BNB17 v Minister for Immigration
[2019] FCCA 1314
•24 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNB17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1314 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa –Part 7AA – interpreter error – corroborating evidence – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: CPN16 v Minister for Home Affairs [2018] FCA 872 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; ALJR 618; 297 ALR 225 SZRMQ v Minister for Immigration ad Border Protection [2013] FCAFC; 219 FCR 212; 139 ALD 436 |
| Applicant: | BNB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 703 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 15 October 2018 |
| Date of Last Submission: | 26 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 May 2019 |
REPRESENTATION
| Counsel for the applicant: | Ms G. A. Costello |
| Solicitors for the applicant: | Lander & Rogers |
| Counsel for the respondents: | Mr N. Wood |
| Solicitors for the respondents: | DLA Piper |
ORDERS
The applicant’s application filed on 7 April 2017 and amended on
24 September 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 703 of 2017
| BNB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the
Immigration Assessment Authority (“the IAA”) under section 473CC(2) of the Migration Act 1958 (Cth) (“the Act”) to affirm a ‘fast track reviewable decision’ being a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) under section 65 of the Act to refuse to grant the applicant a protection visa (“the visa”).
In essence, the applicant raises the following concerns about the IAA’s decision:
a)the IAA failed to invite the applicant to an interview under section 473DC of the Act or take such other action as was necessary to cure the defects arising from interpreter errors in the interview before the delegate, and this failure was legally unreasonable; and
b)
the IAA failed to consider corroborating evidence to support his claim to having been sexually assaulted, namely the applicant’s physical scars and details in his statutory declaration of
27 January 2017, and therefore failed to carry out its statutory task.
These errors, it is said on behalf of the applicant, resulted in the IAA’s decision being affected by jurisdictional error.
The applicant’s claims
The applicant is a Sri Lankan national. On 5 August 2016, he applied for a protection visa.[1] In support of that application, as noted by the IAA in its decision record, the applicant claimed:
[1] Court book at page 103 to 143.
His father was a member of the Liberation Tigers of Tamil Eelam (LTTE) from 1980 to 1990.
In 1998, his brother was arrested on suspicion of being a member of the LTTE. He was held for ten months, beaten and tortured. He did not have any links to the LTTE.
The applicant was detained by the police in Colombo on five occasions. The first time, in 2007, he was tortured by the Criminal Investigation Division (CID). The last time was in 2009 when he was kept for about five hours.
He returned home to Karaveddy in 2010 after the war had ended. He felt constantly threatened and harassed. He was required to report to the local police station and answer questions. He was also required to drive members of the CID in his vehicle. The harassment interfered with his ability to earn a living.
He became anxious about this situation and also believed the Tamil community was growing suspicious of him because he spoke some Sinhalese.
After he left Sri Lanka his mother told him that people came to her home asking about him. The last time was in May 2016.
He fears he would be arrested like his brother if he returns to Sri Lanka. He left the country when he was meant to be reporting to the authorities.[2]
[2] Court book page 315 at paragraph [7].
These claims were articulated by the applicant in the following documents:
a)the applicant’s Irregular Maritime Arrival Entry Interview form;[3]
b)the applicant’s statutory declaration dated 1 October 2013;[4] and
c)the applicant’s statutory declaration dated 5 August 2016.[5]
[3] Court book pages 2 to 17, and in particular, court book page 12.
[4] Court book pages 70 to 73.
[5] Court book pages 148 to 151.
At the applicant’s application for a Safe Haven Enterprise visa interview with the delegate held on 13 January 2017 (“the SHEV interview”), the applicant raised a further claim for the first time, namely that he had been sexually assaulted when detained by the Criminal Investigation Department in Sri Lanka (“the CID”) in 2009. He also claimed that he had been beaten by the police when he was required to report to the local police station after he returned to his home area from Colombo.
The applicant’s representative also filed post hearing submissions on his behalf on 27 January 2017[6] together with a further statutory declaration dated 27 January 2017.[7] The applicant provided further detail in the January 2017 statutory declaration regarding the sexual assault claim. Relevantly, the applicant said in this statutory declaration:
…the sexual assault was part of the torture that I was subjected to when I was detained and interrogated by the CID in March or April of 2009. The CID stepped on my feet with their boots, and melted plastic packing and put it on my feet so that it burned me. I was burned on the arm with a hot rod. My hands were tied behind me, and one of the CID officers hit me a rifle, breaking my arm. I have visible scars on my arm and feet from this treatment, and it is also visible where the fracture did not heal well. … Later on, I believe after a few days, I was sexually assaulted. My hands were tied behind me, the officers removed my pants. They kept a gun on me, pressed on my head or chest. They raped me. They also put their penises in my mount.
