Biq18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 607
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BIQ18 v Minister For Immigration, Citizenship And Multicultural Affairs [2022] FedCFamC2G 607
File number: MLG 742 of 2018 Judgment of: JUDGE RILEY Date of judgment: 3 August 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal overlooked important evidence – whether the Tribunal failed to consider the case as put. Legislation: Migration Act 1958 s.65.
Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; (2018) 361 ALR 227; [2018] FCAFC 133
MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; (2015) 328 ALR 433; (2015) 67 AAR 159; [2015] FCAFC 133
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17.
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 21 July 2022 Place: Melbourne Counsel for the Applicant: Angel Aleksov Solicitor for the Applicant: Carina Ford Lawyers Counsel for the First Respondent: Kylie McInnes Counsel for the Second Respondent: No appearance Solicitor for the Respondents: Clayton Utz ORDERS
MLG 742 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIQ18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
3 AUGUST 2022
THE COURT ORDERS THAT:
1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 23 March 2018 and amended on 27 June 2022 be dismissed.
3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Refugee Review Tribunal, which is now the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection (class XA) visa under s.65 of the Migration Act 1958.
The application was filed more than four years out of time. The court granted an extension of time on 21 July 2022 for reasons given on that day.
MATERIAL RELIED UPON
At the hearing before this court, the applicant relied upon:
(a)his amended application filed on 27 June 2022;
(b)his amended written submissions filed on 27 June 2022; and
(c)the court book filed on 20 March 2019.
At the hearing before this court, the Minister relied upon:
(a)his response filed on 19 April 2018; and
(b)his written submissions filed on 11 July 2022.
BACKGROUND
At paragraph 19 of his written submissions opposing the extension of time application, the Minister summarised the applicant’s claims as follows:
•He was born and raised in [a particular city in Iran] and is an Arab and belongs to [a particular tribe] and is a Shia Muslim.
•In 2007 he was detained, beaten and verbally abused by police for having a bottle of whisky in his possession and for being Arab. He was charged and jailed for 7 days and fined.
•In early 2010 he took up a cooking job at the Islamic school [in his city] and was not treated well by the director or overseer of the school, [Mr X], who is the son of the Friday prayer leader in [his city], [Mr Y].
•In mid 2011 the applicant’s pay was docked for some oil that went missing from the school kitchen as he was responsible for keeping track of the stock in the kitchen. The applicant pleaded with his superiors that he had no knowledge of the missing oil.
•In late February 2012 [Mr X] and some of his men walked into the school kitchen with a list and began taking items from the shelf. The applicant challenged [Mr X] and his men as they did not have written permission from the applicant’s immediate supervisor to take the items and as a result the cost of the items would be docked from the applicant’s pay.
•An altercation ensued between him and [Mr X] resulting in [Mr X] falling on the slippery floor onto his hip and yelling out in pain and the applicant fled to a nearby village and stayed with a friend.
•While at his friend’s he was informed by his brother that [Mr X] had come to his house on two occasions and were looking for him and verbally insulted his family and pushed his mother which led to her hospitalisation for a heart condition.
•He left Iran on 3 March 2012 and fears that he would be persecuted by [Mr X] and/or the Iranian authorities if returned.
•[Mr X] is a property owner and powerful in [the applicant’s city] and the applicant is an Arab.
THE TRIBUNAL’S REASONS FOR DECISION
The Tribunal’s reasons for decision are in an unusual form. The reasons consist of 20 paragraphs, and have two attachments. Attachment 1 sets out the relevant law. Attachment 2 sets out the applicant’s evidence and claims. Much of attachment 2 is in the form of direct quotations from the relevant documents.
In his written submissions opposing the extension of time application, Minister summarised the Tribunal’s reasons for decision as follows:
20. The Tribunal set out the applicant’s evidence and claims as set out in his original visa application, the applicant’s submissions dated 26 April 2013, during the Tribunal hearing, the applicant’s post-hearing submissions dated 7 June 2013, and the statutory declaration of the interpreter: CB 266 [4]-[5] and CB 273-285 Attachment 2.
