BNM16 v Minister for Immigration and Border Protection
[2019] FCA 831
•31 May 2019
FEDERAL COURT OF AUSTRALIA
BNM16 v Minister for Immigration and Border Protection [2019] FCA 831
Appeal from: BNM16 v Minister for Immigration & Anor [2018] FCCA 2145 File number(s): VID 1532 of 2018 Judge(s): BEACH J Date of judgment: 31 May 2019 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – primary judge dismissed application for judicial review – refusal of Protection (Class XA) visa – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 65 Cases cited: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Date of hearing: 31 May 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr J Lipinski of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 1532 of 2018 BETWEEN: BNM16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BEACH J
DATE OF ORDER:
31 MAY 2019
THE COURT ORDERS THAT:
1.The appellant’s appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(revised from transcript)
BEACH J:
The appellant has appealed a decision of a judge of the Federal Circuit Court delivered on 9 November 2018. The primary judge dismissed an application for judicial review of a decision of the second respondent (the Tribunal) made on 3 June 2016. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa (the visa) under s 65 of the Migration Act 1958 (Cth).
On 11 December 2012, the appellant applied for the visa with the assistance of Fragomen (Australia) Pty Limited as his representative.
On 9 December 2013, a delegate of the Minister refused to grant the visa on the basis that the delegate was not satisfied the appellant was a person to whom Australia had protection obligations.
On 6 January 2014, the appellant applied to the Tribunal for review of the delegate’s decision.
By letter dated 5 November 2015 sent by fax to Fragomen, the Tribunal invited the appellant to attend a hearing on 10 December 2015. By letter dated 11 November 2015 sent by fax to Fragomen, the Tribunal notified the appellant that it had postponed the hearing, and would advise once a date became available. By letter dated 8 December 2015 sent by fax to Fragomen, the Tribunal invited the appellant to a rescheduled hearing on 28 January 2016.
On 8 January 2016, Wimal & Associates, a different representative of the appellant, requested that the Tribunal postpone the hearing on the basis that the appellant did not have in his possession the Department file, and that they would therefore need more time to prepare any necessary submissions. By letter dated 13 January 2016 sent by email to Wimal, the Tribunal notified the appellant that it would postpone the hearing date and would notify the representative once a new hearing date became available.
On 26 February 2016, the appellant re-appointed Fragomen.
By letter dated 15 April 2016 sent by email to Fragomen, the Tribunal invited the appellant to a rescheduled hearing on 17 May 2016.
The appellant, Fragomen and a Tamil interpreter, attended the hearing on 17 May 2016. Further written submissions were made by Fragomen on behalf of the appellant and sent to the Tribunal on 1 June 2016.
On 3 June 2016, the Tribunal affirmed the decision of the delegate not to grant the visa.
On 6 June 2016 the Tribunal notified the appellant of its decision to affirm the decision of the delegate.
Let me just summarise some aspects of the Tribunal’s determination.
The Tribunal noted that it had serious concerns about the appellant’s credibility due to the late disclosure of significant claims, inconsistencies in relation to key details and the plausibility of some of the appellant’s evidence.
In this context, the Tribunal considered the difficulties that had been raised concerning the interpreter, which difficulties had been raised in post hearing submissions on 1 June 2016. I might say that this morning that I have drawn the post hearing submissions to the attention of the parties as it seems to me to have been the time for the appellant to say all that he wanted to in terms of difficulties with the interpreter at the Tribunal hearing. The Tribunal, though, was satisfied that notwithstanding the problems raised with the question of the interpreter, that on the evidence before it the interpreting had been to a satisfactory standard and that the appellant had been able to meaningfully participate in the Tribunal hearing. I will return to this question later as it is relevant to the second ground of appeal raised before me.
Further, the Tribunal found on the evidence that the appellant did not face either a real chance of serious harm or a real risk of significant harm at the hands of the authorities or Karuna Group due to his Tamil ethnicity, any family links to the Liberation Tigers of Tamil Eelam (LTTE) or any imputed pro-LTTE political opinion.
