BMC16 v Minister for Immigration
[2018] FCCA 3318
•21 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMC16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3318 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal decision – grounds of review unparticularised – whether decision affected by error of law – whether applicant denied procedural fairness – further ground raised at hearing regarding adequacy of interpretive services – applicable principles where issues of mis-translation or non-translation is raised – no evidence to support complaint – grounds not made out – no jurisdictional error estabished. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 424A, 424AA, 425, 425A, 476 Migration Regulations 1994 (Cth), Sch 2 subclass 866 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 |
| Applicant: | BMC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1265 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 12 November 2018 |
| Date of Last Submission: | 12 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Ms Allan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 16 June 2016 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1265 of 2016
| BMC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 16 June 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 May 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
The applicant, an Iranian citizen aged 31 years, first arrived in Australia in March 2013. Following his attendance at an entry interview on 24 March 2013, he lodged an application for a Protection visa on 1 July 2013. Beyond indicating that he had been born in Tehran, the application contained little other information. However, in the course of his visa application, the applicant lodged three statutory declarations.
The first declaration, made on 6 June 2013, declared that his parents and sister continued to reside in Karaj, Iran. He feared returning to Iran by reason of experiences which he claimed to have had during the first two months of his period of military service. He declared that in April 2010 he was deployed by the military to provide the services of driver for a police commander at a police station in the south of Tehran. The declaration identified the police commander by name and stated that the applicant had been ordered to continue providing his service as driver despite his period of military service being performed. The applicant claimed that the police commander threatened him including in relation to the disclosure of confidential information concerning matters which he had witnessed while working as a driver. The applicant also claimed he would be prosecuted and persecuted on return to Iran because he had left the police force without authorisation. He feared that the commander would arrest and torture him.
On 14 July 2014, the applicant attended an interview with a delegate of the Minister.
On 12 August 2014, the delegate made a decision to refuse the applicant a Protection visa. In doing so the delegate accepted some of the applicant’s claims concerning his military service and his encounters with the police commander but did not accept the applicant would suffer a real chance of serious harm or a real risk of significant harm whether at the hands of the police commander or any other Iranian authorities.
On 20 August 2014, the applicant lodged an application with the then Refugee Review Tribunal for a review of the delegate’s decision. In making that application, the applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant was represented by his migration lawyers throughout the course of the Tribunal proceedings.
On 14 February 2016, the applicant made a further statutory declaration which expanded in detail upon his claims for protection. The further declaration also addressed two issues which had been raised by the delegate: (1) the applicant corrected some details as to the transmission of his passport application to a police station; (2) the applicant maintained that his passport application could be lodged without the necessity for the applicant to be present in person or that it was a requirement of the passport application to provide his fingerprints.
A case note of the Tribunal records that on 15 February 2016, the applicant’s migration representative contacted the Tribunal in relation to the arrangements made for the provision of an interpreter. The representative confirmed that an interpreter who was bilingual in English and Persian would be acceptable.
On 18 February 2018, the applicant’s migration lawyers lodged detailed submissions in support of the application for a visa together with certified translations of a series of documents.
On 19 February 2016, the Tribunal conducted the hearing. The Hearing Record indicates that the hearing commenced at 9:35am and concluded at 1:26pm. It also indicates that a Persian interpreter with NAATI Level 3 accreditation was present for the hearing from 9:09am until 12:30pm and that a further Persian interpreter with NAATI Level 2 accreditation was present from 12:45pm until 1:26pm. The record further indicates that the applicant was allowed further time to supply additional information. In the event, the applicant sought and was granted additional time within which to provide further documentation.
Following the Tribunal hearing, the applicant’s migration lawyers provided a series of documents including various translated documents and the applicant’s third statutory declaration which was made on 18 March 2016.
By his third statutory declaration, it was declared that the applicant wished to take the opportunity to explain some aspects of his claims in further detail. For the most part, the applicant’s further declaration addressed the nature of his relationship and dealings with the police commander and why he feared that he was at risk of harm from that commander. The other issue addressed by the statutory declaration concerned the period of the applicant’s military service.
Tribunal decision
On 26 May 2016, the Tribunal affirmed the delegate’s decision not to grant the application for a Protection visa. The Tribunal furnished a statement of decision and reasons (Reasons).
