BRR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 304
•30 March 2022
FEDERAL COURT OF AUSTRALIA
BRR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 304
Appeal from: BRR17 v Minister for Immigration & Anor [2019] FCCA 222 File number: VID 202 of 2019 Judgment of: BROMBERG J Date of judgment: 30 March 2022 Catchwords: MIGRATION – unrepresented litigant – appeal from a decision of the Federal Circuit Court – whether rejection of claim that inconsistencies in his evidence were the result of the poor quality of interpretation was illogical – whether making an assessment of the standard of interpreting was erroneous – appeal dismissed Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 24 March 2022 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms I Ward of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 202 of 2019 BETWEEN: BRR17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
30 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant pay the First Respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The appellant appeals from the orders of the Federal Circuit Court of Australia (as that Court was then known) made in BRRI7 v Minister for Immigration & Anor [2019] FCCA 222. The appellant was unrepresented before the Federal Circuit Court and is unrepresented in this Court.
The appellant is a citizen of Lebanon. He first applied for a visa in December 2013 on the basis that he feared harm from the Hezbollah due to his involvement with assisting Syrian refugees as a part of the Lebanese Scouts movement as well as the general violence and insecurity in Lebanon. With the assistance of an interpreter, a delegate (Delegate) of the first respondent (Minister) did not find the appellant to be a credible witness and did not accept his claims. His application for a visa was refused in April 2015.
The appellant sought review of that decision by the second respondent (Tribunal). He appeared before the Tribunal with the aid of an interpreter. The Tribunal found that the appellant had provided inconsistent evidence in relation to his political affiliations, his activities and why he was targeted in Lebanon, his role and participation in demonstrations in Lebanon, his experiences in Lebanon, experiences of his friends and acquaintances in Lebanon, experiences of his family members in Lebanon, his residential address and employment, and specifically in relation to a letter provided by him as part of his application. The Tribunal did not accept the appellant’s explanations and considered that the inconsistencies cast doubt on the veracity of his claims.
Relevantly, the appellant complained at the hearing before the Tribunal that the interpreter assisting him during his interview with the Delegate was from an Iraqi background, which he said had resulted in a misunderstanding during the interview. In its reasons, the Tribunal relevantly said this:
[29] At the Tribunal hearing, the applicant also claimed that the interpreter assisting him at the interview was from an Iraqi background, which resulted in misunderstandings. As it was put to the applicant at the hearing, the Tribunal has carefully listened to the audio recording of the interview, which did not indicate that the applicant had encountered any difficulties in comprehending the delegate's questions and putting his evidence forward. The Tribunal also put to him that, neither at the interview nor at any other point after the interview, had he raised any concerns with regard to the interpreter or the standard of interpreting. The applicant responded that he was not asked by the delegate at the interview whether he understood the interpreter. He did not know if he had the right to object to the interpreter. He stated that this was the reason why in his response to the hearing invitation he had specifically asked for an Egyptian interpreter and not a Lebanese, Syrian or an Iraqi interpreter.
[30]In his submission of 9 January 2017, the applicant’s representative submitted that, ‘in some instances’ at the interview, the applicant had to ask the interpreter to rephrase questions and the interpreter also asked the applicant ‘at various times’ to repeat what he was saying. It was further submitted that the applicant's responses were ‘at times poorly translated’. However, the only example the applicant's representative could offer was the following:
[I]n response to the question about the political party that Rafik Hariri represented, the Applicant answered that Rafik Hariri was the Prime Minister of Lebanon.
However, the Iraqi interpreter translated the Applicant's response as ‘yes, and he was the head of government.’
[31]It was submitted that the poor quality of interpreting adversely affected the manner in which statements were provided by the applicant, depriving him of the opportunity to accurately and consistently present his case. The Tribunal does not agree with this view. On the basis of the evidence before it, the Tribunal is not satisfied that the standard of interpretation at the interview was so inadequate that the applicant was effectively prevented from giving evidence. The Tribunal is not satisfied that the standard of interpreting at the interview explains the inconsistencies in the applicant’s evidence, particularly the inconsistencies between his written claims to the Department and his oral evidence to the Tribunal. The Tribunal is not satisfied that interpreting errors at the interview had deprived the applicant of the opportunity to meaningfully present his case or that they had formed the basis of any adverse credibility findings.
