BYP18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 678
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 678
File number(s): SYG 1086 of 2018 Judgment of: JUDGE LAING Date of judgment: 1 August 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – where the IAA found that claims made by the applicant were internally incoherent – where this finding resulted from a fundamental misunderstanding of the applicant’s claims due to interpretation error – application succeeds Legislation: Migration Act 1958 (Cth) pt 7AA, ss 473DC, 473DD Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177
ETA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 512
GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
W148/00A v Minister [2001] FCA 679; (2001) 185 ALR 703
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 18 July 2024 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Counsel for the First Respondent: Ms N Maddocks Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1086 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYP18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 16 March 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 8 February 2018 according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA). By that decision, the IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Iraq who arrived in Australia in 2013 as an unauthorised maritime arrival.
On 22 November 2016, the applicant applied for the protection visa that is the subject of the current proceedings.
The Delegate refused the application on 8 February 2018. The matter was referred to the IAA for review.
On 16 March 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA summarised the background to the matter and the material before it at [1]-[6] of its decision. The IAA observed at [5] that it had found that certain country information submitted on behalf of the applicant did not meet the requirements for consideration under s 473DD of the Migration Act 1958 (Cth) (Act).
The IAA accepted certain personal information regarding the applicant’s background, family situation and identity (at [7]). At [8]-[12], the IAA made the following findings (footnotes omitted):
8.The applicant has consistently stated that he is Bidoon, and this is consistent with his background and his family being deported from Kuwait in the 1990s.1 At his arrival interview in June 2013 he stated that he was also referred to in his community as “Bidoon” rather than by his name and this caused him to become isolated and suffer loss of identity. He was melting down. If he were to return to Iraq he would have a nervous breakdown. He was taking it out on his children and did not want them to go through what he went through. At the PV interview the delegate asked for more detail on the applicant’s persecution due to being from Kuwait. He said that a man refused to marry his daughter because she was from a Bidoon family, also he was hit once and showed the delegate a scar on his head. I accept that the applicant experienced societal discrimination due to his “gulf” accent and dialect and has been the subject of name-calling. It is stated in the delegate’s decision that the applicant had claimed that his son was bashed at school. This is not the case. At the PV interview the applicant states that if his son beat another child at school then tribal law provided that he (the applicant) would have to pay, however as the applicant was not a member of a tribe he would have no equivalent redress if another child beat his son.
9.The applicant’s central claim for protection is that he is unable to return to Iraq as his life has been threatened by members of [an identified tribe (Tribe)]. The applicant did not make this claim at either of his interviews in 2013. At his PV interview the applicant claimed that he was told by the officer conducting the interview to just provide a summary of his claims, as he would be given the opportunity to give all the details another time. In relation however to why he left Iraq, the audio record of the 16 June 2013 interview indicates that the applicant talked in depth for nearly eight minutes about his experiences of persecution as a Kuwaiti in Iraq. He was then asked whether there were any other reasons for leaving Iraq and he replied that there was “nothing more than this reason”. In his written submission to the delegate of 5 February 2018 the applicant claims that, prior to the start of the recording, he was informed by the Departmental officer not to talk about his protection claims. I do not accept that he would have been given such an instruction and reject this claim. He further stated in the June 2013 interview that he started planning his departure from Iraq 12 months before he left, which would have been January 2012.
10.The applicant stated in his June 2013 interview that he had been detained for maybe two to three days and that this “involved a dispute during land transfer between a farmer and myself”. The applicant made no mention of any ongoing dispute between himself and the “farmer” or members of the farmer’s tribe. The applicant has provided a contract of sale dated [redacted] and I accept that this is a genuine document. The applicant’s evidence regarding the legal issues leading to the alleged threats by the vendor and his tribe has however been contradictory. In his statutory declaration (at para.8) he states that the contract was worded in a manner which meant that he did not in fact own the land that he had paid [an amount] for: “I did not know about this term in the contract, because I signed it quickly, because it means that there is no legal obligation to transfer the land to me, [the Vendor] did not transfer the title to me although he said that he did”. The other man who “purchased” the land in 2011, however, showed the applicant his own contract and it did not include the term in question, which meant that his purchase of the land in 2011 was valid. At para.10 of the statutory declaration, however, the applicant states that he went to see the vendor and the vendor accused him of forging the agreement to purchase the land. Had the wording of the contract meant that the applicant in fact had no legal right to the land, there would have been no reason for the vendor to make such an accusation. The applicant states that the vendor then made a complaint to the police and had him charged with intent to get money by deception. Again, this is not consistent with the claim that the vendor was under no legal obligation to transfer the land to the applicant.