[6] Court book pages 209 to 234.
[7] Court book pages 235 to 236.
The applicant went on to explain the effect that this incident had on him mentally at paragraph 5 of his January 2017 statutory declaration. At paragraphs 6 and 7, he further explained why he had not raised this matter earlier.
Interpreter issues
The applicant was invited to and attended the SHEV interview before the delegate on 13 January 2017. The applicant was represented at that hearing by his migration agent. In addition, the applicant was assisted by an interpreter in the Tamil and English languages. In the post hearing submissions filed by the applicant’s representative, concerns were raised about the accuracy of the interpreting services.
The applicant’s representative stated that they had reviewed certain parts of the interview recording with the assistance of a Tamil interpreter and noted a number of inaccuracies.
In response to a question as to who he feared harm from in Sri Lanka, the applicant, according to his representative said “the forces of the government – army, CID, police” but this was interpreted at “Army, CID, police or other people”.[8]
[8] Court book page 210.
It was submitted that the applicant did not refer to ‘other people’ and that this was “an indication of inaccurate interpretation on even a short and straightforward response”.[9]
[9] Court book page 210.
In addition, a second example of the inadequate interpreting was said to be that in response to a question as to what the applicant meant by “many times they were beating you”, the interpreter interpreted his response as follows:
Their nature is… they have to keep us always intimidated, intimidating, and making fear, and that sort of the thing. In this condition, we may say anything about LTTE involvement. This is why time to time, not a particular authority, personnel, but different personnel, would involve this matter and ask questions.[10]
[10] Court book pages 210 to 211.
It was submitted on behalf of the applicant that in fact, his response to this question was to the effect of “they beat me because they want to find out, by inflicting pain, whether I am a member of the LTTE or supporting the LTTE”.[11]
[11] Court book pages 210 to 211.
The applicant’s representative also raised a further example of poor interpreting in relation to the applicant’s allegation about being sexually assaulted. In response to a question from the delegate as to what was the most recent time that the applicant had been harmed or mistreated in Sri Lanka the department’s interpreter indicated that the applicant had said:
On and off I was called by the authorities, if I go with them I will be harmed, hitting and beating and slapping, that sort of assault was taking place. They humiliated, like sexual harassment, folding my hand behind.[12]
[12] Court book page 211.
The delegate then asked for clarification with “what do you mean sexual harassment?”, to which, according to the department interpreter, the applicant responded:
Holding back … binding hand behind, and stripping off clothes, they would, ah, penetrate, with their … body part … or penis or something like that.[13]
[13]The applicant contends in his post hearing written submission that the initial reference to ‘sexual harassment’ was not accurate and should have been a reference to ‘sexual assault’. It was further submitted that in response to the delegate’s question, the applicant responded words to the effect of “they tied up my hands and came behind and had sexual dealings”.
In relation to the question of the quality of the interpreter, the delegate addressed the concerns raised by the applicant’s representative in his post hearing submissions by making the following comments:
I note that the interview was conducted with the assistance of an accredited Tamil interpreter. For the most part during the interview it appeared that all parties were able to communicate clearly.
I am satisfied that the applicant was able to understand the interpreter and that he provided detailed responses to questions asked of him. I have considered the concerns with interpreting as it relates to claims I have not found to be credible.[14]
[14] Court book page 244.
The delegate refused to grant the applicant a protection visa on
3 February 2017.[15]
[15] Court book page 242.
Proceedings before the IAA
The decision under review in this matter is a ‘fast track reviewable decision’ as defined in Part 7AA of the Act. In accordance with the requirements of section 473CA of the Act, the delegate’s decision was referred to the IAA for review.
The applicant was advised of the referral to the IAA by letter dated
6 February 2016. In that correspondence, the IAA advised the applicant of the information that it had been provided with and the limitations on its capacity to consider ‘new information’. It also attached a Practice Direction in which, among other things it dealt with the applicant’s rights to make submissions and present new information. At paragraph 20, the Practice Direction states:For the purposes of the review, you may provide a written submission on the following:
· why you disagree with the decision of the Department
· any claim or matter that you presented to the Department that was overlooked (emphasis added).[16]
[16] Court book pages 265 to 270.
The Practice Direction also dealt with the question of interviews and relevantly stated:
Interviews may be held in very limited circumstances in accordance with the provisions set out in the Migration Act. An interview may be held for us to obtain specific new information from you or another person. An interview may also be held to allow you to comment on new information that we have considered that may be adverse to your case. We will not conduct a full rehearing of the evidence or information that was before the Department.[17]
[17] Court book page 270.