21.Like the delegate, the Tribunal found the applicant’s account of the alleged incident with [Mr X] to be unconvincing and had concerns about the applicant’s credibility: CB 266 [6].
(a) The Tribunal considered the applicant’s evidence that the biodata interview contained a mistranslation and that in respect to the question ‘why are you seeking Australia’s protection?’, rather than answering ‘I want to live comfortably here. I want to have some peace’, that correct translation was ‘I want to live. I want to have peace.’ Regardless of whether there was a translation error, the Tribunal had difficulty accepting that someone who feared being imprisoned and killed by Iranian authorities would answer the question ‘in such a glib way’. The Tribunal considered the applicant’s submission that it was a reasonable summary of his situation; however, the Tribunal remained unconvinced by this submission given the applicant’s subsequent claims: CB 266 [7].
(b)The Tribunal noted that the written record of the entry interview recorded that the applicant stated that [Mr X] and three other men (escorts) came to the kitchen and wanted to take cooking oil and other kitchen supplies and, when the applicant refused to let them, they pushed him around and started kicking and hitting him. [Mr X] then picked up a kitchen object and hit the applicant on the wrist. The applicant defended himself and pushed [Mr X]. The Tribunal found this account not to be consistent with the applicant’s description of the incident provided at hearing. The inconsistency was whether the bodyguard hit him or whether he just thought that he was going to be attacked by the bodyguard: CB 266-267 [8].
(c)The Tribunal also found that there was inconsistency in the applicant’s evidence about how many escorts there were. The Tribunal noted the statutory declaration of [Ms Z] (a migration agent from the same firm as the applicant’s adviser who is NAATI 2 accredited in the Persian language), which gave a cursory translation of the entry interview. The statutory declaration said that the recording was extremely poor and it was unclear whether the speaker said ‘3 others’ or ‘3 of them’. The Tribunal had difficulty relying on the cursory translation given its brevity and format. The Tribunal was not prepared to conclude that the applicant did not say that [Mr X] was accompanied by three people because the recording was unclear and [Ms Z] did not know what the applicant said. For that reason, the Tribunal preferred the written record of interview: CB 267 [9].
(d)The Tribunal observed that the manner in which the applicant gave evidence led the Tribunal to form the impression that the applicant was not recalling an event which had in fact occurred but was making up evidence as he went along: CB 267 [10].
(e)The Tribunal had difficulty understanding why the applicant would confront his manager’s manager (who could presumably sack him) about stealing goods. The Tribunal was also unconvinced that the claimed manner of escape was possible: CB 267 [10].
22.Given these matters going to credibility, the Tribunal was not satisfied that the claimed incident with [Mr X] occurred: CB 268 [11].
23.The Tribunal was not satisfied that the applicant would be imputed to have an anti-Iranian political opinion or that he was at risk of being persecuted simply because of his ethnicity: CB 268 [12].
24.The Tribunal considered the applicant’s claims that he had been arrested for drinking alcohol. The Tribunal found that the restrictions on consuming alcohol were laws of general application, that the applicant had been arrested quite some time ago and did not accept that anything adverse subsequently happened to the applicant. The Tribunal was not satisfied that there was a real chance that the applicant would be harmed in Iran in the reasonably foreseeable future because of that event: CB 268 [13].
25.Based on country information, the Tribunal did not accept that there was a real chance that the applicant would face serious harm as a returned asylum seeker or would be imputed with the political or anti-regime opinions having sought asylum: CB 268 [14].
26.The Tribunal did not accept that the applicant’s claim that people ‘look down on Arabs’ would constitute harm serious enough to amount to persecution: CB 269 [15].
27.The Tribunal considered the applicant’s claims individually and cumulatively and found that it was not satisfied that the applicant was owed protection: CB 269 [16]-[17].
28.For the same reasons, the Tribunal did not accept that there are substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia there is a real risk that he would suffer significant harm: CB 269 [18].