Further, the Tribunal did not accept that the appellant would face a real chance or real risk of serious or significant harm as a result of being a failed and returned asylum seeker.
In consequence, the Tribunal found that the appellant was not a person in respect of whom Australia has obligations under the Refugee Convention and therefore did not satisfy the criterion set out in s 36(2)(a) of the Act.
Further, the Tribunal found that the appellant was not a person with respect to whom Australia has complementary protection obligations under s 36(2)(aa) of the Act.
On 23 June 2016, the appellant filed an application for judicial review in the Federal Circuit Court alleging two grounds of review in the following form:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
The primary judge dismissed the application on 9 November 2018. It is not necessary to detail his reasons.
On 29 November 2018 the appellant filed a notice of appeal in this Court which contained two grounds of appeal in the following form:
1.The Tribunal has not assessed the appellant’s integer claims of being a Young male of Tamil ethnicity from the East of Sri Lanka and had an imputed political opinion of supporting the LTTE. The Tribunal only made a finding that the appellant had no real chance of serious harm or a real risk of serious harm at the hands of the Karuna Group. The learned judge erred in holding with the Tribunal that it did assess the above claims. (Reference is drawn to paragraph 19 of the reasons for judgement)
2.The learned judge erred in holding with the Tribunal that the appellant was not denied the opportunity to provide his evidence. (Reference is drawn to paragraph 27 of the Reasons for Judgment). The Tribunal accepted that the standard of interpretation is not one of perfection (at paragraphs 25 & 27 of the reasons for judgment) and acknowledged that the interpreter interpreted a word “outside” when the appellant claimed he was referring to being in overseas. (Paragraph 25 of the reasons for judgment). The learned judge erred that the appellant was afforded procedural fairness despite the fatal fl[a]ws of the interpreter.
Let me deal with each ground of appeal in turn.
Ground One
This ground asserts that the Tribunal erred by failing to consider the appellant’s claim to fear harm on the basis of being a young male of Tamil ethnicity from the East of Sri Lanka who had an imputed political opinion of supporting the LTTE. Now I note that this ground was not expressly raised before the primary judge, but I will grant leave to raise it.
Of course it may be accepted that a failure to deal with a claim which has been expressly or impliedly made can amount to jurisdictional error. And where the Tribunal fails to make a finding on a substantial and clearly articulated claim or integer thereof relying upon established facts, that failure can amount to a constructive failure to exercise jurisdiction. But is that what happened here? I do not think so.
Now before the Tribunal the appellant claimed to fear harm on the basis of being a male of Tamil ethnicity, being from the East of Sri Lanka, being of appropriate age to have been involved in the LTTE during the Sri Lankan civil war, and having an imputed political opinion of supporting the LTTE.
And as is well apparent from the material before me:
(a)the appellant in his statutory declaration annexed to his visa application claimed that if he returned to Sri Lanka, he would be persecuted because he is “Tamil”;
(b)at an interview before the delegate on 28 August 2013, the appellant claimed to fear harm on the basis of his “Tamil race”;
(c)in the delegate’s decision, the delegate assessed the visa application on the basis that the appellant made his claim “against the Convention grounds of his Tamil race and imputed political opinion of being an LTTE supporter”;
(d)in the appellant’s submissions to the Tribunal dated 7 August 2014, the appellant claimed to fear harm on the basis of his “imputed political opinion of supporting the LTTE…”, based on, inter alia, being an “ethnic Tamil from the Eastern Province of Sri Lanka” and being “at the appropriate age to be involved with the LTTE during the Sri Lankan civil war”; and
(e)in post-Tribunal hearing submissions dated 1 June 2016, the appellant added to his claim that he feared harm on the basis of being a “Tamil male” by making a reference to country information referring to “young Sri Lankan men, Tamil speakers” who suffered torture upon forcible return to Sri Lanka.