The applicant’s representative filed a further submission on
28 February 2017.[18] The applicant’s submission, among other things reiterate concerns about the quality of the interpreter at the hearing before the delegate. Relevantly, it was submitted:
We refer to our concerns raised at Part 2.1 of our post-interview submission regarding issues with the interpreting at the protection visa interview. Despite claiming to have ‘considered’ [the interpreter] concerns, the delegate did not make further reference to way (sic) that the established problems with the interpreting may have affected the responses given by (the applicant), for example when proceeding to make findings that his evidence had been ‘vague and evasive’. In our submission, (the applicant) must be given the benefit of the doubt in considering the evidence given at his interview. Further, if the IAA holds any concerns with (the applicant’s) credibility, we request that he be afforded an in person interview by the IAA. Particularly in view of the interpreting issues, we submit that (the applicant’s) credibility cannot be adequately evaluated only from the recording of his interview and the written material. Assessment of his demeanour is critical to a finding on credibility, and such an assessment needs to be made in the context of an interview with clear and accurate interpreting. In our submission, if there are doubts as to the applicant’s credibility, it is not possible to make a decision reaching the state of satisfaction required by s 65 of the Migration Act, or providing the applicant with procedural fairness, without a further interview.[19]
[18] Court book pages 273 to 277.
[19] Court book page 275.
The IAA’s reasons
In its reasons for decision, the IAA identifies the information that it had before it. It confirmed that it was alive to the concerns raised by the applicant’s representative about the quality of the interpreting of the applicant’s interview before the delegate which may have affected the delegate’s assessment of the applicant’s credit.[20]
[20] Court book page 314 at paragraph [5].
The IAA considered the submission that if the Authority had any concerns about the applicant’s credibility, it was required to provide the applicant with a further interview. The IAA was not persuaded by this submission. The IAA after having regard to the particular nature of ‘fast track reviews’ under Part 7AA of the Act, concluded that it was not satisfied that “the circumstances of this case require [it] to invite the applicant to attend an interview (sic).”[21]
[21] Court book page 283 at paragraph [6].
The IAA set out the applicant’s claims at paragraphs 7 and 8.[22]
[22] Court book page 284.
It then considered the requirements of sections 5H and 5J of the Act at paragraphs 9 and 10.[23]
[23] Court book page 284.
The IAA dealt with the applicant’s recent claims that his father was in fact a member of the Liberation Tigers of Tamil Eelam (“the LTTE”) and that this was a factor in making him and his brother a target of the authorities.[24] Relevantly, the IAA noted a number of inconsistencies in the applicant’s claims in relation to his father and the timing of his making of those claims. In response to the suggestion by the applicant that his initial statement made in 2013 was “prepared in a rush”,[25] the IAA did not accept that this was an adequate explanation.
[24] Court book page 316 at paragraphs [12] to [13]; and page 317 at paragraphs [13] to [15].
[25] Court book page 316 at paragraph [13].
The applicant also sought to explain his failure to make reference to his father’s LTTE involvement in his 2013 statement by reference to difficulties with the interpreter he used at that time. The IAA noted:
While I accept problems in translation can occur and this may account for minor differences or discrepancies, it is not plausible that a qualified interpreter in the Tamil language would miss or misunderstand an entire claim and I do not accept that any deficiencies in the 2013 statement are attributable to this.[26]
[26] Court book pages 316 to 317 at paragraph [13].
The IAA then dealt with the applicant’s claims about his brother’s detention which the tribunal accepted. The IAA noted however, that the treatment which the applicant’s brother received was attributable to the general mass detentions and arrests of young Tamil males at the time, rather than any family association to the LTTE. [27]
[27] Court book page 317 at paragraph [16].
At paragraphs 17 to 27, the IAA considered the applicant’s various claims about the circumstances in which he was questioned and detained both in Colombo and after he moved to Karaveddy. The IAA found that the applicant’s claims in relation to the former “fluctuated over time”.[28]
[28] Court book page 317 at paragraph [17].
In relation to the alleged sexual assault which was said to have occurred in 2009, the IAA noted that this was raised for the first time in the hearing before the delegate. The tribunal considered the submissions made on the applicant’s behalf as to why he had not raised these matters earlier. To the extent that the applicant told the delegate that he had disclosed this incident when he arrived in Australia and was offered counselling but declined it, the IAA noted that there was no information presented, other than the applicant’s word which verified that claim.[29]
[29] Court book pages 317 to 318 at paragraph [17].
The IAA did not ultimately accept that there were incidents in either 2007 or 2009 in which the applicant was tortured and/or sexually assaulted.
