Azz17 v Minister for Immigration

[2019] FCCA 889

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZZ17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 889

Catchwords:
MIGRATION– Administrative Appeals Tribunal – whether the inconsistencies in interpretation by the translator resulted in a lack of procedural fairness – whether the Tribunal failed to consider relevant information – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 116, 425

Cases cited:

BZAID v Minister for Immigration and Border Protection [2016] FCA 508

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507

First Applicant:  AZZ17

Second Applicant:  BAA17

Third Applicant BAB17

Fourth Applicant BAC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 484 of 2017

Judgment of: Judge Humphreys

Hearing date: 28 March 2019

Date of Last Submission: 28 March 2019

Delivered at: Melbourne

Delivered on: 28 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Montalban of DLA Piper

ORDERS

1. The application for judicial review filed on 9 March 2017 is dismissed.

2. The First Applicant pay the First Respondent’s costs in the sum of $8,322.16.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 484 of 2017

AZZ17

First Applicant

BAA17

Second Applicant

BAB17

Third Applicant

BAC17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is judgment in the matter of AZZ17 & Others v Minister for Immigration and Border Protection & Another.

2. The applicant, his wife and two children have filed an application against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 24 February 2017, which affirmed a decision of the delegate of the Minister for Immigration not to grant a Subclass 866 Protection Visa (‘Protection Visa’) for each of the applicants under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

3. The applicant appears on his own behalf with the assistance of an interpreter.

4. The applicant also appears on behalf of his wife and on behalf of his two children.

5. Ms Montalban appears for the respondent Minister.

6. The Court Book has been tendered before me, but in particular I note the following documents before the court

   a)The Tribunal decision of 24 February 2017

   b)The applicant’s written submissions dated 19 July 2018

   c)The Minister’s submissions filed on 27 September 2018

   d)An affidavit of the solicitors for the respondent annexing a copy and checked translation of the hearing.

7. The decision of the Tribunal in relation to the matter runs to some 17 pages. After setting out the relevant law in relation to protection visas at paragraph 6 of the decision, the Tribunal goes on to consider the evidence and claims of the applicant. In particular, at paragraph 21, the Tribunal stated the following:

   He (the applicant) was a deserter from the Sri Lanka air force. He was ordered to do wrong things and did not want to do what he was told to do. He had no option but to leave the air force. He came to Australia in 2008 as a dependent on his wife’s student visa. He returned to Sri Lanka in 2010 but the situation was not good. There are examples of army deserters who are held in Welikada Prison, being harmed. The authorities will put him in prison and there is no control in these prisons. They are controlled by underworld thugs. The authorities are corrupt and his human rights will be violated and he will not get justice.

8. The Tribunal went on to note at paragraph 22 of the decision that the applicant had a passport issued by the Sri Lanka authorities in December 2004. The Court notes that the issue of the passport in 2004 was after the applicant’s alleged desertion from the Sri Lankan Air force in 2001.

9. The applicant’s passport was renewed in 2008. A new passport was issued to the applicant on 17 October 2014. That passport was granted in Australia and the Court notes that this was after the applicant had made an application for a Protection Visa in May of 2014.

10. The Tribunal noted that the applicant had resided in Korea for work purposes between May 2002 and August 2007. He returned to Sri Lanka on 16 August 2007.

11. The applicant first arrived in Australia on 7 September 2008. He departed Australia on 28 August 2010 and returned to Sri Lanka. He returned to Australia on 11 October 2010.

12. At paragraph 24 of the decision, the Tribunal noted that the applicant’s wife did not commence her designated course of study and on 21 May 2013, the applicant’s WE050 bridging visa was cancelled under s 116(1)(b) of the Act due to a breach of condition 8101 when he was found working despite a condition of no work noted on his visa.

13. On 18 July 2013, the applicant was granted a bridging visa for Migration Review Tribunal merits review of the student visa cancellation. The applicant and his wife then applied for Ministerial intervention, citing concerns for their children’s reintegration into Sri Lankan society and financial issues. The applicant then applied for a bridging visa for departure, as the request for Ministerial intervention was unsuccessful.

