BTQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 72
•6 February 2020
FEDERAL COURT OF AUSTRALIA
BTQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 72
Appeal from: BTQ16 v Minister for Immigration and Border Protection [2019] FCCA 2101 File number: NSD 1339 of 2019 Judge: GRIFFITHS J Date of judgment: 6 February 2020 Catchwords: MIGRATION – whether the primary judge erred by not allowing an affidavit of an unaccredited translator to be admitted – whether the primary judge erred by not allowing evidence as to why a formal transcript from an accredited translator could not be provided – whether the primary judge erred by failing to admit an affidavit under s 79 of the Evidence Act 1995 (Cth) as evidence of an ‘ad hoc’ expert – whether the primary judge erred by not allowing oral evidence from a deponent to address her evidence or qualifications – whether the primary judge erred by not giving the appellant a proper opportunity to tender evidence of alleged mistranslations and false translations by an interpreter – whether the primary judge erred by misconstruing or misapplying ss 424AA and 424A of the Migration Act 1958 (Cth) Legislation: Evidence Act 1995 (Cth) ss 76, 78, 79
Federal Circuit Court Rules 2001 (Cth) r 15.07
Migration Act 1958 (Cth) ss 424AA, 424A, 425, 476
Cases cited: Aon Risk Services Australian Ltd v Australian National University [2009] HCA 27; 239 CLR 17
BTQ16 v Minister for Immigration [2019] FCCA 2101
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123)
Date of hearing: 5 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: G Johnson Solicitor for the Respondents: HWL Ebsworth ORDERS
NSD 1339 of 2019 BETWEEN: BTQ16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
6 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, as agreed or taxed.
3.The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
This appeal is from a decision of the Federal Circuit Court of Australia (FCCA), in which the appellant’s application for judicial review was dismissed. The judicial review related to a decision of the Administrative Appeals Tribunal (AAT) dated 21 June 2016, in which the AAT affirmed the delegate’s decision to refuse to grant the appellant a protection visa.
The appellant represented herself in the appeal, with the assistance of an accredited interpreter. Notably, she was represented by both counsel and a solicitor in the FCCA.
Summary of background matters
The appellant is a citizen of Georgia. She arrived in Australia on 24 March 2013 on a student visa. She applied for a protection visa on 19 June 2013, claiming to fear harm on the basis of discrimination which she said she had suffered because of her Ossetian ethnicity and for political reasons. She claimed that she was attacked in 2008 by two men who invaded her property. She claimed she was beaten because she resisted their attempts to sexually assault her. She claimed that she was not assisted by the police and that she suffered psychological effects. She also claimed to have suffered discrimination in the workplace because of her ethnicity including having been dismissed from her job as an accountant. She claimed that when she was working in the Georgian civil service in May 2012 she was approached by the head of a secret service unit who required her to collect information about companies who supported the political party in opposition to the Georgian government. She claimed that after the opposition was elected at the next election, she became the subject of investigation. She claimed that in December 2012, two men came to her house, stole items, kidnapped and assaulted her.
The Minister’s delegate refused to grant her a protection visa. The delegate found that the appellant had fabricated a series of claims based on her ethnicity. The delegate was not satisfied that the appellant had been impeded in her interview because of the interpreter’s conduct. The delegate pointed out that, in any event, the appellant was given an opportunity to provide a post-interview submission to address any concerns arising from the interview and the appellant had availed herself of that opportunity.
The AAT’s reasons summarised
Relevant passages from the AAT’s reasons for decision are set out at [19] of the FCCA’s reasons for judgment, which are reported as BTQ16 v Minister for Immigration [2019] FCCA 2101. The appellant did not question the accuracy of that summary. The appellant was represented by a solicitor at the AAT hearing, and also had the assistance of an interpreter and a psychologist as a support person.
The FCCA proceedings
As the Minister pointed out in his written submissions, the proceedings in the FCCA were “procedurally complex”, notwithstanding that the appellant was legally represented on each of the four hearing days on 7 December 2018, 29 January 2019, 12 March 2019 and 2 April 2019.