29.The Tribunal affirmed the delegate’s decision to not grant the visa: CB 270 [20].
GROUND 1
The first ground of review in the application filed on 23 March 2018 and amended on 27 June 2022 is:
The second respondent failed to consider important evidence in relation to the “Biodata interview” being that the applicant’s supposedly “glib” response was in response to a question that sought an answer of one sentence only.
This ground was based on the type of jurisdictional error identified in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; (2018) 361 ALR 227; [2018] FCAFC 133, namely, overlooking important evidence. In AVQ15, the Full Court of the Federal Court found that the Tribunal overlooked a transcript of an interview with the applicant when concluding that his evidence had been inconsistent. The Full Court considered that the evidence overlooked in AVQ15 was sufficiently important in the context of that case to make the overlooking of it a jurisdictional error.
In AVQ15, the Full Court made it clear that not every item of evidence overlooked, or not expressly mentioned, would result in jurisdictional error. The Full Court said:
41. …
c.… Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
…
e. Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
f. Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
This ground concerns the applicant’s answers to two questions in his first interview after arriving in Australia, being his Biodata interview. Question 20 was, “Are you seeking Australia’s protection?”. The applicant answered “Yes”. Question 21 was, “Why? (1 Sentence)”. The applicant’s answer is recorded as “I want to live comfortably here, I want to have some peace.”
The Tribunal dealt with these answers in paragraph 7 of its reasons for decision, where it said:
In his initial Biodata interview dated 14 April 2012, it is recorded in writing that when asked 'why are you seeking Australia's protection', the applicant answered 'I want to live comfortably here, I want to have some peace'. [In a statutory declaration at CB247] … [Ms Z] … states [that] she is a migration agent with the same firm as the [applicant’s] adviser and that she is NAATI 2 accredited in the Persian language, has stated the correct translation is 'I want to live. I want to have peace'. Even if that is accepted, the Tribunal has some difficulty accepting that someone who feared being imprisoned and killed by the Iranian authorities including [Mr X] and [Mr Y] as stated in his written statement on 13 July 2012 would answer the question 'Why are you seeking Australia's protection'? on 14 April 2012 in such a glib way. Whilst the adviser has stated it is a very reasonable summary of his situation and suggested he had numerous complaints against the Iranian regime, not all of which were serious enough by themselves until the final incident with the son of the Friday prayer leader, the Tribunal remains unconvinced by this submission given the applicant's subsequent claims in his statement.
In his amended written submissions filed on 27 June 2022, the applicant said in relation to ground 1:
8.At Reasons [7], Tribunal expresses criticism of the applicant’s answer to a question at the “Biodata interview” about his reason for his coming to Australia; it is said to be a “glib” answer. Read fairly in its context, the use of the word “glib” is meant in its pejorative sense. The significance of the point is that, in the Tribunal’s mind, a person who had lived through what the applicant was claiming would not be so glib in response to that question, even at a biodata interview, indicating that the applicant was not recounting from lived experience.
9.Being the first engagement between the applicant and Australian authorities in relation to his protection claims, it was evidently an important matter influencing the way in which the remainder of the applicant’s evidence was viewed. Human experience suggests that a person who gives false or improbable evidence as to the beginning of the narrative faces a much harder task in persuading the audience of all else which follows.
10.However, the Tribunal ignored that the question asked of the applicant expressly called for a one sentence answer – see CB 3, Q21 (point 6 on the page). This is analogous to AVQ15 [2018] FCAFC 133, at [30]ff, where a Tribunal failed to appreciate that an early statement by an applicant was expressly not the whole of their case for protection.
The applicant’s point was that the Tribunal had made a jurisdictional error by overlooking important evidence, being the evidence that the Biodata interview form required the applicant to give a response of only one sentence. It is true that the Tribunal did not note in paragraph 7 of its reasons for decision that the applicant had been required to give a one sentence answer. However, the Tribunal itself noted in paragraph 7 of its reasons for decision the one sentence wording that the applicant could have used in answer to Question 21, namely, that he “feared being imprisoned and killed by the Iranian authorities including [Mr X] and Ettelaat [the Iranian intelligence agency]”.