The Tribunal expressly considered these claims. The Tribunal set out these claims at [22], noting that “the submissions…argue the applicant is owed protection on the basis of his Tamil ethnicity, imputed pro-LTTE political opinion…[t]hey also refer to various risk factors…including his profile as an ethnic Tamil from the Eastern Province…that he was the right age for LTTE involvement during the war…” ([22]). The Tribunal also noted that it discussed with the appellant profiles of interest to the authorities, including “Tamil males or from the North or East” ([49]). The Tribunal then “considered whether the applicant would face a future risk of harm on the basis of his Tamil ethnicity and/or imputed LTTE political opinion” including being a “Tamil, a Tamil male or a Tamil male from formerly LTTE-controlled areas such as the North or East” ([78] to [79]).
The Tribunal then proceeded to find that being a “…Tamil, a Tamil male from formerly LTTE-controlled areas such as the…East no longer gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with a pro-LTTE opinion” ([79]). Further, it did not accept that “…the fact that [the appellant] may have been the right age for LTTE involvement during the war [would] increase the chance or risk [of harm] to one that is real and not far-fetched or remote” ([85]). Further, it found that the appellant did not demonstrate that he faced either a “real chance of serious harm…due to his Tamil ethnicity, imputed LTTE political opinion, as a failed asylum seeker or for any other Convention ground” ([99]).
These findings were premised on the Tribunal’s consideration of the appellant’s evidence underpinning those claims, as well as country information. In this respect, the Tribunal also found that:
(a)the appellant provided inconsistent evidence in relation to his alleged support and activities for the LTTE when he was at school ([57]);
(b)the appellant’s addition of new claims regarding his participation in LTTE or Tamil-related events in 2005 gave rise to significant doubts about the credibility of his evidence on this issue ([59]); and
(c)given its credibility concerns, it did not accept:
(i)that the appellant was an LTTE supporter or that he had become involved in the LTTE ([60]); and
(ii)that the appellant left Sri Lanka due to his fear of being identified and harmed because of his association with the LTTE ([64]).
Further, the Tribunal also found that the country information suggested that being a Tamil male from a formerly LTTE-controlled area such as the North or East, no longer gave rise to a risk profile in Sri Lanka nor did it impute an individual with a pro-LTTE opinion, and that this was not sufficient to give rise to a real chance of serious harm or real risk of significant harm ([79] to [80]).
Further, the Tribunal also found that in relation to the appellant’s claim to fear harm because he was at the appropriate age for LTTE involvement at the time of the civil war, it considered that the appellant did not face either serious or significant harm in the immediate post-war period as a result of this factor. The Tribunal also considered that the chance or risk that the appellant would be targeted six years later was remote, and did not accept that the authorities or Karuna group were looking for people like the appellant ([85]).
In my view the Tribunal by dealing with the specific claims necessarily embraced within them the more diffuse claim of the appellant being a young Tamil male. It dealt in detail with the appellant’s claims concerning his Tamil status. It was also aware of his age. Further, nothing that the appellant has put before me establishes any substantially different dimension to his claims that could have made any material difference to the Tribunal’s determination.
This ground of appeal is rejected. Let me turn to ground 2.
Ground Two
Ground 2 asserts that the primary judge erred in finding that the appellant was not denied an opportunity to provide his evidence and in finding that the appellant was afforded procedural fairness despite the “fatal flaws” supposedly of the interpreter.
The appellant’s complaint refers to the Tribunal’s decision in which the Tribunal accepted that at the hearing before it, the interpreter interpreted a word as “outside” when the applicant claimed he was referring to “overseas”. That paragraph is, of course, [55] which I again drew to the attention of the appellant this morning for his consideration.
Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 discussed the role of interpreters in Tribunal proceedings. Perera recognises that the requisite standard of interpreting is not one of perfection. Nevertheless “some interpretations will be better than others, and a particular interpretation may well be less than perfect but yet acceptable for the Tribunal’s purposes” (at [26]). Her Honour also identified various factors which might lead to a conclusion that an applicant has been effectively prevented from giving their evidence such as (at [41]):
…the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter…
But I should say here that in considering her Honour’s analysis and the factors referred to, I am not in any way satisfied that the appellant was given less than an adequate opportunity to properly give his evidence before the Tribunal. Not every departure from the standard of interpretation will be sufficient to establish that the appellant was denied the opportunity to a fair hearing. In the present case it has not been demonstrated that any departure from the relevant standard related to a matter of significance to his claims and in any event that there was a sufficient connection between the inadequate translation and the Tribunal’s decision.