11.In his PV interview the applicant no longer claimed that the wording of the contract was an issue or that he did not in fact have any legal entitlement to the land. He has maintained that the vendor took legal action against him for fraud and he (the applicant) was sentenced to a period of imprisonment. He has however provided a document dated [redacted] which purports to be a request for his release on bail and a decision by a judge that he be released “on bail” of 5 million Dinars. This is not consistent with his statement that he had already been sentenced to a term of imprisonment. At the PV interview the delegate sought to clarify how the vendor, who was allegedly the plaintiff in the fraud matter, had ended up being imprisoned himself. The applicant responded that if the matter had been heard by a local judge the vendor wouldn’t have gone to prison due to his influence. He then stated that “I hired a lawyer, I brought him to court because of his thumbprint” (which was made on the contract of sale). The applicant had not previously claimed at any point that he had instigated legal proceedings against the vendor. On the contrary, he states in his statutory declaration that following the vendor’s legal action “the judge was convinced that [the vendor] was an evil man, therefore he imprisoned him, he also dismissed an application to bail him out”. I do not accept that such a sequence of events is plausible.
12.Due to the recency of the claim, the internal inconsistencies and contradictions in the applicant’s evidence, as well as the implausibility of much of his evidence, I do not accept that the applicant was involved in a legal dispute with a senior member of the [the Tribe] or any other tribe, that he was in any way responsible for the imprisonment of that person, or that members of the tribe sought to harm the applicant due to the imprisonment. While I accept that the applicant purchased a piece of land in 2007 and there was subsequently a minor dispute relating to that land, I do not accept that there were any ongoing implications related to the purchase or the dispute. I conclude that this claim is a fabrication made to further the applicant’s claims for protection. It follows that I also do not accept that the applicant’s family has been harassed by members of the [Tribe] since the applicant’s departure from Iraq.
Although the IAA accepted that the applicant may have been subjected to a low level of discrimination due to his Bidoon identity, the IAA was not satisfied that the applicant would face a real chance of serious or significant harm on this basis if he returned to Iraq (at [15] and [22]). Based upon country information and the applicant’s personal circumstances, the IAA was also not satisfied that the applicant would face a real chance of harm as a Shia Muslim, due to sectarian violence, or as an unsuccessful asylum seeker who had spent time in Australia (at [16]-[18]).
On the basis of the above, the IAA found that the applicant did not meet the criteria for the protection visa. Accordingly, the IAA affirmed the Delegate’s decision (at [13]-[23]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 18 April 2018. He ultimately relied upon the following grounds:
1.The Immigration Assessment Authority (“IAA”), in its decision dated 16 March 2018, found at [10] that “the applicant’s evidence regarding the legal issues leading to the alleged threats by the vendor and his tribe has… been contradictory” and part of his evidence was “inconsistent with” other parts of his evidence. The IAA at [12] relied on the alleged “internal inconsistencies and contradictions” to reject the applicant’s central claim. The applicant’s evidence was not “contradictory” or “inconsistent”. The IAA erred in making these findings and rejecting the applicant’s central claim on this basis.