The applicant focussed in submissions on the requirement for the applicant to be brief in giving a one sentence answer to the question. However, the alternative formulation provided by the Tribunal was just as brief as the applicant’s own wording. The applicant said that the Tribunal’s formulation was what a person knowledgeable in refugee law might have said. However, it was also what a person who truly feared being killed or imprisoned might have said. Subject to the discussion below, the Tribunal, as the trier of fact, was entitled to make its own assessment of what the applicant’s answer signified.
The applicant also focussed on the Tribunal’s use of the word “glib”. The Google dictionary defines “glib” as meaning “fluent but insincere or shallow”. I consider that the Tribunal did not express itself very well with the use of the word “glib”. Reading the Tribunal’s reasons fairly and as a whole, I consider that the Tribunal meant “nonchalant”, which the Google dictionary defines as “feeling or appearing casually calm and relaxed; not displaying anxiety, interest, or enthusiasm.” However, I do not consider that this slight misuse of words amounts, of itself, to a jurisdictional error.
The Minister submitted that the Tribunal was well aware that the Biodata interview form required a one sentence answer, as demonstrated by the Tribunal’s quotation of the applicant’s adviser’s submission at page 20 of the Tribunal’s reasons for decision (CB318) that:
We also draw attention to the fact that the form specifies that only one sentence [is] to be used.
The applicant argued that cutting and pasting a submission, as the Tribunal did in this case, did not mean that the Tribunal had actually considered it. For that argument, the applicant relied on MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; (2015) 328 ALR 433; (2015) 67 AAR 159; [2015] FCAFC 133. In that case, the decision of the Tribunal had been set aside. On remittal, the Tribunal as reconstituted made some findings that were word for word the same as the findings that the original decision-maker had made, and some findings that were altered only by a word or two here and there from the findings of the original decision-maker. The Full Court concluded that the Tribunal as reconstituted had not brought an independent mind to the determination of the matter.
MZZZW is very different to the present case. In the present case, the Tribunal did not copy and paste the words of the Tribunal as previously constituted. It copied and pasted the words of the applicant and his advisers. This was not a case where the Tribunal could be said to have not brought an independent mind to bear because it had adopted the reasoning of the Tribunal as previously constituted. That is primarily because the Tribunal in the present case had not been previously constituted.
If the Tribunal copies and pastes evidence and submissions, it might be criticised for not considering every detail of them. If the Tribunal instead summarises the evidence and submissions, it might be criticised for leaving out a detail that is later alleged to be critical. Whether either criticism is justified depends on a careful consideration of the particular case.
The Minister relied on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184, where the Full Court of the Federal Court said:
[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Minister submitted that ground 1 could not succeed because:
(a)First, the evidence was mentioned elsewhere in the reasons and there is therefore no basis to infer that it was not considered by the Tribunal; and
(b)Second, the evidence not being referred to at [7] can be understood as reflecting the Tribunal’s assessment of that evidence as not being sufficiently material to warrant a mention.
The Tribunal definitely mentioned in its reasons for decision that the Biodata form required a one sentence answer. That is because the Tribunal quoted the applicant’s submission to that effect in Attachment 2 to its reasons. While Attachment 2 was an attachment, and not in the main body of the reasons, it was definitely part of them. Attachment 2 is headed “Evidence and Claims”. It is the section of the reasons that usually is in the main body of the reasons, after an introduction and a statement of the law, and before the findings. Also, the paragraph numbering in Attachment 2 runs on from the paragraph numbering in the main body of the reasons and in Attachment 1. Moreover, Attachment 2, as well as containing extensive quotations, contains the Tribunal’s own narrative of the hearing and subsequent correspondence.
However, the applicant argued that the court should infer that the Tribunal did not consider the submission that:
We also draw attention to the fact that the form specifies that only one sentence [is] to be used.
or the instruction in the Biodata form itself that the answer should be only one sentence (CB3), because the Tribunal cut and pasted the submission, and did not mention the instruction in the form.