The Reasons set out the nature of the application for review, the matters relevant to the refugee criterion and the complimentary protection criterion under ss 36(2)(a) and 36(2)(aa) respectively. The Reasons also set out the requirement to take into account certain policy guidelines and the legal principles relevant to an administrative decision maker’s assessment of credibility: Reasons, [1]-[25]. Having set out the background to the applicant’s claims, the Tribunal accepted it was possible that a person conscripted for service with the military could be required to work for the police: Reasons, [32]. The Tribunal examined in detail the applicant’s evidence concerning the provision of his service to the police commander and noted inconsistencies in that evidence: Reasons, [29]-[93].
Concerning the question whether the applicant was at risk of harm, the Tribunal recorded:
The Tribunal asked the applicant whether if it rejected the applicant’s claims, he still thought he was at risk of harm on return. The applicant said that he had two problems – [the police commander] and the fact that he was employed by the police. He conceded that if neither of these claims is true, he would not be at risk on return. However, he said, his claims were true.
In its Reasons at [94] (1)-(16), the Tribunal set out in detail its findings respecting a number of implausible aspects of, and inconsistencies in, the applicant’s evidence and why it concluded that the applicant was not a credible witness.
The Tribunal rejected the applicant’s claims for protection. It found that the applicant had worked as a driver for a police officer for some 18 months but that he had done so because this was the normal period of military service that citizens were ordinarily required to complete. The Tribunal found that the applicant had fabricated the claim that he had to serve in the military for 17 months and his claim that his commanding officer had made him a police officer against his will: Reasons [95]-[96].
The Tribunal found that the applicant had never been threatened or made to join the police force or that anyone from the police force had had interactions with him after his discharge from service: Reasons, [97].
The Tribunal further found that neither the applicant’s family nor his friends had been questioned, harassed or subjected to harm in any way by the authorities. It concluded that the applicant never had been, and would not in the future be, of any interest to the authorities: Reasons, [98]-[99].
Based upon the applicants own evidence, the Tribunal found that the applicant had no interest in politics and would not engage in political activities on return to Iran: Reasons, [100]. Moreover, although the applicant made no express claims to fear persecution on the basis of his religion, the Tribunal found that the applicant remained a Shia Muslim and that Iranian authorities would have no reason to impute him with any other religious views: Reasons, [101].
The Tribunal did accept that the applicant would be known to be, or strongly suspected of being, a failed asylum seeker upon return to Iran. However, it found that the authorities would only question him and/or have his travel documents confiscated upon his return to Iran. It concluded that neither of these actions would constitute serious harm and observed that the applicant had never been of adverse interest to the authorities: Reasons, [102]-[105].
Having regard to available country information and upon consideration of the applicant’s claims, individually and cumulatively, the Tribunal found that the applicant did not have a well-founded fear of persecution: Reasons, [106]-[107]. The Tribunal further found that it did not accept there was a real risk that the applicant would suffer significant harm on return to Iran and specifically found that the questioning of the applicant or the confiscation of his travel documents did not amount to significant harm. Reasons, [110]-[111].
Accordingly, the Tribunal concluded that the applicant did not satisfy the criterion under ss 36(2)(a) or 36(2)(aa) for the grant of a Protection visa.
Procedural history
On 16 June 2016, the applicant lodged an application for judicial review of the Tribunal’s decision, together with an affidavit to which he exhibited a copy of the Reasons but which adduced no further evidence in support of his application.
By a Response filed on 11 July 2016, the Minister opposed the making of the orders sought in the application on the grounds that the Tribunal’s decision was not affected by jurisdictional error.
Despite orders being made, by consent, on 23 November 2016 permitting the applicant the opportunity to file and serve any amended application, further evidence and submissions, he has not done so.
In those circumstances, the submissions filed on behalf of the Minister were responsive to the application.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).[1]
[1]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [75]-[76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2]; see also Minister for Immigration and Citizenship v SZMDS.[3]
[2] (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ).
[3] (2010) 240 CLR 611, [40] (Gummow A-CJ, Kiefel J), [102] (Crennan and Bell J).
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat.[4]
[4](2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for a Protection visa are set out in s 36 of the Act and Subclass 866 of Sch 2 to the Migration Regulations 1994. Subclass 866 prescribes the primary and secondary criteria that must be satisfied in relation to a Protection visa application, at the time of the application and at the time of decision respectively.
The applicant advanced two grounds of review and in the course of submissions before me raised a further matter of which no notice had been given. As the applicant was self-represented, I have re-examined the Tribunal’s decision and the materials comprised in the court book.
Ground 1 – error of law
The applicant complained that the decision was affected by an error of law. No further detail was given.