In relation to the 2007 incident, the IAA found that the applicant’s “evidence was general and lacking in detail”.[30] Moreover, he first referred to this incident in his 2016 statement, with no mention being made in either his entry interview or his 2013 statement.
[30] Court book page 318 at paragraph [19].
In relation to the 2009 incident, in reaching this conclusion to this conclusion, the IAA had regard to:
…the lack of detail provided at interview, the inconsistencies in his evidence, two sworn statements neither of which mention the incident and my finding above that he has not been truthful in relation to all of his claims.[31]
[31] Court book page 319 at paragraph [20].
The IAA then considered:
a)the applicant’s fear of persecution on the basis of his Tamil ethnicity and imputed political opinion;[32]
b)the applicant’s claim to be at risk of having departed illegally from Sri Lanka and if he were required to return having sought asylum in Australia;[33] and
c)whether the applicant attracted any protection under the complementary protection assessment provisions.[34]
[32] Court book pages 320 to 323 at paragraphs [28] to [34].
[33] Court book pages 323 to 326 at paragraphs [35] to [49].
[34] Court book page 326 at paragraphs [51] to [56].
Ultimately, the IAA concluded that the applicant:
a)did not satisfy section 36(2)(a) of the Act;[35] and
b)did not meet the requirements of section 36(2)(aa) of the Act.
[35] Court book page 326 at paragraph [50].
Consequently, the IAA affirmed the delegate’s decision not to grant the applicant a protection visa.
Ground one
The first ground of review in the application is:
First, the IAA erred by not fashioning its procedures to cure the interpreter errors that affected the delegate’s interview. Not inviting the applicant to an interview under s 473DC in the circumstances of this case was unreasonable.[36]
[36] Applicant’s additional document filed 24 September 2018 at page 3.
In support of this ground, it was argued on behalf of the applicant that the IAA had the power to invite the applicant to give new information in an interview pursuant to section 473DC of the Act, alternatively to remit the matter back to the delegate.
At the heart of this submission are the following propositions:
a)the interview conducted by the delegate was compromised due to the poor quality of the interpreting services and therefore the applicant was “practically unable to put his testimony to the delegate”[37];
b)the interpreter issues affected crucial aspects of the applicant’s claims;
c)the IAA could have cured this difficulty by inviting the applicant to attend a further interview; and
d)the IAA’s failure to do so in the face of a request from the applicant in the post hearing submissions filed in January 2017 was legally unreasonable.
[37] Applicant’s outline of submissions filed 24 September 2018 at paragraph [4].
Before turning to address the submissions of each of the parties, it is necessary to say something about the nature of review permissible in a case such as this which involves a decision under Part 7AA of the Act, and the principles which apply in determining whether the exercise of a discretion by the IAA could properly be said to be legally unreasonable.
This application as noted, arises under Part 7AA of the Act. Relevantly, as noted in Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor [2018] HCA 16; 92 ALJR 481; 353 ALR 600 (“M174/2016”):
…Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (resolving the Asylum Legacy Caseload) Act 2014 (Cth) … to provide for what the simplified outline of the Part in s 473BA of the Act describes as “a limited form of review” of a “fast track decision” constituted by a refusal to grant a protection visa to an applicant statutorily designated to be a “fast track applicant”.[38]
[38] Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor [2018] HCA 16; 92 ALJR 481; 353 ALR 600 at [1].
A decision by the delegate to which Part 7AA of the Act applies, is automatically referred to the IAA for review.[39] Section 473CB of the Act then specifies the information which is to be provided to the IAA.
[39] Migration Act 1958 (Cth) s. 473CA.
Relevantly, section 473DA of the Act provides:
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Section 473DB of the Act goes on to limit the circumstances in which the IAA may consider new information or interview the referred applicant. Section 473DC to 473DE of the Act then go on to deal with the circumstances in which such new information might be obtained and how it is to be dealt with.
Section 473EA of the Act requires the IAA to make a written statement setting out its decision and the reasons for its decisions.
Relevantly for the purposes of this matter, section 473FA of the Act provides:
(1)The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3.[40]
[40] Migration Act 1958 (Cth) s. 473FA.
The powers of the IAA on review are limited by section 473(2) of the Act which relevantly provides:
The Immigration Assessment Authority may:
(a)Affirm the fast track reviewable decision; or
(b)Remit the decision for reconsideration in accordance with such directions or recommendations of the authority as are permitted by regulation.[41]
[41] Migration Act 1958 (Cth) s. 473(2).
As to the nature of the task performed by the IAA on review, Gageler, Keane and Nettle JJ noted in M174/2016:
Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under section 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.[42]
[42] Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor [2018] HCA 16; 92 ALJR 481; 353 ALR 600 at [17]; see also Gordon J at [90].