In the appeal to this Court, the Minister provided a helpful table which summarised the evidence which the appellant sought to adduce in the FCCA, the Minister’s objections to some of that evidence and the primary judge’s rulings thereon:
Evidence sought to be adduced by appellant Appeal Book reference Objection by Minister Ruling 1. Appellant’s affidavit made on 14 August 2016 AB 405 N/A Not read by appellant. See J [31]-[40] 2. Affidavit of Ms Metledge made on 19 February 2019 AB 541 Objection to parts of the affidavit, and to Annexure A. No objection to Annexure B Annexure B (AB 552-594) admitted into evidence: J [41]-[42] 3. Affidavit of Nadia (sic) Rostomashvili made on 19 February 2019 AB 519 Objection Rejected. J [43]-[82] 4. Oral evidence proposed to be given by Ms Metledge A/A Objection Leave to adduce further oral evidence refused J [83]-[88] 5. Affidavit of the appellant made on 20 January 2019 AB 538 Objection Rejected. J [89]-[102].
The amended application for judicial review in the FCCA contained six grounds of review, but the first ground was not pressed: see FCCA reasons at [106]. As will emerge, it is particularly important to note that this ground was not pressed because many of the grounds of appeal appear to relate to this matter. The Court told the appellant during the course of the hearing of the appeal that she would have to obtain leave to agitate a ground in the appeal which was not pressed below, and that this may be difficult in light of the fact that her barrister below, presumably on instructions, did not press ground 1 after the primary judge ruled Ms Rostomashvili’s affidavit to be inadmissible.
The primary judge’s reasons for dismissing the remaining five grounds of review may be summarised as follows (dealing with them in the same order as the FCCA):
(a)Ground 5 was that the AAT breached s 425 of the Migration Act 1958 (Cth) (Act) in its conduct of the review. For reasons set out at [108]-[152] the primary judge concluded that the ground was not made out.
(b)Ground 6 was that the AAT failed to engage in an active intellectual exercise before rejecting certain corroborating evidence. In particular, the appellant alleged a failure by the AAT properly to engage with the contents of a psychologist’s report she had submitted. For reasons set out from [154] to [206], the primary judge found the AAT did engage meaningfully with the report: see [191].
(c)Ground 3 was that the AAT misconstrued the appellant’s claims. The primary judge rejected the ground: [207]-[240].
(d)Ground 2 was that the AAT breached s 424AA and s 424A of the Act. The primary judge rejected the ground: [242]-[253].
(e)Ground 4 involved a further allegation of a breach of s 425 by the AAT, focussed on [30] of the AAT’s decision. By reference to the transcript evidence, the primary judge rejected the ground: [255]-[264].
The appeal
The appellant relied on a notice of appeal filed on 21 August 2019.
The listed ‘grounds of appeal’ are broadly stated, and lack any detail or substance. It is unclear whether the grounds of appeal listed are intended as a challenge to the primary judge’s judgment, or to the AAT’s decision.
The notice of appeal lists seven ‘Particulars’. They are as follows (without alteration):
1.Nicholls J, erroneously failed to allow important inadequate translation evidence to be admitted when that evidence was essential to the main argument of review from the Tribunal decision.
2.Nicholls J, failed to accept the reasons why no formal transcript by an accredited translator was not provided.
3.Nicholls J, failed to allow Natia Rostomashvili's Affidavit evidence to be accepted into evidence as an 'ad hoc' expert within the meaning of s.79 of the Evidence Act
4.The Federal Circuit Court erred in not allowing Ms Natia Rostomashvili to give oral evidence when she was at Court specifically to address any difficulties the Court may have had with her evidence or qualifications
5.The Federal Circuit Court erred in misconstruing and/or misapplying s.424AA and s.424A of the Migration Act.
6.The Tribunal erred by failing to engage in an active intellectual process before disregarding corroborating evidence.
7.The Federal Circuit Court failed to give the Appellant a proper opportunity to tender evidence of the mistranslations and false translations which occurred at the hearing before the Second Respondent (the Tribunal).