14. On 12 May 2014, the applicant applied for a Protection Visa and was subsequently granted a bridging visa.

15. The Tribunal also noted that the applicant had returned to Sri Lanka on at least three occasions whilst employed in South Korea. The summary is that the applicant has been in Australia since 2010.

16. The Tribunal accepted that the applicant had been in the Sri Lankan air force from March 1993 until December 2001. The Tribunal noted country information that arrest warrants are issued for deserters in Sri Lanka so as to prevent their departure from Sri Lanka. The original delegate did not consider the applicant to be a credible witness and did not accept that he was wanted for desertion from the Sri Lankan air force.

17. The Tribunal was satisfied that each of the applicant, his wife and his children are Sri Lankan citizens and that is their country of nationality for the purpose of the Refugees Convention.

18. The Tribunal made a number of comments and set out the law in relation to the assessment of credibility of witnesses and in paragraphs 45, 46, 47, 48 and 49 set out the applicant’s evidence as to why he feared for himself if he was returned to Sri Lanka.

19. At paragraph 50, the Tribunal found that:

    …the applicant is not a person of interest to anyone arising out of not being involved in wrong things or forms of electoral violence prior to his leaving the Air force.

20. The Tribunal found that no one would be interested in the applicant for     this reason on his return to Sri Lanka, so long after his involvement in the air force.

21. The Tribunal found that the applicant does not face a real chance of serious harm or a real risk of significant harm for that reason. The Tribunal dealt with the claim and did not accept that people who desert the military forces in Sri Lanka end up working for criminals or ministers. It noted that there are some 60,000 deserters from the Sri Lankan military and from time to time authorities have declared amnesties to allow these deserters to return.

22. The Tribunal did not accept that the Sri Lankan authorities are unable to find deserters because of criminal or political protection. The Tribunal did not accept the applicant’s claim that he will be approached by criminals or political interests because of his history as a deserter or because of his weapons training undertaken some 16 years ago.

23. In coming to this conclusion, the Tribunal, at paragraph 58, noted that the applicant had applied for and received a passport on three occasions with no difficulty. The Tribunal noted that the applicant had repeatedly travelled in and out of Sri Lanka in 2002, in 2005 twice, 2006, 2007 and 2008 and, finally, in 2010 on the passports and that the applicant had no difficulties with authorities on these occasions.

24. The Tribunal noted that the issue of his passport in October 2014, bearing in mind he had applied for a Protection visa in May 2014, was very unusual.

25. The Tribunal went on to consider available country information and, at paragraph 65, indicated that the information demonstrated Sri Lankan authorities have a coordinated system of information management dealing with passports and travel in and out of Sri Lanka and that contrary to the applicant’s submissions, country information does not support his contention that he could enter and exit without coming to the attention of authorities.

26. The Tribunal considered that the information demonstrates the applicant was not a person of interest to the authorities and that this was despite the applicant’s desertion from the air force in 2001. The Tribunal questioned the applicant’s history in Australia, noting his arrival in 2008 and his travel in and out of Sri Lanka prior to coming to Australia.

27. At paragraph 75 of the Tribunal’s decision, the Tribunal considered that the lodging of the Protection Visa in 2014 was done after the Student visa option was exhausted and that the applicant believed that this was the best way for him to seek to remain in Australia.

28. The Tribunal found that if the applicant had concerns for himself on return to Sri Lanka, he would have raised it with the Minister. He did not do so, rather raising issues of money and prolonged absence which included his then child having no connection with Sri Lanka.

29. At paragraph 89, the Tribunal considered that:

    …the applicant has no fear of being harmed on return to Sri Lanka having deserted from the Air force in 2001

30. The Tribunal considered that the applicant has voluntarily returned on a number of occasions knowing he will not face harm. The Tribunal found he did not lodge a Protection Visa in Australia for some six years after his initial arrival because he does not fear harm on return to Sri Lanka.

31. The Tribunal found that the applicant is not a person to whom Australia has any protection obligations nor was the applicant entitled to consideration under the complementary provisions.

32. The Tribunal found that in relation to the applicant’s wife and children, their claim to stay in Australia hinged on his application and the Tribunal found that it did not consider that the return of the children, as they are Sri Lanka citizens, constitutes serious or significant harm.