It is therefore clear that although limited in its capacity to obtain and have regard to information not before the delegate, the role of the IAA is to review the material before the delegate and determine for itself whether the applicant satisfies the criteria for a protection visa.
The issue in this case is whether given the interpreting issues raised by the applicant, it was possible for the IAA to “access” the information before the delegate, namely the applicant’s evidence, to enable the IAA to conduct that review.
The applicant’s case was in essence that the problems with understanding were so significant that the applicant’s evidence was not properly or adequately conveyed to the delegate and therefore by extension, was not properly before the IAA.
It was to this end that the applicant sought a further interview, initially before the delegate and then before the IAA.
The applicant’s written submissions filed on his behalf and dated
28 February 2017 relevantly stated:
…Further, if the IAA holds any concerns with (the applicant’s) credibility, we request that he be afforded an in person interview by the IAA. Particularly in view of the interpreting issues, we submit that (the applicant’s) credibility cannot be adequately evaluated only from the recording of his interview and the written material. Assessment of his demeanour is critical to a finding on credibility, and such an assessment needs to be made in the context of an interview with clear and accurate interpreting. In our submission, if there are doubts as to the applicant’s credibility, it is not possible to make a decision reaching the state of satisfaction required by s 65 of the Migration Act, or providing the applicant with procedural fairness, without a further interview.[43]
[43] Court book page 275.
The IAA considered and dealt with this submission at paragraphs 5 and 6. In particular, the IAA noted:
….The request is, essentially, a request that the applicant be given a second opportunity for the credibility of his claims to be tested. I am conducting a fast-track review under the Act. The IAA is not obliged to invite an applicant to provide new information whether in writing or in an interview, simply because the person requests it…the applicant has, in my view, had an opportunity to present his claims and to have his claims tested in the SHEV interview conducted by the delegate and taking all of the circumstances into account, I am not satisfied the circumstances of this case require me to invite the applicant to attend an interview.[44]
[44] Court book page 283 at paragraph [6].
It is important to note that at the time that the IAA made its findings, it had before it:
a)the applicant’s application and documents referred to it pursuant to section 473CB of the Act;
b)the applicant’s post hearing submission and January 2017 statutory declaration; and
c)the applicant’s February 2017 submissions.
It was submitted on behalf of the applicant that the IAA’s role was to conduct a de novo review of the delegate’s decision and
Without curing the defective interview below by inviting the applicant to an interview at the IAA, alternatively sending the matter back so the IAA could re-interview the applicant, the IAA constructively failed to carry out its review.[45]
[45] Applicant’s outline of submissions filed 24 September 2018 at paragraph [10].
It is well established that a statutory discretion must be exercised reasonably.[46] As noted by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; 329 ALR 491 (“Stretton”):
There is ‘an area of decisional freedom’ of the decision-maker within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness…
The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness…Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality…[47]
[46] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; ALJR 618; 297 ALR 225 at [23] to [30] per French CJ; [63] to [76] per Hayne, Keifel and Bell JJ and [88] to [92] per Gageler J.
[47] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; 329 ALR 491 at [7]-[8].
Importantly, Allsop CJ went on to say:
Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.[48]
[48] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; 329 ALR 491 at [12].
I have applied these principles in considering this matter.
In support of the proposition that there was no evident or intelligible justification for the rejection by the IAA of the applicant’s claims that he had been tortured and raped, in circumstances where his evidence was compromised by inadequate interpretation, the applicant referred to the High Court’s decision in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”).[49]
[49] Applicant’s outline of submissions filed 24 September 2018 at paragraph [9].
In SZVFW, Nettle and Gordon JJ, after noting that in determining whether an administrative decision is beyond power because it is legally unreasonable “…is not closed or limited by particular categories of conduct, process or outcome”,[50] they went on to say:
…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be the focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power (emphasis in original).[51]
[50] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [81].
[51] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84].
It was submitted for the applicant that without a complete record of the applicant’s interview with the delegate, the IAA could not determine if the delegate had mischaracterised the applicant’s evidence or failed to consider any of the applicant’s claims or evidence or make an assessment as to whether the applicant understood the interpreter for the entire interview. Ultimately, it was submitted that the IAA could not properly assess whether the applicant’s claims for protection should be accepted.
The court was referred by both parties to the seminal decision in relation to translation or interpreter error. It is common ground that none of these decisions related to the context of a Part 7AA of the Act review before the IAA.