It is difficult to reconcile the listed ‘particulars’ with the aforementioned ‘grounds of appeal’.
The appellant’s submissions summarised
The appellant was obviously in a difficult position presenting her own case on the appeal because she was not legally qualified.
The appellant failed to provide an outline of written submissions.
When the appellant was advised by the Court to say whatever she wished in support of her notice of appeal, she said that she found the whole experience to be frustrating because she had done her best to provide the FCCA with evidence in support of her complaint regarding the quality of the translation in the AAT. She said that the exercise had cost her a good deal of money particularly because of the number of adjournments granted by the FCCA. She said that she tried to find an accredited interpreter in the Georgian language but was unable to do so and the primary judge then prevented her solicitor from giving oral evidence as to the attempts to find an accredited interpreter.
The Minister’s submissions summarised
The Minister’s submissions were particularly helpful. Indeed, as will emerge, I accept them in their entirety. Accordingly, in the interests of not adding unduly to the length of these reasons for judgment, I will set out the Minister’s submissions in more detail than generally would be the case. The Minister acknowledged that it is necessary to address the seven ‘particulars’ above as they raise substantive complaints concerning the primary judge’s rulings on evidence (with the exception of particulars [5] and [6], which are separately addressed below).
The first, second, third, fourth and seventh ‘particulars’ each take issue with the primary judge’s rulings on, and consideration of the appellant’s arguments concerning, the affidavit of Natia Rostomashvili dated19 February 2019. This affidavit was addressed at [43]-[82] of the FCCA’s reasons. Challenges to rulings on evidence made by a trial judge may legitimately be raised on appeal, and may entitle the appellant to relief to the extent that any error in the ruling affected the final result: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [4]-[7]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [78]. The primary judge gave detailed reasons for rejecting the reading of the affidavit: [44]-[82].
The specific five complaints raised in the particulars challenging the primary judge’s findings on the evidence are as follows:
(a)The primary judge failed to allow the Rostomashvili affidavit to be admitted when that evidence was essential to the main argument (Particular (1)).
(b)The primary judge failed to accept the reasons why a formal transcript by an accredited translator was not provided (Particular (2)).
(c)The primary judge failed to admit the Rostomashvili affidavit under s.79 of the Evidence Act 1995 (Cth) (Evidence Act) as evidence of an ‘ad hoc’ expert (Particular (3)).
(d)The primary judge erred in not allowing Ms Rostomashvili to give oral evidence to address any difficulties the Court may have had with her evidence or qualifications (Particular (4)).
(e)he primary judge failed to give the appellant a proper opportunity to tender evidence of the mistranslations and false translations (Particular (7)).
In respect of Particular (1), the appellant asserts that the evidence sought to be given in the affidavit was ‘essential’ to a ground she wished to advance. This however was not a relevant consideration in the FCCA determining its admissibility under the Evidence Act.
The stated purpose of the appellant’s reliance on the Rostomashvili affidavit was to support the appellant’s contention that the AAT’s decision was affected by jurisdictional error because material mistranslations had occurred during the AAT hearing. The Minister objected to the affidavit, on a number of bases, including that there was no evidence of the deponent’s proficiency or capacity to translate between the English and Georgian languages, and that the evidence on its face had been prepared under instruction by the appellant to prepare a transcript of ‘any material errors, misinterpretations and/or omissions’ evident in the audio recording’, there being a concern with the independence of the deponent to give the evidence she was purporting to give. The Minister also contended that only a part of the audio recording had been translated, making it difficult for the Court to achieve a contextual understanding of what occurred at the AAT hearing. Further, Ms Rostomashvili deposed that ‘I respectfully submit that the transcript shows systematic as well as some material deficiencies in the interpretation of the evidence given by the Applicant’.
Notwithstanding the arguments raised by the appellant through her counsel before the primary judge (which are identified and addressed in the FCCA’s reasons for judgment), the primary judge properly directed himself to the admissibility requirements of the Evidence Act: FCCA reasons at [74]. The appellant through her counsel submitted initially that the Rostomashvili affidavit was admissible as a lay opinion, thus coming within an exception (s 78) to the opinion rule in s 76 of the Evidence Act: FCCA reasons at [76].