33. I have extensively outlined the decision of the Tribunal because it is relevant in relation to the claims that have been made that the Tribunal hearing was unfair and that the applicant was unable to put forward his case.

34. In the applicant’s initial application to the Court, the applicant relied on some 15 separate grounds for review by the Court. These have been abandoned and effectively the only claim made by the applicant are errors he claims occurred during the course of the translation during the Tribunal hearing.

35. The applicant has provided an outline of submissions, which indicates four areas of concern, each of which is relatively brief in relation to what was an hour and a half hearing.

36. During the course of the Tribunal hearing, I outlined the relevant law in relation to a breach of procedural fairness where there are faults in translation and in particular the case of BZAID v Minister for Immigration and Border Protection[1] at paragraphs 50 to 54.

    [1] BZAID v Minister for Immigration and Border Protection [2016] FCA 508.

37. Edelman J summarised the relevant legal principles concerning whether defective administration would cause a denial of procedural fairness under s 425 of the Act, noting that in Perera v Minister for Immigration and Multicultural Affairs[2] it was said:

    Whilst the interpretation of the Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must nonetheless express in one language as accurately as that language and circumstances permit the idea or concept as it has been expressed in the other language

    [2] Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507.

38. His Honour went on to summarise the principles, noting that whether or not inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise and it will depend on the particular circumstances.

39. Where there are errors and they of an intermittent nature, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, errors may not be significant, they may demonstrate in aggregate a pattern that indicates a denial of procedural fairness.

40. His Honour then went on to state that:

    It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context

41. Bearing in mind those legal principles, I now turn my attention to the issue of the particulars that are raised by the applicant in his submissions. In this regard, I have been aided by the Minister’s submissions in which a checked translation by Mr Soza has been provided.

42. The first matter is about 51 minutes and 45 seconds of the audio recording and relates to an exchange that occurred on page 13 of the transcript at about lines 5 to 20. I quote:

    Tribunal:  Have you got – you say there’s people who have gone and joined the underworld thugs despite the fact that the army can’t find them or that are – they’re working closely with Ministers. Can you find – can you explain to me why these people can’t be found by the army.

    THE INTERPRETER:  The Ministers give security to – to these gangs as well as the underworld.

    Tribunal:  So have you got country information to support this because I’ve not seen anything of this nature.

    THE INTERPRETER:  There have been many Ministers and there have been others who have been affiliated to the army who have previously been with the forces so they –

    Tribunal:  But you’re talking about 30,000 people you say have been hidden by Ministers, which I say is complete – not – which is not true.

43. The checked translation says that the applicant’s response is in the following terms:

    Some time ago there was a famous Minister called Mervyn Silva. He was caught – a famous incident at the national television station Rupavahini. The Minister and his disciple were beaten up at the Rupavihini television station. Even this disciple was with the army before. After that, the person for the murder of Bahalatha Lakshman Premshandara was an ex-army personnel called Dematogoda Chamida

44. There is no doubt that the translation does not include that detail as it appears in the checked translation.

45. As is noted in the respondent’s submission, the interpreter’s response in English is partly inaudible and therefore the detail provided is likely to coincide with the translation of the applicant’s additional data in relation to the identities of the particular ministers.

46. Essentially, the respondent suggests that the detail may have been given, but was simply not recorded, in that it may not be the interpretation that was inaccurate, but it may be that the transcript has not been accurately transcribed. The respondent submits that nothing turns on this issue and that it was not material which formed part of any adverse conclusion of the Tribunal and is thus therefore not capable of established jurisdictional error. The Court agrees with that submission.

47. The Court is satisfied the Tribunal clearly came to grips with the applicant’s claim that those who deserted from the armed forces either worked for the underworld or were hidden from the armed forces by ministers. Therefore, the material was not adverse to any conclusion of the Tribunal. It is clearly detailed but it does not go to the essential element of the claim, which was not accepted by the Tribunal.

48. The second issue relates to a section of around about 56 minutes 09 seconds of the audio recording and an exchange that occurred on page 15 of the transcript at around lines 5 to 15. I quote:

    Tribunal: I have significant doubts you need protection at all. The only reason you are making this up, you want to stay because of finance. You don’t want to go back because you’ve got financial reasons.