In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6; 56 ALD 231 (“Perera”), Kenny J noted:
While the interpretation at a 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 the circumstances permit, the idea or concept as it has been expressed in the other language.[52]
[52] Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6; 56 ALD 231 at [29].
Moreover, as noted by Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (“SZTFQ”):
…it is not every departure from the standard of interpretation that prevents an applicant for refugee status from properly giving evidence before the Tribunal and error will only be established if the departure relates to a matter of significance for the applicant’s claim or the Tribunal’s decision.[53]
[53] SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [34].
In SZSEI v Minister for Immigration and Border Protection
[2014] FCA 465 (“SZSEI”), Griffiths J stated:…in assessing whether or not one or more mistranslations or non-translations give rise to jurisdictional error, it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected … It may well be enough that the translation was sufficiently accurate so as to convey the idea or concept being communicated. …
Furthermore, it is necessary to consider not only alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the overall process, but also to have regard to their cumulative effect.[54]
[54] SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [79]-[80].
Ultimately, the determination of whether “…inadequate translation or interpretation is not fair will depend… on the particular circumstances of the case.”[55] In this particular case, those circumstances include the fact that the applicant’s application was dealt with under Part 7AA of the Act with the intendent limitations on the review mechanisms.
[55] SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC; 219 FCR 212; 139 ALD 436 at [5].
Counsel for the Minister submitted that caution ought to be exercised in applying the general principles arising from the ‘translation error’ cases which have developed in relation to interviews pursuant to section 425 of the Act.
There is some force to this submission.
Section 425 of the Act imposes an obligation on the tribunal to invite an applicant to appear before it and give evidence and present arguments, unless one of the circumstances in section 425(2) of the Act applies. In that context, it has been accepted that an invitation to appear must provide the applicant with a meaningful opportunity to participate in that interview. Where an interpreter is required to allow the applicant to understand and communicate with the tribunal, translation errors, where of sufficient gravity, can lead to a finding that the tribunal has not carried out its statutory task.
Before considering whether any errors in the interpretation before the delegate could be said to give rise to a jurisdictional error on the part of the IAA, the following needs to be considered:
a)what translation errors are relevant; and
b)to what extent can any translation errors which did occur before the delegate infect the review conducted by the IAA in any event.
As noted above, the applicant’s post hearing submission lodged with the delegate on 27 January 2017 identified concerns with the interpreting services provided at the hearing on 13 January 2017. In that submission, the applicant’s representative identified three incidents of inaccurate interpreting. In the submission, the applicant’s representative indicated that they had “reviewed certain parts of the interview recording with the assistance of a Tamil interpreter”[56] and two incidents by way of example under the heading ‘concerns with interpreting’. In addition, the post hearing submission also referred to the misinterpretation of the applicant’s evidence in relation to his alleged sexual assault and in particular the incorrect use of the words ‘sexual harassment’ rather than ‘sexual assault’.[57]
[56] Court book page 210.
[57] Court book pages 210 to 211.
The applicant also submitted a further statutory declaration in which he provided further evidence regarding the alleged sexual assault also dated 27 January 2017.[58]
[58] Court book pages 235 to 236.
No further examples of inaccurate interpreting were identified in the applicant’s written submissions filed on his behalf with the IAA on 28 February 2017. Nor did the applicant, through his representative seek additional time in which to provide further examples of additional interpretation errors in the interview.
At the hearing of this matter before me, the applicant sought to rely on further exchanges in the interview before the delegate as evidenced in a transcript.[59] The Minister was granted leave to respond to those submissions in writing which occurred on 26 October 2018.
[59] See annexure KCHR-3 of the affidavit of Kate Christabel Haynes Rietdyk affirmed 3 October 2018.
In essence, it was submitted on behalf of the Minister that
ground one could only be assessed by reference to the material before the IAA at the time of the IAA’s determination. That is, as the further alleged interpreting errors identified by counsel for the applicant in the course of the hearing were not raised with the IAA, those matters cannot be said to render the IAA’s decision not to conduct an interview with the applicant or otherwise fashion its procedures to remedy any deficiency in the interpretation of the applicant’s evidence, unreasonable.
Whilst in certain cases it may be appropriate to allow such further ‘evidence’ in at this later stage, in the particular circumstances of this case, I agree with this submission.