The complaint in Particular (2) appears to be a reference to the appellant’s attempt at the hearing before Judge Nicholls on 12 March 2019 to give evidence from the bar table concerning the lack of Georgian interpreters in Australia: see transcript of the FCCA hearing on 12 March 2019. The appellant had sought to give this evidence by reference to a file note from the AAT from 2015. The primary judge was not prepared to accept evidence of this nature, in particular noting the file note was four years old. In any event, even if there had been evidence before the Court of the difficulties of locating qualified Georgian interpreters, this again would not have been relevant to the question of the admissibility of the Rostomashvili affidavit. The admissibility of evidence is not a weighing exercise.
The complaint referred to in Particular (3) challenges the primary judge’s rejection of the Rostomashvili affidavit under s 79 of the Evidence Act. Section 79 of the Evidence Act provides an exception to the ‘opinion rule’ under s 76. In order to come within this exception the opinion needs to be wholly or substantially based upon the witnesses’ specialised knowledge based on training, study or experience. These matters must themselves be proved. As Gleeson CJ said in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [39]:
[b]y directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, [s 79] requires that the opinion is presented in a form which makes it possible to answer that question.
Further, as Heydon JA stated in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]:
the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.
Whilst in most cases a witness seeking to express a ‘specialised knowledge’ based on his or her ‘training, study or experience’, being an opinion ‘wholly or substantially based’ on that ‘specialised knowledge’ will require ‘little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered’ (Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, [37]), the Rostomashvili affidavit was entirely deficient in this respect. The appellant asserted only very late during the hearing on 12 March 2019 that Ms Rostomashvili was an ‘expert’, and sought leave (which was refused) apparently to have her solicitor give evidence on this point. The appellant had principally advanced that Ms Rostomashvili sought to give a lay opinion within the exception in s 78 of the Evidence Act. It is unclear what evidence the solicitor could possibly have given on the question of the expertise of Ms Rostomashvili. On the basis of the evidence, the primary judge was correct to conclude that the witness was not an ‘expert’: FCCA reasons at [82]. The primary judge was supported in this finding by the fact that on the basis of the proposed affidavit evidence from the witness, her evidence as to translation errors was to be given in order to support the appellant’s contention before the Court that such errors had been made. However, an expert witness is not an advocate for a party, and has an overriding duty to assist the Court: see r 15.07 of the Federal Circuit Court Rules 2001 (Cth) and the Federal Court of Australia Practice Note: Expert Evidence Practice Note (GPM-EXPT).
The complaint referred to in Particular (4) is that the Court erred in ‘not allowing’ Ms Rostomashvili to give oral evidence to address any difficulties. To the extent it might be asserted that the Court should have taken oral evidence in chief from the witness to substantiate, for instance, an exception under s 79 of the Evidence Act, no such application was made on behalf of the appellant. The highest it was put by counsel for the appellant was that it was ‘available’ for the primary judge to ‘make Nadia (sic) give evidence-in-chief’. Whilst the primary judge does not in his reasons for judgment expressly consider whether it was available to him to permit the witness to give oral evidence in chief, the transcript reveals that the primary judge was not inclined to give the appellant more time to prepare further evidence in circumstances where adjournments had been given in the past specifically to facilitate this, and the appellant had been legally represented. No error is identified in the primary judge’s reasoning in this respect.
Further, at the hearing on 12 March 2019 the appellant’s counsel pressed the admissibility of the affidavit on the basis that the witness was available to be cross-examined, but that the Minister did not seek to cross-examine her. However, the availability of cross-examination was not a remedy to the inherent inadmissibility of evidence. There is no merit to this particular.