At [57] the Tribunal also said:
As noted earlier in the decision record, the applicant and his representative referred to errors in interpretation at the interview in order to explain ‘some of the inconsistencies’ in the applicant's evidence. The Tribunal has already addressed this issue in the paragraphs further above. The Tribunal does not accept that the standard of interpreting at the interview explains the inconsistencies in the applicant’s evidence.
In April 2017, the appellant applied for judicial review of the decision of the Tribunal in the Federal Circuit Court. The appellant’s first ground of review was that “[t]he decision of the Tribunal is affected by an error of law in that the Member impermissibly made findings in regard to credit that were not substantiated by the evidence, in particular, by commencing its analysis by only assessing the inconsistencies in the applicant’s evidence”. The Minister contended, and it is also contended on appeal, that a finding of fact may only be impugned where it lacks a logical and probative basis and that “extreme” illogicality must be shown. The primary judge concluded that the Tribunal’s reasons were comprehensive and did not disclose illogicality in the sense required to establish jurisdictional error. At [56], her Honour relevantly said:
I therefore find on the basis of this analysis of the tribunal’s reasons, that there is relevant evidence and an intelligible justification to support the tribunal’s rejection of the applicant’s claims, and that the tribunal’s findings in relation to the inconsistencies in the applicant’s claims and evidence and its ultimate adverse credibility findings were open to it based on an evaluation of the evidence before it.
The appellant’s second ground of review before the Federal Circuit Court merely adverted to his having applied for assistance from Victorian Legal Aid. The Federal Circuit Court concluded that the appellant’s second ground of review did not disclose jurisdictional error and was therefore not made out. As neither of the appellant’s grounds was made out, the application was dismissed with costs.
By his notice of appeal, the appellant seeks to appeal from the orders of the Federal Circuit Court on a single ground with two limbs:
Grounds of Appeal
1. The Federal Circuit Court erred by not finding the Tribunal’s decision was illogical, irrational or legally unreasonable, in relation to the following:
a. The Tribunal's finding that it was open to the Tribunal to find that the standard of interpreting at interview explained the inconsistencies in his evidence at paragraph 51 of the Federal Circuit Court Decision.
b.At Paragraph 20 of the Federal Circuit Decision, The Federal Circuit Court erred in accepting that it was open to the Tribunal to make an assessment of the standard of interpreting at the hearing.
The Minister accepted that the ground of appeal in this Court is broadly consistent with the first ground of review before the primary judge in so far as it challenges adverse credibility findings made by the Tribunal. Accordingly, I do not understand there to be a challenge to the appellant’s ground of appeal on the basis of disconformity with what was argued below.
The ground of appeal in this Court is directed to the primary judge’s reasoning at [20] and [51]. However, those paragraphs merely provide the primary judge’s summary about the complaint made by the appellant about the interpreter at the interview with the Delegate and how in its reasons the Tribunal dealt with that complaint (citations omitted):
[20]The applicant also claimed that the interpreter assisting him at the interview was Iraqi and this resulted in some misunderstandings. The tribunal member listened to the audio of the interview and concluded that there was nothing which indicated that the applicant had encountered any difficulties. For this and related reasons, the tribunal did not accept this as a satisfactory explanation of the discrepancy in the applicant’s claims. The tribunal found that the interpreting did not deprive the applicant the opportunity of meaningfully presenting his case.
…
[51]The tribunal also considered the applicant’s claims that some of the inconsistencies in his evidence could be explained by the difficulties he experienced with the interpreter services he received. The tribunal did not accept that the standard of interpreting at interview explained the inconsistencies in his evidence.
The primary judge’s brief deliberation rejecting error in the findings made by the Tribunal in relation to inconsistencies in the appellant’s evidence are at [56] as set out above.