As the applicant has not taken the opportunity to file a supplementary Court Book or any submissions, the Minister and in turn the Court are left to discern the existence of jurisdictional error from a ground which is devoid of particulars. In WZAVW v Minister for Immigration and Border Protection,[5] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed.
See also MZARG v Minister for Immigration and Border Protection.[6]
[6] [2018] FCA, [25] (McKerracher J).
Although the application was open to dismissal on the basis that the grounds of review are devoid of particulars, I have considered for myself the reasons of the Tribunal and the materials before it.
In my opinion, there is no basis for the assertion that the Tribunal’s decision was affected by an error of law. Ground 1 is rejected.
Ground 2 – procedural fairness
The applicant also claimed that he had been denied procedural fairness.
Again, the application was devoid of any particulars and it was only in the course of the hearing before me that any issue of substance was identified. I have treated that issue separately as a notional Ground 3.
The Tribunal was obliged to afford the applicant procedural fairness. This meant that the applicant was entitled to a fair process and hearing.
In Minister for Immigration and Border Protection v SZSSJ,[7] the Full Court of the High Court held that:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
[7](2016) 259 CLR 180, [83] (Applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32], (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59]).
It may be accepted that it is necessary to identify, at some level of specificity, the nature of the inquiry to be conducted and the issues that are to be considered. For example, in SZMUF v Minister for Immigration and Citizenship,[8] Flick J stated:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”[9]
[8][2009] FCA 182, [22]. See also ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, [27] (Bromberg J) and cases cited.
[9]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
The scope of the obligation is not at large. The decision maker must give notice of issues which are ‘live’, including the assumptions that may underpin a decision: see BMF16 v Minister for Immigration and Border Protection.[10] Generally, where the obligation is engaged, procedural fairness will require that the appellant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant: HFM045 v The Republic of Nauru.[11]
[10] [2016] FCA 1530, [162]-[163].
[11] (2017) 350 ALR 34, [51].
As noted above, in SZSSJ the Court held[12] that ordinarily there was no requirement to notify a person of information which is in the possession of, or accessible to, the decision maker which he or she has decided not to take into account at all in the conduct of the inquiry. Nor is the Tribunal required to give a person a running commentary upon their prospects of success, so that there is, in effect, a forewarning of all possible reasons why a decision may be made to affirm a decision that is the subject of a merits review.
[12] (2016) 259 CLR 180, [83].
In Snedden v Minister for Justice for the Commonwealth of Australia,[13] Middleton and Wigney JJ observed that:
The rules of procedural fairness do not have an immutably fixed content. . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts. . .
I apply those principles in the present application.
[13] (2014) 230 FCR 82, [177].
In the proper discharge of its obligations, the Tribunal sent an invitation to the applicant’s migration lawyer for the applicant to attend the hearing to give evidence and make submissions in relation to the issues arising upon the decision under review: ss 425-425A. The applicant so attended the hearing and was assisted throughout the hearing both by his legal representative and two Persian interpreters. The applicant was on notice that the credibility of his claims was a determinative issue on review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[14] Indeed the applicant was plainly on notice as evidenced by: (a) his provision of a copy of the delegate’s decision at the time he lodged the application for merits review; (b) the content of the detailed submission lodged by his migration lawyer; (c) the topics upon which the applicant was questioned in the course of the Tribunal hearing. I am satisfied that no basis exists for a suggestion that the Tribunal failed to comply with s 424A. Nor is there any suggestion that the course of the proceeding before the Tribunal was such that the applicant was required to be put on notice of any issue which would have been a reason for affirming the decision under review: ss 424A, 424AA.
[14] (2006) 228 CLR 152, [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
Ground 2 is rejected.
Ground 3 – interpreter services
In the course of the hearing before me, the applicant complained that the issues raised before the Tribunal upon merits review were too complicated to be explained within a two-hour hearing and asserted that the interpreter had left halfway through the hearing. The applicant further suggested that the substitute interpreter who had provided interpretive services to the applicant by telephone was unsatisfactory. Finally, the applicant stated that it was by reason of the difficulties with the interpretive services that had been provided that he had tried to send further information to the Tribunal after the hearing.
On behalf of the Minister it was objected, quite properly, that the applicant had given no notice or any indication of a complaint as to the quality of the interpretative services that have been provided.
SZRMQ v Minister for Immigration and Border Protection[15] and Perera v Minister for Immigration and Multicultural Affairs[16]are seminal authorities on the principles applicable and approach to be taken in cases where a complaint is made of mistranslation or non-translation of information or evidence.