The applicant first identified interpreter issues in its post hearing submission filed with the delegate on 27 January 2017. The applicant was at that stage represented by a solicitor and migration agent from the Refugee and Immigration Legal Centre. In that submission, the applicant identified three examples of interpreter error. Whilst it is correct that the specific examples given were not stated to be an exhaustive list of the applicant’s concerns, the applicant did not seek to put any further such instances, either before the delegate or indeed before the authority. Rather, the applicant indicated in his post hearing submission that:
…in view of these examples (which were only selectively reviewed on the basis that it had seemed apparent from the English interpretation that there may have bene errors) it should be borne in mind that other questions and responses may not have been accurately interpreted. In that context, we submit that (the applicant) should be afforded the benefit of the doubt in assessing the evidence given at tis interview, particularly if it is considered that any responses he gave were unclear, indirect or inconsistent.[60]
[60] Court book page 211.
Insofar as the post hearing submission requested a further interview, this was conditional and limited to any concerns the delegate may have had with the applicant’s evidence regarding his evidence of the alleged sexual assault.[61] Moreover, after being advised that the delegate had refused him a protection visa and the applicant’s claim was referred to the IAA, the applicant did not identify any further alleged interpretation errors. Whilst it is correct that the applicant continued to rely upon the submissions earlier made, including the post hearing submissions dated 27 January 2017, he did not identify any other concerns with the interpretation in the February 2017 submissions, nor did he request more time in which to provide that information to the IAA.
[61] Court book page 213.
In all of those circumstances and having regard to the fact the limited form of review provided for in Part 7AA of the Act, and that the applicant was at all relevant times legally represented, the reasonableness or otherwise of the IAA’s approach is to be against the material before it at the time it made its decision. It was reasonable for the IAA to proceed on the basis that the critical issues of concern were raised on the applicant’s behalf.
Having regard to the statutory framework within which the IAA was required to exercise its discretion to decide whether or not to acceded to the applicant’s request for a further interview, it was reasonably open to the IAA to refuse that request.
Whilst there is some merit to the proposition that although under Part 7AA of the Act, there is no obligation on the IAA to invite an applicant to an interview, if an applicant is invited to an interview, it is implicit that the applicant must be given a meaningful opportunity to participate in that interview. To that extent, the case law relating to interpretation error does apply to IAA proceedings. However, this is not a case where viewed individually or collectively, the errors identified in the post hearing submission lead to the conclusion that the applicant was not able to understand the questions asked of him and to convey his responses adequately.
In considering whether an interpretation error leads to a jurisdictional error, the interpretation errors must be material. None of the interpretation errors identified by the applicant in the course of these proceedings rise to that level of materiality.
It is also to be noted that in its reasons for decision, the IAA did not only base its rejection of the applicant’s claims on the lack of detail in his responses at the interview with the delegate. Rather, the IAA expressed concern about the fact that the applicant first raised his claim that his father was in the LTTE which resulted in him and his brother being under suspicion of LTTE links until 2016. The IAA noted that the applicant’s failure to refer to his father’s LTTE links in 2013 were put to him in the course of his interview. The IAA referred to the applicant’s response to these questions and to the post-hearing submissions made on the applicant’s behalf. I note that no issue is taken about the interpreting regarding the applicant’s disclosure of his father’s LTTE links.
After considering the applicant’s responses on this issue, the IAA concluded:
While it is plausible that, in his entry interview, he may have been reluctant to disclose his father’s LTTE membership, the applicant has not provided what I consider a credible explanation for why there is no mention of his father’s LTTE involvement in his 2013 statement which was prepared with the benefit of a registered migration agent.[62]
[62] Court book page 285.
To the extent that the applicant gave evidence that the interpreter was from India and may have misunderstood him as part of the justification for not previously mentioning his father’s LTTE links in his 2013 statement, the IAA noted:
While I accept that problems in translation can occur and that this may account for minor differences or discrepancies, it is not plausible that a qualified interpreter in the Tamil language would miss or misunderstand an entire claim and I do not accept that any deficiencies in the 2013 statement are attributable to this.[63]
[63] Court book page 285 to 287.
The IAA also referred to inconsistent evidence given in the SHEV interview in relation to whether he was questioned about his father during his various detentions. On the basis of all of these factors, the IAA concluded that it was not satisfied that that the applicant’s father was a member of the LTTE and that this was the cause of him being identified as a person of interest to the authorities.[64]
[64] Court book page 285 at paragraph [15].
In relation to the alleged torture and sexual assault, the IAA noted that the first time that this claim was made was at the SHEV interview on
13 January 2017. The IAA made reference to the applicant’s evidence in relation to this matter, including evidence provided in his post-hearing statement and statutory declaration dated 27 January 2017 explaining why he had not disclosed this earlier. The IAA also noted that the applicant had claimed that he had disclosed the sexual assault on his arrival in Australia and was offered counselling although there “was no information before me to verify this claim”.[65]
[65] Court book page 286 at paragraph [17].