In my view, the primary judge considered this question carefully. The primary judge considered the specific error in translation disclosed in ground 2, noting that the appellant “stated that he has told the Tribunal that he had met a friend outside the country which had been interpreted that he had met a friend outside his house…” ([25]). The primary judge then referenced passages from the Tribunal decision which considered this issue, including that it did not “accept on the evidence before it that any of the concerns it has with the Applicant’s evidence…can be explained by any issues with interpreting” (Tribunal’s reasons at [55]).
The primary judge having regard to Perera considered that the appellant had not, despite ample opportunity, demonstrated how this issue of interpretation affected the substance of the Tribunal decision, including its credibility findings. His Honour proceeded to find that there was no apparent basis for asserting that there had been any denial of procedural fairness in the way the Tribunal conducted the hearing or the proceeding generally ([26] to [28]).
I would note also that after the Tribunal hearing, it is quite clear from the appeal book that the appellant sought a tape of the hearing before the Tribunal and was given such a tape, and that that tape was then properly considered by the appellant’s agent after the Tribunal hearing.
So much is apparent from a letter dated 1 June 2016 forwarded by Fragomen to the Tribunal pointing out various issues concerning the interpreting. My review of that letter indicates that such problems were not of such substance as to undermine confidence in the general accuracy or utility of the interpretative exercise that occurred before the Tribunal. I also note that the Tribunal itself had before it the Fragomen letter of 1 June 2016 and carefully considered the interpretation question in [55] of its reasons. In my view, there was on the material before me and before the primary judge not demonstrated to be a want of procedural fairness by reason of any imperfections in the interpretation process that occurred relevantly to the Tribunal hearing.
In my view the primary judge correctly found that the appellant had failed to demonstrate that the interpretation issues related to a matter of significance to his claims and that there was a sufficient connection between the imperfections in the translation and the Tribunal’s decision.
I am not satisfied that the appellant was denied procedural fairness and no jurisdictional error has been shown concerning the Tribunal’s decision or any error shown concerning his Honour’s approach. Accordingly I would reject ground 2 as well.
Other matters
I should mention one other matter. Before me this morning the appellant wanted to put two types of further information before me.
One type of information was to explain the current difficult circumstances in Sri Lanka. But as I pointed out to the appellant, that material is not directly relevant to the more limited task that I have sitting on appeal from the Federal Circuit Court which itself is there to consider jurisdictional error in terms of the Tribunal’s reasons, based upon the material that was then before the Tribunal. Another type of information that the appellant desired to put before me was a report of an event that took place in Sri Lanka on 16 May 2016. But as I explained to the appellant, that material, if it be relevant, ought to have been put before the Tribunal at the time. And, of course, I note that the Tribunal did not deliver its decision until 3 June 2016 and that the appellant had also through his agent been given an opportunity to put further post-hearing material before it, which his agent did on 1 June 2016. So if that material was relevant, adequate opportunity had already been provided to give that material to the Tribunal at the earlier point in time. And I should also say this. Looking at the material that was before the Tribunal, and also considering the material that was referred to in the Fragomen letter of 1 June 2016, which I might say goes on for 68 paragraphs and something like 20 pages, the type of material that the appellant sought to put before me this morning dealing with this episode in May 2016 was of a similar class to the material that had already been put to or was before the Tribunal. Further, such matters were also the subject of more general country information that the Tribunal already had before it and took into consideration. So that is as much to say that even if I could take into account that material, I do not think that there is any realistic possibility that if that material had been before the Tribunal, assuming it not to have been, that such material could have changed the Tribunal’s determination.
So for all of the above reasons, I would dismiss the appellant’s appeal with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate:
Dated: 3 June 2019
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