[15](2013) ALD 436 (Allsop CJ and Robertson J); (SL refused [2014] HCATrans 110).
[16](1999) 92 FCR 6 (Kenny J); see also Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, [86]-[87] (Griffiths and Moshinksy JJ).
The following principles may be distilled from SZRMQ: (1) when a tribunal concludes that it must conduct a hearing, an applicant is entitled to appear at a hearing to give evidence and make arguments in relation to the issues arising upon the decision under review;[17] (2) such an entitlement requires that the applicant is afforded a real and meaningful opportunity to do so;[18] (3) the obligation to afford procedural fairness will generally import a requirement to exercise the power in a way that is apparently fair, including in cases where it is necessary for the applicant to have the assistance of an interpreter;[19] (2) whether those requirements are met may not be capable of precise delineation;[20] (3) critical to an evaluation is whether the decision-making process and hearing was fair and that will be a fact sensitive question;[21] (4) when it can be shown that real and material errors of substance occurred in interpreting or translating a person’s version of events, it will be difficult to conclude that a fair hearing was conducted;[22] (5) the circumstances of a particular case may support a conclusion that the inadequacies in the quality of interpreting or translation was such that there was no hearing at all;[23] (6) the degree of departure from an acceptable standard of interpreting or translation must relate to a matter of significance for the claim or decision;[24] (7) where relief is sought by reason of material[25] unfairness flowing from the quality of interpreting or translation, this will frequently require that evidence be adduced from which the existence and materiality of the error can be demonstrated;[26] (8) if the mistranslation or non-translation could have affected the outcome, this may be sufficient to establish a denial of procedural fairness;[27] (9) it will often be important to consider whether the erroneous interpretation or translation complained of was frequent and continuous or merely intermittent;[28] (10) questions may arise whether the decision-maker would have come to the same conclusion irrespective of demonstrable error in the process of interpreting or translation in which case, questions of utility may intrude.[29] I apply those considerations in the present case.
[17] Section 425(1).
[18] (2013) ALD 436, [14], [44]-[45].
[19] (2013) ALD 436, [8].
[20] (2013) ALD 436, [6]-[7], [9], [37].
[21] (2013) ALD 436, [8], [10], [17], [20], [65], [67], [73].
[22] (2013) ALD 436, [10]-[11]
[23] (2013) ALD 436, [11]
[24] (2013) ALD 436, [14], [25]
[25] (2013) ALD 436, [66]
[26] (2013) ALD 436, [18], [27]
[27] (2013) ALD 436, [69]
[28] (2013) ALD 436, [25], [70]-[73]
[29] (2013) ALD 436, [18]
A number of observations may be made respecting the applicant’s possible Ground 3. First, the hearing was not of 2 hours duration but of some 4 hours 15 minutes. Secondly, a Persian interpreter had been requested by the applicant’s lawyer and had been provided. Thirdly, the first Persian interpreter had been present for the first 3 hours 15 minutes, while the second interpreter had been present (albeit by telephone) for the remaining 45 minutes. Fourthly, it does not appear that any difficulty with respect to the quality of the interpretive services was raised by the applicant or his lawyer in the course of the hearing. Nor does it appear to have been the reason why the applicant was afforded an opportunity to provide further documentation to the Tribunal. To the contrary, the applicant’s lawyers sought, and were granted, an extended time in which to supply further translations of documents and they did so. Fifthly, the applicant’s post hearing statutory declaration contains no suggestion that there had been any difficulty with the quality of the interpretive services. Nor was there any communication from the applicant’s lawyers to indicate that the applicant had made any contemporaneous complaint in relation to the quality of the interpretive services that had been provided. Sixthly, although the applicant appeared before me with the assistance of an interpreter, he was for the most part able to answer questions without the necessity for intervention from that interpreter. On several occasions he answered the question (or indicated his assent to it) before the interpreter had commenced the process of interpreting the question. From that point, the interpreter adopted a progressively more passive role in the course of the hearing. For completeness, I should record that the applicant was encouraged to seek clarification of any issue about which he required further assistance. Finally, the absence of any evidence in this proceeding precludes an examination of whether there was any want of procedural fairness by reason of the mistranslation or non-translation of any specific information or evidence in the course of the Tribunal’s processes or in its hearing.
Ground 3 is rejected.
Conclusion
No ground being established for the grant of relief, it follows that the application for judicial review must be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 November 2018
[5] [2016] FCA 760, [35], (Citations omitted).
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Natural Justice
0
18
3