2.The IAA at [11] stated that a document dated 22 March 2012 was “not consistent with [the applicant’s] statement [in his PV interview] that he had already been sentenced to a term of imprisonment”. The IAA at [12] relied on the alleged “internal inconsistencies” to reject the applicant’s central claim. However, the applicant never stated he had been sentenced to a term of imprisonment. There was no inconsistency between the document dated 22 March 2012 and the applicant’s evidence in his PV interview. The interpreter at the PV interview erroneously translated an answer given by the applicant as “they sentenced me”. But the applicant did not actually say he was “sentenced”. In the circumstances, with reference to DVO16 v Minister (2012) 273 CLR 177:
a)The IAA unreasonably failed to exercise its powers under s 473DC of the Migration Act to give the applicant an opportunity to comment, or obtain further evidence from the applicant, before relying on a single word stated by the interpreter at the PV interview (ie “sentenced”) which was inconsistent with all other evidence given by the applicant.
b)The IAA failed to assess the claims to protection in fact made by the applicant.
For the above reasons, the IAA erred in making the finding of inconsistency and rejecting the applicant’s central claim on this basis.
3.The IAA at [11], after discussing aspects of the applicant’s evidence and claims, did “not accept that such sequence of events is plausible. The IAA at [12] relied on the alleged “implausibility of much of [the applicant’s] evidence” to reject the applicant’s central claim. The sequence of events was not implausible. The IAA erred in finding that the sequence of events was not plausible and rejecting the applicant’s central claim on this basis.
Ground 1
Ground 1 contended that the IAA erred in finding the applicant’s evidence to be “contradictory” and “inconsistent”.
The ground focused upon the IAA’s reasoning at [10] that “the applicant’s evidence regarding the legal issues leading to the alleged threats by the vendor and his tribe has ... been contradictory”. The applicant contended that his evidence in this regard had not been contradictory. He contended that the IAA had erred by believing that he had claimed in [9] of his statutory declaration that he had accepted that the vendor was under no legal obligation to transfer the land to him. However, it was contended that the applicant never made this claim. When the applicant’s claims were considered in context, including by reference to the explanations given at interview, it was contended that the applicant’s claims were that:
(a)the vendor’s first response to the issue was that he was under no legal obligation to transfer the land to the applicant;
(b)however, the applicant did not accept this, claiming that he “told him that the agreement that [he had] refer[red] to him as the vendor”; and
(c)the vendor then switched to a second response, suggesting that the applicant “must have forged this document” and accusing the applicant “of forging an agreement to purchase his land”.
The relevant part of the statutory declaration reads as follows:
9-In 2007, I purchased a piece of agricultural land in [a] province from someone called [redacted], I paid [redacted] as consideration for the sale of land, [redacted] took me to real estate agent where he and I signed an agreement for the sale of land, this agreement promise to protect my rights against the other people and the other tribes while it does not protect my interests against the government, I did not know about this term in the contract, because I signed it quickly, because it means that there is no legal obligation to transfer the land to me, [redacted] did not transfer the title to me although he said that he did, the land value was expanding by time, it was 7000 square meters which was rezoned in January 2012 into "residential", which meant that I should achieve great profits as result of having such land in that area, in the same time , another person with the name [redacted] came and disputed my ownership of the land saying that [the first person] sold him this land and that he owned it and that I should not do anything to the land, he produced me with an agreement which was dated in 2011 between him and [the first person] , his contract refer to a term which is different to the term of the contract that I have, his contract says that the first party commit to protect the rights of the purchaser against everyone else (including the government), I was shocked that someone else is claiming the rights for a land that I purchased before, at that time, a quarrel started between us.
10-after that I went to see the original vendor ([redacted]), I told him about what the other person said to me, at that time I was shocked that [redacted] said that he did not sell me the land and that all what he did was leasing the land to me, I told him that the agreement that I have refer to him as the vendor , he replied that I must have forged this document, he accused me of forging an agreement to purchase his land, he moreover told the police that I was fraudster, the police arrested me and charged with defrauding an agreement with intent to get money by deception, the judge ordered to imprison me, however I was released after 2 days of imprisonment, as I was bailed out at that time.
I accept that, when read in context (and appreciating that the document does not appear to be expressed in perfectly fluent English), the applicant’s construction of his evidence is the more likely one. The statutory declaration appears to have been explaining (in somewhat awkward fashion) that the vendor had claimed there was no obligation to transfer the land by reference to a particular clause. However, it is apparent that the applicant did not accept this, despite the language he had used recounting the vendor’s position. The applicant claimed to have demonstrated this by telling the vendor that the agreement referred to him as the “vendor”. The applicant claimed that the vendor then contended that the agreement was fraudulent, with the consequences that ensued.
