, and that is why Isaac Musa targeted the applicant’s father. 

21. There was nothing in the transcript that supports the proposition that there was a factual error in the Tribunal member’s understanding of the evidence given by the applicant in relation to the alleged close connection between the families.  The first alleged error to which counsel for the applicant refers does not make out any communication difficulty between the applicant and the Tribunal member in respect to the evidence that was adduced otherwise than by use of the interpreter

22. The second error was one in which the transcript identifies that the 2012 incident was raised and explored by the Tribunal member with the applicant and whether or not there was targeting of the attacks on the house or whether the problems with the further rebels in the town and insecurity were general.  The applicant responded, “Security generally, but I was still”, and there is a completion in the transcript, “targeted”.  It is clear the member understood that evidence because the member then responds, “You were targeted?” and the applicant said, “Yeah”.

23. The transcript does not reveal any misunderstanding by the Tribunal member of the applicant’s evidence.  Counsel for the applicant identified that there was a reference in para.56 by the Tribunal to the 2012 incident not being specifically directed against the applicant.  Counsel for the first respondent accepted that the concept of directed and targeted should be treated as potentially interchangeable. 

24. The reference to the applicant in his oral evidence, saying that the attack was generalised and not directed against him does reflects an arguable factual error given that the applicant referred to both it being general and that he was targeted.  But that concept of the applicant being targeted was clearly understood by the Tribunal on the transcript and, indeed, in para.56, the Tribunal went on to address the applicant’s subjective fear that the attack was targeted.

25. The Tribunal, however, concluded that the attack was generalised and random.  That adverse finding was open to the Tribunal on the evidence before the Tribunal.  The factual error to the extent that there is a reference to the applicant’s evidence, not suggesting that the 2012 incident he believed was directed against him, is not a material error and is not an error that demonstrates any difficulty with the communication between the Tribunal and the applicant.

26. Accordingly, the Court finds that there were not language difficulties or inadequacies in the interpretation that occurred during the hearing or in the direct evidence and submissions by the applicant to the Tribunal.  The Court finds that the hearing is one in which the applicant had a real and genuine opportunity to present his claims and evidence.  The Court notes that the applicant was represented at the hearing by a migration agent and provided further submissions after the hearing.  The Court notes there was no suggestion, either during the hearing or afterwards, that there was a problem with the Tribunal member’s direct English engagement with the applicant.

27. The applicant was given an opportunity, if he wished, to have a native speaker in the language of Kissi provided, and the applicant did not pursue that opportunity.  The absence of pursuing that opportunity does not give rise to any unfairness in the conduct of the hearing by the Tribunal.  Nor does the direct communication by the Tribunal member with the applicant and intermittent use of the interpreter, reflect any unfairness in the hearing of the applicant’s claims and argument.

28. I reject the proposition that there were language difficulties or interpretation difficulties in the conduct of the hearing.  I find that there were no material communication difficulties in the conduct of the hearing before the Tribunal.  I reject the proposition that there were any material factual errors that arose in the context of the communications between the applicant and the Tribunal member in the course of the hearing. Ground 1 fails to make out any jurisdictional error. 

29. Ground 6 was in substance addressed at the same time and on the same material.  I do not accept that there were any flawed communications between the Tribunal member and the applicant. No inadequate interpretation of the applicant’s oral evidence was established on the evidence before this Court.  Ground 6 fails to make any jurisdictional error.

30. The further amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:2 June 2016