The appellant provided no written submissions in support of his appeal. At the hearing before this Court the appellant appeared with the aid of an interpreter. Before asking for his submissions at the hearing, the Court directed the appellant to his notice of appeal and to the substance of the allegations there made that the Tribunal erred in not accepting that he had experienced difficulties with the translation provided to him at the interview with the Delegate. The appellant was asked to direct his submissions to the error alleged. In making his submissions, the appellant referred to the fact that the interpreter had been an Iraqi interpreter. He identified that there were differences of expression between the dialect of Arabic spoken by the interpreter and the dialect spoken by him. He otherwise did not address the alleged errors in question. He made submissions of no relevance to the question before the Court, including in relation to his health, his situation upon arrival in Australia and his improved situation now.
The Minister submitted that a finding of fact may only be impugned where it lacks a rational and probative basis: see generally CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (McKerracher, Griffiths and Rangiah JJ). In order to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, the Minister said that it is necessary to demonstrate “extreme” illogicality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30(5)] (Kenny, Kerr and Perry JJ).
The Minister observed that the Tribunal had reviewed the audio recording of the appellant’s interview with the Delegate and put to the appellant that he did not appear to have any difficulties in comprehending the Delegate’s questions or putting his evidence forward. On this basis, the Minister contended that the Tribunal’s reasoning had an intelligible justification for rejecting the appellant’s claim. It could therefore not reach the high standard necessary to impugn a finding on the basis of illogicality.
For these reasons the Minister said that the primary judge’s reasoning did not disclose appealable error.
Contrary to the allegations made in the ground of appeal, the primary judge did not find at [51] that it was open to the Tribunal to find that the standard of interpreting at interview explained the inconsistencies in his evidence. Nor did the primary judge find at [20] that it was open to the Tribunal to make an assessment of the standard of interpreting at the hearing. As already stated, in those paragraphs the primary judge merely summarised the position taken by the Tribunal.
In fairness to the appellant and recognising, in particular, that he lacks legal representation, I will construe the first limb of the ground of appeal as alleging that the primary judge erred in failing to identify illogicality in the Tribunal’s rejection of the appellant’s claim that some of the inconsistencies in his evidence were the result of the poor quality of interpretation provided to him at the interview with the Delegate. I will also construe the second limb of the ground of appeal as raising error on the part of the primary judge in failing to identify jurisdictional error in the Tribunal making an assessment of the standard of interpreting at the interview before the Delegate.
For the following reasons those allegations should be rejected.
A fair reading of its reasons demonstrates that the Tribunal had a sufficiently logical basis for its non-satisfaction that the quality of interpreting was poor and that that explained the inconsistencies in the appellant’s evidence. First, the Tribunal reviewed the audio recording. Fairly read, the Tribunal’s statement at [29] that its review of the audio “did not indicate that the [appellant] had encountered any difficulties in comprehending the [Delegate’s] questions and putting his evidence forward” is not to be understood as anything more than the Tribunal stating that it was of the view that the audio did not reveal any apparent misunderstandings or difficulties with the interpreting such as might have been revealed if questions or answers needed to be repeated or if complaints or frustrations had been expressed. Second, the Tribunal noted at [30] that in submissions made by the appellant’s representative where the allegations of poor interpreting were specifically propounded only a single example was provided and given the inconsequential nature of that example, the Tribunal must be understood to be saying that no material difficulty with the interpretation provided was demonstrated. On that basis the Tribunal concluded that the interpreting provided at the interview did not explain the inconsistencies in the appellant’s evidence. There was no illogicality in that conclusion.
Furthermore, in so doing, the Tribunal did not purport to make an assessment of the standard of interpreting at the hearing which is the premise of the second limb of the ground of appeal. The Tribunal merely assesses whether the appellant had substantiated his allegation that the interpretation provided had caused difficulties. In so far as this allegation seeks to suggest that the Tribunal had made some attempt to assess the competency of the Arab speaking interpreter whilst itself lacking expertise in Arabic, the allegation is misdirected because no such exercise was conducted by the Tribunal.
For those reasons, no appealable error is disclosed and the appeal should be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate:
Dated: 30 March 2022
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