The question, though, is not what the Court finds to be the most likely reading of this evidence. The question is whether the IAA’s interpretation was relevantly open to it on the material before it.
If this ground were the only ground available to the applicant, I may have concluded that it was. I accept that the IAA’s interpretation of this evidence was not particularly generous. However, there was some tension in the precise language used by the applicant in his statutory declaration. On the one hand, he stated at [9]: “because it means that there is no legal obligation to transfer the land to me, [the vendor] did not transfer the title to me although he said that he did”. The applicant then stated at [10] that the vendor accused him of forging the agreement after the applicant told him that it referred to him as “the vendor”. On one interpretation, there was some tension between these two concepts. If the agreement was uncontroversially ineffective, there would have been no need for the allegation of forgery nor what was claimed to have followed it.
However, the IAA’s consideration at [9] that the applicant had been claiming that the agreement was uncontroversially ineffective required adoption of a fairly literal, isolated interpretation of two sentences in a statutory declaration that was expressed in questionable English. The applicant submitted that the IAA did not adequately or rationally assess the significance that ought to be attributed to this “inconsistency” in context: see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [22]-[28] per Kenny and Griffiths J, and Mortimer J (as her Honour then was). Had this construction been solely relied upon by the IAA in rejecting the applicant’s claims, on the basis that they were internally implausible and contradictory, then the applicant’s submission about irrational weight may have had more force. However, the IAA’s concern in this regard has to be read in the context of another apparent internal incoherence in the applicant’s story. This concerned what was understood by the IAA to have been the applicant’s claim that he had been “sentenced to a term of imprisonment” for fraud before he claimed to have been released on “bail”.
Viewed within the context of this other issue, the IAA’s view of the statutory declaration as being contradictory, rather than explicable by reference to language difficulties, is more understandable. This is because the IAA was concerned for a second reason that the applicant appeared to be unable to tell a coherent story in relation to his claims. However, as will be considered under ground 2, the problem with this second inconsistency is that it was premised upon erroneous interpretation of the applicant’s claims at his protection visa interview (PV interview).
Ground 2
Paragraph 11 of the IAA’s decision is set out above. In that paragraph, the IAA considered:
11.… He has maintained that the vendor took legal action against him for fraud and he (the applicant) was sentenced to a period of imprisonment. He has however provided a document dated [redacted] which purports to be a request for his release on bail and a decision by a judge that he be released “on bail” of 5 million Dinars. This is not consistent with his statement that he had already been sentenced to a term of imprisonment.
This apparently followed from what was said at the PV interview. The transcript of that interview evidences that the following was communicated through the interpreter:
“… And at the end I became accused that I (interpreter: trying to get the right word)
…
yes, that’s correct a fraudulent contract. And according to that, they actually sentenced me to, because they accused me with it, and according to that decision I was imprisoned. After two days in the prison, a friend of my father paid a bond of five million Iraqi currency, and I was released, and in order to put a lawyer and to continue with my case, to prove that I am not a liar and that whatever they accused me of. …”
(emphasis added)
The IAA considered that the applicant’s claims in this regard were internally contradictory. This was because the IAA considered that the applicant had claimed that he was “sentenced to a period of imprisonment”, thus indicating that the proceedings against him had been finalised with a prison sentence. The applicant had then claimed that he had been released on a “bond” or “bail” two days later, suggesting that the proceedings against him were ongoing at the time.
However, an affidavit of Rita Nehme (a NAATI accredited interpreter) affirmed on 31 May 2024 evidences that what the applicant actually said was:
At the end, at the court it turned out to be fraud and scam, they accused me of a case of fraud and scam and that I was doing a fraud on [name redacted].
…
They accused me that the contract was fabricated. Accordingly, I was charged based on a section of the law of fraud and swindle and I was imprisoned. After two days in prison, my father’s friend paid a bond of five million Iraqi and I was released on bail to go outside, so I can appoint a lawyer and continue my case to prove that I am not a swindler.