I do not consider that it would be appropriate to draw that inference.
Firstly, it was open to the Tribunal in the present case to cut and paste the applicant’s evidence and submissions. This case differs fundamentally from MZZZW, where the cutting and pasting was of a previous Tribunal’s reasoning. There was nothing inherently objectionable in the Tribunal cutting and pasting the applicant’s evidence and submissions.
Secondly, the quotation of the relevant sentence tends to suggest that the Tribunal was aware of it.
Thirdly, the Tribunal, as a body that does myriad refugee cases, could be expected to know what the Biodata form requires.
Fourthly, the submission containing the sentence quoted above was sent to the Tribunal in response to the Tribunal’s invitation to comment on the applicant’s answers to questions 20 and 21 in the Biodata form. It could be expected that the Tribunal, having asked for a comment, would have read it.
Fifthly, confirmation that the Tribunal read the submission is in paragraph 7 of its reasons for decision, where the Tribunal said, “…the adviser has stated it [being the statement that ‘I want to live comfortably here, I want to have some peace’] is a very reasonable summary of his situation …”. The adviser made that submission in the same submission that contained the sentence, “We also draw attention to the fact that the form specifies that only one sentence [is] to be used …”, just one page later. The “very reasonable summary” was as follows:
Accordingly, when asked to give one sentence why he was seeking Australia’s protection, he has summed up all his concerns by saying, ‘I want to live. I want to have peace.’ We submit this is a very reasonable summary of the situation and is in no way inconsistent with [the applicant’s] claims as to why he fears returning to Iran.
Sixthly, it is not plausible that the Tribunal could have read that paragraph, and taken from it the submission that the applicant’s response was “very reasonable”, but not picked up that the same paragraph also said that the applicant was required to give a one sentence answer. It is also not plausible that the Tribunal would have read the paragraph set out in the previous paragraph, but not read the previous page of the adviser’s submission.
Seventhly, as the Full Court of the Federal Court said in WAEE, the Tribunal is not obliged to refer to every piece of evidence. The Tribunal only needs to refer to the evidence that mattered. In the present case, the requirement to give a one sentence answer did not matter, because the applicant could easily have expressed the essence of his case in one sentence.
I conclude that the Tribunal did not overlook that the applicant was required to give a one sentence answer. The Tribunal did not mention in its reasons for decision that the applicant had to give a one sentence answer because it was immaterial. As the Tribunal itself noted, the applicant could easily have said in one sentence that he “feared being imprisoned and killed by the Iranian authorities including [Mr X] and Ettelaat” if that was what he had actually felt.
Ground 1 is not made out.
GROUND 2
The second ground of review in the application filed on 23 March 2018 and amended on 27 June 2022 is:
The second respondent failed to under[stand] correctly, or failed to respond to, the case that the applicant made in relation to the interpretation errors at the entry interview. The applicant said that the Farsi language words uttered were unclear as to whether the applicant had said “three of them” or “three others”. The second respondent relied on the English language translation recorded on the interview record to the effect of the latter. However, the applicant never challenged that the English language words uttered at the entry interview were as recorded and identified by the Tribunal. His challenge was that the Farsi language words uttered were, or might have been, incorrectly interpreted. The second respondent’s response indicates it did not understand this case.
In his amended written submissions filed on 27 June 2022, the applicant said in relation to this ground:
11.At Reasons [9], the Tribunal fails to understand, or to respond to, the applicant’s (actual) case about the interpretation errors at the entry interview,1 regarding the number of bodyguards present at the kitchen.
12.The applicant’s case was that, during the entry interview, words uttered in Farsi had been wrongly translated into English. It was not his case that words uttered in English had been wrongly recorded on the interview record (at CB 35).
13.The Tribunal relied on the “written record of interview” (CB 35) as a resolution of this issue. This written record of interview noted that the English words were uttered that there were three bodyguards (the applicant’s evidence at the Tribunal hearing was that there were only two bodyguards). The Tribunal thought that this was a serious problem with the applicant’s account, suggesting he was not recounting lived experience.