Finally, the complaint referred to above at Particular (7) is a broad complaint of a denial by the Court of an opportunity for the appellant to tender evidence of translation errors. This complaint is repetitive of the above complaints, and connected in particular with the complaint in Particular (4). The Court having permitted the appellant a number of adjournments to enable her the opportunity to prepare her case, and noting that she had the assistance of counsel and a solicitor, it was not incumbent on the Court continually to grant adjournments to the appellant to enable her to put her best case, consistently with the principles set out in Aon Risk Services Australian Ltd v Australian National University [2009] HCA 27; 239 CLR 175.
It should also be noted that an additional difficulty with the focus on the primary judge’s ruling on the admissibility of the Rostomashvili affidavit is that it could only have supported what had been the first ground of the amended application before the FCCA. The appellant, through her counsel, abandoned the first ground: FCCA reasons at [106]. The appellant does not articulate before this Court how any asserted errors by the primary judge in relation to the Rostomashvili affidavit could materially have affected the orders made dismissing the application.
Turning to the fifth and sixth particulars of the notice of appeal, the fifth particular asserts that the FCCA erred in misconstruing or misapplying s 424AA and s 424A of the Act. This would appear to be a challenge to his the primary judge’s determination of the second ground of review below: FCCA reasons at [242]-[254]. There is no error in the primary judge’s reasoning. The AAT relied on mere inconsistencies in the content of the appellant’s protection visa application compared with an earlier student visa application in relation to her work history. The primary judge correctly observed that s 424A(1) is not engaged by reliance by the AAT on mere inconsistencies, citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123): FCCA reasons at [249].
To the extent that the ground below was based on the AAT’s purported engagement of s 424AA to invite the appellant orally to comment on inconsistencies in her evidence, the primary judge was correct, by reference to the transcript evidence before the Court, to find that the AAT had properly engaged the procedure under s 424AA in relation to the inconsistencies between the applicant’s protection visa application and student visa application, even assuming (contrary to his Honour’s primary conclusion) that there was any engagement of s 424A(1) in the first place. No error by the primary judge is identified: see generally SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415.
In respect of the sixth particular, the appellant asserts that the AAT failed to engage in an active intellectual process before disregarding corroborating evidence. Absent particulars, it is unclear what this ground means. It does not identify any error by the primary judge, or any jurisdictional error by the AAT.
The notice of appeal then includes four grounds which are simply repetitive of grounds 1, 3, 4 and 6 of the amended application in the Court below. As stated above, the first ground below ultimately was not pressed by the appellant, and the appellant should be refused leave now to raise it on appeal. Otherwise, the primary judge addressed grounds 3, 4 and 6.
The grounds do not purport to identify error in the primary judge’s findings or conclusions. The role of this Court is not to re-examine the AAT’s decision standing in the shoes of the FCCA exercising original jurisdiction under s 476 of the Act. The repetition in the notice of appeal of grounds before the FCCA does not properly invoke the appellate jurisdiction of this Court.
Consideration and determination
As Mr Johnson (who appeared for the Minister) correctly pointed out, there is a degree of circularity in significance of ground 1 not being pressed below. It was not pressed below because of the rejection of the Rostomashvili affidavit. Nevertheless, leave would be required to agitate ground 1 on the appeal.
I would not have granted such leave if it had been sought because the ground would be doomed to fail in the absence of evidence to support it. That is because there is no appealable error in respect of the primary judge’s ruling on the admissibility of the Rostomashvili affidavit.
The Court is not lacking in sympathy for the appellant’s predicament. It is understandable that she feels highly frustrated by the events that have occurred, which have cost her money and have produced an outcome which she regards as most unsatisfactory. That is not to say, however, that the primary judge erred in not admitting what the appellant views as the best evidence that she was able to obtain to make good her complaints of mistranslation in the AAT. The difficulty remains, however, that that evidence was not in an admissible form.
It is a matter for the Minister and those who advise him to determine whether there are sufficient circumstances to warrant the exercise of non-compellable powers in the appellant’s case.
As mentioned, I accept all the submissions set out in the Minister’s written outline of submissions, as described above. I respectfully adopt those submissions as providing the reasons why the appeal must be dismissed.
Conclusion
For these reasons, the appeal will be dismissed, with costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 6 February 2020
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