    The INTERPRETER: If I was alone then, I would have gone back. My father died. In two years, he was on a sickbed. I couldn’t go.

49. The applicant’s written submissions complain about the interpretation of that statement.

50. The checked translation of the applicant’s response in Singhalese is in the following terms:

    I really can’t leave. That’s the reason for not going. My father passed away after two years of being bedridden. Even then, I couldn’t go to Sri Lanka.

51. The Court is aware that interpretation is a matter of some skill and what one interpreter may interpret from Singhalese into English, another may interpret differently, but essentially it conveys the same meaning.

52. The Court is satisfied that the interpretation at the Tribunal hearing was a reasonable interpretation of what was said and even if there is a difference, it is not substantial and it was not material to any adverse conclusion by the Tribunal.

53. The third complaint relates to the point 1 hour, 8 minutes and 41 seconds on the audio recording, which occurs at page 20 of the transcript at around lines 5 to 20. There was the discussion about what could happen to him if he went to prison and the interpreter is quoted as saying:

    Even outside the prisons, these are the problems I mentioned. They happen

54. That was in relation to underworld thugs. The checked translation states the following:

    I told this at the interview the other day. I told this and even showed photographs taken from the internet depicting how I will be treated, meaning the treatment I will receive if jailed. There were some prisoners killed in jail two years ago and such problems exist. I also said that even if not incarcerated, I cannot stay freely

55. Again, there is quite a bit of detail there that is missing, but the Court is aware of some of the pressures that are faced by interpreters. The Court is particularly aware of the impact of interpreting continuously for long periods of time and that after an hour and eight minutes, this could have affected the way the interpreter dealt with the issue. Best practice is that an interpreter should be given a break after an hour because of the intense concentration that’s required to affect a high standard of interpretation.

56. Even though that detail is missing, it’s clear that the Tribunal took into account the expressed harm the applicant suggested he would face if he went back, in that he was fearful of being imprisoned.

57. The Tribunal found, however, that there was no real chance of him being imprisoned because he was a deserter. Whilst noting the omission, the Court is satisfied it did not adversely impact upon the applicant’s case and is not the result of a jurisdictional error.

58. The last complaint by the applicant relates to 1 hour, 33 minutes and 3 seconds of the audio recording. It relates to an exchange that occurred near the end of the hearing, which appears on page 22 of the transcript at lines 5 to 20.

59. There was an exchange about whether or not the applicant had received any formal documentation regarding leaving the air force. The interpreter is quoted as saying in the transcript:

    I haven’t received any letters. The systems are such – is such a disorganised place. If I don’t get transferred from one section to another, it takes another to another. It sometimes takes six to 12 months to get our pays organised. So it’s such a disorganised place, so I don’t think that they will even notice my absence until maybe over a year. So I haven’t received any letters

60. The checked translation is as follows:

    It’s like this. If we’re transferred from one camp to another, it takes around six to seven months to make changes to our salary. Such are the prevalent systems. Likewise, to receive a letter with regard to my absence, to be notified internally may take close to a year. The process takes it course step by step, with relevant files moved around, hence I did not receive such a letter

1. I am not satisfied that there was a material difference between those two translations and, of course, the advantage that Mr Soza had when doing the checked translation is that he would have been able to listen to the audio of the hearing more than once to make sure he got exactly what was said. The translator in the hearing, of course, was doing it on the run.

2. I am of the view that it made no difference to the outcome of the Tribunal’s decision. The Tribunal clearly understood what he was saying in relation to the lack of any documentation and, accordingly, there was no jurisdictional error as a result of that issue.

3. Accordingly, the grounds for the application are not upheld and the application is dismissed.

4. The Court is not prepared to order above scale costs. The Court is prepared to order an amount of $8322.16, being the standard amount on scale of $7006 together with the costs of the checked translation of $1116.16.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 10 April 2019

Correction (30 September 2019)

1. Reasons for Judgment: Paragraph 34, page 6 - changed from

   “These have not been abandoned and effectively the only claim made by the applicant are errors he claims occurred during the course of the translation during the Tribunal hearing.”