14.This reveals a misunderstanding of the case. He was not saying that utterances in English were unclear (as between “three others”’ or “three of them”), but that utterances in Farsi were unclear as to that effect (with a subsequent rendering into possible English translations of what was heard by the person interpreting the audio). If this were understood by the Tribunal, it would have appreciated that the written record of the entry interview was irrelevant. That document recorded only the utterances in English.
:Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [27].
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [27] relevantly reaffirms the principle that a failure to understand the case put by an applicant may constitute jurisdictional error.
Ground 2 concerns paragraph 9 of the Tribunal’s reasons for decision, where the Tribunal said:
The Tribunal finds the applicant's evidence has continued to change in relation to how many escorts there were and how events unfolded. The adviser has stated she has listened to the entry interview and that the interpreting was neither precise nor accurate and that the interpreter did not interpret exactly what the applicant had said and that at no stage did the applicant state he was kicked. She has also stated it is not completely clear that the applicant said that three people accompanied [Mr X] and that there is sufficient doubt about the words used to justify giving the applicant the benefit of the doubt in regards to whether he said [Mr X] was accompanied by three people, or three people came, including [Mr X]. In support of this submission, the adviser has relied upon a statutory declaration from [Ms Z] who states she is a migration agent with the same firm as the adviser and that she is NAATI 2 accredited in the Persian language. It is a cursory translation that states the applicant never said he was kicked and that the quality of the recording was extremely poor and it was unclear whether the speaker said '3 others' or '3 of them'. The Tribunal has some difficulty relying upon this cursory translation in preference to the written record of interview given its brevity and that it is not in a question/answer format. It may have also been more professional to outsource that work. Even if it accepts the applicant never said he was kicked, the Tribunal cannot draw the conclusion from [Ms Z’s] statutory declaration that the applicant did not say that [Mr X] was accompanied by three people because [Ms Z] has stated the recording is unclear so the only conclusion the Tribunal can draw is that [Ms Z] does not know what the applicant said. Given this, the Tribunal prefers the written record of interview because it is a contemporaneous record of that interview.
The Tribunal preferred the record of the applicant’s entry interview, where it was relevantly recorded that (CB35):
… [Mr X] and three other men (escorts) came to the kitchen and wanted to take some cooking oil …
It was common ground at the hearing before this court that the written record of interview was completed by the interviewer following the interview, and was derived from the English version of the interview as it was interpreted orally on the day of the interview.
The difficulty with this ground is that Ms Z’s evidence on the point of whether there were three others, or three of them, is that the recording was poor. The record of the entry interview was not based on an audio recording. It was based on the live interpretation on the day of the entry interview. Therefore, whether the recording was poor or not was beside the point.
This is made clear from paragraph 4 of Ms Z’s statutory declaration (CB247), where she said:
How many people did the Persian speaker say had entered the kitchen? The quality of the recording is extremely poor. The Persian speaker says a word immediately prior to the word 3. It is unclear from the recording whether the speaker says "3 others" or "3 of them"
It is true that Ms Z also said in paragraph 5 of her statutory declaration that:
Overall the quality of the interpreting is poor and imprecise. The interpreter does not interpret exactly what the Persian speaker says. The interpreter tends to summarise the gist of what he has said.
However, that is a general statement that does not deal particularly with the issue of “three others” or “three of them”. Paragraph 5 of Ms Z’s statutory declaration is not helpful in determining the present issue.
The applicant stated at the commencement of his submission dated 7 June 2013 to the Tribunal that the audio recording of the record of interview was very poor and the interpreting was neither precise nor accurate. The applicant provided an evidentiary basis for that submission with the statutory declaration of Ms Z.
The Tribunal clearly grappled with that submission in paragraph 9 of its reasons for decision. The Tribunal said that, even if it accepted that the applicant did not say that he was kicked, the balance of s Z’s evidence did not persuade it that the applicant said “three of them” rather than “three others”, because:
(a)Ms Z was relying on a recording that she herself said was poor;
(b)she could not say whether the applicant said “three of them” or “three others”;
(c)her evidence was not a formal transcript of the interview in a question and answer format;
(d)her evidence was very brief; and
(e)she was employed by the applicant’s adviser, so was not independent.