(emphasis added)
This did not contain the “inconsistency” relied upon by the IAA. That is because on this account, the applicant did not claim that he had been “sentenced” to a period of imprisonment before being released on “bail” shortly thereafter. Rather, the applicant claimed that he had been released on bail after being “charged” with an offence, which allowed him to defend himself from the charges that had been made against him.
The Minister accepted that there was an interpretation error. However, the Minister did not accept that this resulted in jurisdictional error.
Both parties relied upon the case of DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 (DVO16). In that case, Kiefel CJ, Gageler J (as his Honour then was), Gordon and Steward JJ considered at [19]-[23] two potential situations in which translation errors in a recording of a protection interview provided to the IAA by the Secretary as part of the review material could result in non-compliance with any condition expressed in or implied into Pt 7AA of the Act:
19The first arises from the condition of reasonableness implied into the procedural duty of the Authority to review the referred decision by considering the review material and implied as well into the procedural powers of the Authority to get new information at an interview with the referred applicant and then to consider that new information if the Authority is satisfied that specified conditions are met42…
21Whether or not the decision of the Authority was reached in breach of the reasonableness condition implied into its procedural duty and powers would turn, on either analysis, on whether the decision-making course in fact adopted by the Authority in the circumstances known to it45 was open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, cognisant of its powers to get new information in an interview with the referred applicant and to consider that information, and mindful of the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both "efficient" and "quick"46.
22The second way in which translation errors in a recording of a protection interview provided to the Authority by the Secretary as part of the review material could result in non-compliance with Pt 7AA is through non-compliance with the overriding duty of the Authority to "review" the referred decision47. That overriding duty of the Authority is to engage in a de novo assessment of the merits of the decision in fact made by the delegate: "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"48. The Authority's de novo assessment of the merits is not of a lesser standard than that required of the delegate in making the referred decision. No less than the delegate in making the referred decision, the Authority in reviewing the referred decision is required to assess the claims to protection in fact raised by the referred applicant against the criteria for the grant of a protection visa in order to determine whether or not to be satisfied that those criteria have been met.
23Just as mistranslation of words spoken during a protection interview has the potential to result in the delegate failing to understand and therefore to consider the substance of a claim in fact raised by the applicant in his or her own language, so the same mistranslation has the potential to result in the Authority failing to understand and therefore to consider the substance of the same claim. Mistranslation in that way has the potential to result in the Authority failing to discharge the core element of its overriding duty, namely to assess the claims to protection in fact made by the applicant against the criteria for the grant of the visa in determining for itself whether or not it is satisfied that the criteria for the grant of a visa have been met.
That reasoning followed consideration of the particular statutory framework under Part 7AA of the Act and, in particular, the limited form of review that it contemplates in relation to the IAA: see DVO16 at [9]-[17].
Also of some apparent relevance is what was said by Collier, Rangiah and Derrington JJ in GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 (GOK18) at [56]-[57]:
56… To the extent there was an erroneous translation, it was irrelevant to the IAA’s determination.
57That conclusion effectively renders it unnecessary to determine whether a mistranslation error leading to a finding that an applicant lacked credibility could fall within the type of error referred to by the High Court in DVO16. The Minister submitted that it could not, however, that would seem to be a rather too narrow reading of that decision. As the High Court observed, the core element of the IAA’s duty is to assess the claims to protection in fact made against the criteria for the grant of the visa in determining whether it is satisfied the criteria have been met. If a mistranslation has the consequence that the applicant’s credibility is destroyed such that his evidence is disbelieved, it might be said that the IAA will be prevented from performing its duty just as much as if, as a result of the mistranslation, the claim was not advanced at all.
The applicant contended that each of the two potential errors considered in DVO16 occurred in the present case.