In not accepting the applicant’s claims that he had been detained and tortured in 2007 and 2009, including being sexually assaulted, the IAA had regard not only to the questions and answers provided in the course of the SHEV interview, but also the fact that these claims were not made until very late in the process. In relation to the alleged sexual assault the first time that this claim was made was in 2016.
The IAA also gave consideration to the fact that although the applicant stated that he had suffered a broken arm, he had not provided any evidence that he had sought medical treatment for this.
Ultimately, the IAA did not accept that the sexual assault claim had been made out on the basis of a combination of factors, including not only the inconsistency in his responses in the SHEV interview, but also the absence of any detail in two earlier sworn statements, and other findings made about the applicant not being truthful in relation to other claims made.[66]
[66] Court book page 287 at paragraph [20].
The most serious error relates to the allegation about the alleged sexual assault. The applicant had the benefit of and did submit a further statutory declaration addressing this issue and the reason why he did not make this claim earlier. The IAA concluded that notwithstanding this further information, it was not satisfied that this incident had occurred. This finding of fact was open to the IAA on the basis of the information available to it, including its earlier findings that it was not satisfied that the applicant’s father was a member of the LTTE and that it was this connection which led to him and his brother being targeted.[67]
[67] Compare with CPN16 v Minister for Home Affairs [2018] FCA 872 at [83] to [84].
It was also submitted that it was open to the IAA to remit the decision for reconsideration and that its failure to do so was unreasonable. The IAA’s power to remit is limited by section 473CC(2)(b) of the Act and regulation 4.43 of the Migration Regulations 1994 (Cth) (“the Regulations”). I am not satisfied that remittal is permissible in these circumstances. In any event, for the reasons set out above, the decision made by the IAA was not unreasonable having regard to the statutory power and the facts of this particular case. Even if there was a power to remit, which I am not satisfied there is, that would not alter that conclusion.
Ground two
The second ground of review in the application is:
Secondly, the IAA failed to consider corroborating evidence in that it ignored both the applicant’s physical scars; and the details in his statutory declaration about being sexually assaulted. As such, the IAA constructively failed to carry out its review.[68]
[68] Applicant’s additional document filed 24 September 2018.
The applicant submitted that the IAA made no reference to the applicant’s claim to have scars corroborating the abuse he says he suffered at the hands of the Sri Lankan authorities or the detail of the torture and rape he says he suffered as set out in his statutory declaration of 27 January 2017.
It was said that the absence of any reference to these matters in the IAA’s reasons for decision is evidence of the IAA failing to perform its statutory task under section 473DB of the Act, namely to review the fast track decision by considering the review material it had received.
It was further submitted that this failure to comply with a statutory requirement rose to the standard of materiality required to result in the decision being affected by jurisdictional error.[69]
[69] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24]-[26].
It was submitted for the Minister that the IAA did consider the applicant’s claim to have been sexually assaulted including the evidence in his statutory declaration dated 27 January 2017.
As noted in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105:
We accept, as explained in Durairajasingham at [65], that s 430 of the Act does not require a line-by-line refutation of all the evidence but, as McHugh J there explained, whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.[70]
[70] Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [102].
Moreover, the IAA was required to “…set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.”[71]
[71] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [346].
In addition, it was submitted on behalf of the Minister that the alleged ‘scars’ were not ‘corroborating evidence’ in any event.
I agree with both of these submissions on behalf of the Minister.
It is evident from the IAA’s reasons that the IAA had before it the material referred under section 473CB of the Act including the statutory declaration in which he explains the reasons for not having raised the sexual assault claim earlier. At paragraph 20 of its reasons, the IAA stated: “even if I accept his reasons for not mentioning the incident before his interview…”[72]
[72] Court book page 288 at paragraph [20].
When read fairly, the IAA’s reasons clearly indicate that the IAA had regard to the material referred to it pursuant to section 473CB of the Act as required by section 473DB of the Act.
In addition, to the extent that it is suggested that the IAA made an error in not considering ‘corroborating’ evidence in the nature of the scars and injuries referred to in his 27 January 2017, not only is there no proper basis to conclude that the IAA did not consider this information, but in any event, the existence of such injuries could not be said to be corroborating evidence of the alleged assault. As noted by the IAA, had the applicant produced evidence of having obtained medical treatment contemporaneously, this would have been relevant to the issues for determination. But the mere existence of scars could not be said to be corroborating of the alleged cause of the scars. It would simply be further evidence from the applicant.
For each of these reasons, ground two is not made out.
Conclusion
As neither of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 24 May 2019
Court book page 211, annexure CLM-1 of the affidavit of Charlotte Lauren McKenzie affirmed
1 October 2018 at line 320.
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