In these circumstances, it was open to the Tribunal to consider that the contemporaneous record of the entry interview, which was based on a live interpretation rather than a recording, was accurate in relation to whether the applicant said “three of them” or “three others”. Ms Z’s evidence could not advance that enquiry, because she simply did not know.
Ground 2 is not made out.
GROUND 3
The third ground of review in the application filed on 23 March 2018 and amended on 27 June 2022 is:
The second respondent failed to consider the applicant’s evidence that the reason he [did not] challenge his “boss’s boss” was that he had previously had his pay docked for similar incidents.
In his amended written submissions filed on 27 June 2022, the applicant said in relation to this ground:
15.At Reasons [10], the Tribunal expresses difficulty in understanding why the appellant would question his “boss’s boss”. But this did not consider evidence that after a similar incident, the applicant had his pay docked, and he did not want that to occur again (CB 107 [20]). This is a failure to consider important evidence.2
:SZRKT (2013) 212 FCR 99.
This ground concerns paragraph 10 of the Tribunal’s reasons for decision. That paragraph is as follows:
The Tribunal also formed the impression that at hearing, the applicant had not turned his mind to what had actually happened in the kitchen and that when asked, he was not recalling an event which had in fact occurred but was making up evidence as he went along. Whilst the adviser has stated the applicant was accountable for the goods taken and that is why he questioned [Mr X], the Tribunal has trouble understanding why he would question the actions of his manager's manager who could presumably sack the applicant and who would not need to attack him with any implement especially when he was accompanied by escorts. In addition, the Tribunal remains unconvinced that the applicant could escape as easily as claimed after having pushed [Mr X] because he was effectively surrounded by [Mr X] and his escorts. Whilst the applicant has subsequently drawn a diagram that suggests he ran out a side door and jumped over a wall, the Tribunal does not accept he could escape given the number of escorts in the kitchen and the supposed outrage of [Mr X] and the applicant's own statement that insulting an Islamic leader in any way would be seriously punished.
Similarly to ground 1, the evidence that the applicant said the Tribunal failed to consider was actually referred to by the Tribunal in Attachment 2, at CB274 at [33], and at CB275 at [42].
The reference at paragraph 33 of the Tribunal’s reasons for decision was a quotation from the applicant’s application, where he said:
In the recent months before I left Iran, I was told some oil was missing from the kitchen and an amount of 20,000 Toman was deducted from my salary to cover the missing oil.
The reference at paragraph 42 of the Tribunal’s reasons for decision was the Tribunal’s summary of the applicant’s oral evidence in the hearing before the Tribunal. The Tribunal recorded that:
He then stated there was another time when they had taken the oil and had deducted money from his pay as he was liable for the oil.
That was the Tribunal’s own words. It is hard to believe that the Tribunal did not consider a point that it expressed in its own words.
That difficulty is exacerbated by the fact that the Tribunal said, in dealing with this point, in paragraph 10 of its reasons for decision, that:
… the adviser has stated that the applicant was accountable for goods taken and that is why he questioned [Mr X] …
That appears to be a reference to the following paragraph from page 4 of the adviser’s submission dated 7 June 2013 (CB240):
We submit that [the applicant] has already provided one extremely plausible explanation for his objection to these men taking goods from his kitchen. It had happened once before and money was deducted from his wages to pay for the goods they took. …
There does not appear to be anything else that the adviser submitted that could be interpreted as the adviser stating that “the applicant was accountable for goods taken”. It follows that the Tribunal dealt expressly with the claim that he had previously had his pay docked, although in different words, namely, “he was held accountable”.
Ground 3 is not made out.
CONCLUSION
As none of the applicant’s grounds has been made out, the application will be dismissed with costs.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.
Associate:
Dated: 3 August 2022
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