In relation to the first, the applicant contended that the IAA unreasonably failed to exercise its powers under s 473DC of the Act to give him an opportunity to comment, or to obtain further evidence from him, before relying upon a single word stated by the interpreter at the PV interview (“sentenced”) which was inconsistent with all other evidence given by him. This, it was submitted, was in circumstances where the IAA member:
(a)would, or ought to, have been aware at the time of preparing the decision of a real possibility that the applicant did not say that he was “sentenced” and that the interpreter mistranslated the word or term actually stated by the applicant;
(b)was aware that the issue of whether the applicant was “sentenced” was not explored by the Delegate with the applicant at interview, and was not identified by the Delegate in their decision such that the applicant was not on notice of the issue;
(c)was aware that the interviewer at the PV interview understood the applicant as having said that he “went to prison for two days and [was] released on bail”;
(d)was “cognisant of [the] power to get new information” (DVO16 at [21]) by exercising the power under s 473DC of the Act; and
(e)was aware that they could have exercised the power within a short time frame, in particular if they chose to put their concern to the applicant in writing and invite the applicant to comment.
The applicant referred generally to ETA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 512 (ETA17), in which Judge Goodchild accepted a similar argument. However, that was a different case involving different circumstances. As the applicant accepted, each case must turn on its own circumstances. Legal unreasonableness is not to be determined simply by comparing the facts of one case to another: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [42] per Allsop CJ, Robertson J and Mortimer J (as her Honour then was).
I accept the Minister’s submissions regarding why this aspect of the ground is unable to succeed.
Unlike what was found in ETA17, I am not persuaded that in this case the error was sufficiently “suggested” by the review material. This is not a case in which the IAA expressly considered a potential issue regarding the quality of interpretation. This is notwithstanding my acceptance that the interpretation does not appear to have involved, at all times, perfectly clear English. This did not mean, on the material before the IAA, that it would have necessarily been apparent that the applicant had been unable to communicate the substance of his claims.
Although there was certainly a possibility of misinterpretation regarding the word “sentenced”, another possibility was that the applicant had been unable to tell a coherent narrative because his claims were untrue. This possibility was reinforced by what the IAA regarded as the other internal inconsistency in the applicant’s claims, which is considered under ground 1. Although, as considered under ground 1, that finding of inconsistency was based upon a somewhat unlikely interpretation, when considered in relation to the additional issue of the applicant’s claims regarding sentencing and bail, these issues collectively gave rise to an available impression that the applicant was unable to tell a coherent story. This was in circumstances where it would have been expected that different interpreters had been used for the statutory declaration and the PV interview. This is so notwithstanding that the applicant’s evidence and claims were generally consistent in a number of other respects. It is notwithstanding other parts of the evidence (such as the applicant’s protection visa application form) indicating that the applicant did not claim to have been convicted of any crime.
The mistranslated narrative was also recorded in the Delegate’s decision (at CB 151-152). The Delegate recorded what he understood to be the applicant’s statement that “he was given a prison sentence by a local court judge following these allegation[s] but he was released on bail two days later”. The applicant’s representatives did not challenge this understanding in submissions to the IAA. I accept that there is a limit to how much weight ought to be placed upon this, in circumstances where the Delegate did not take issue with this part of the evidence in the manner that the IAA did. However, I accept that this formed a relevant part of the factual matrix before the IAA tending against the argument of unreasonableness.
Considering the evidence before me in its totality, I am not persuaded that it has been demonstrated that the IAA unreasonably failed to exercise its powers under s 473DC of the Act. This is having regard to the particular statutory scheme under Part 7AA of the Act, which significantly limits the IAA’s procedural fairness obligations and restricts its ability to consider new information.
This aspect of ground 2 is therefore unable to succeed.
The question, then, is whether the mistranslation resulted in the IAA failing to understand and therefore consider the substance of the applicant’s claims.
It is not entirely clear on the authorities what level of abstraction, or granularity, is involved in addressing this question. The High Court’s reference to the “substance” of an applicant’s claims suggests that what is contemplated is not every precise detail of the claims in question. However, what level of abstraction is too far? The applicant claimed to face harm from a neighbouring tribe. If that is the level of abstraction required, then the substance of the applicant’s claims was considered by the IAA. However, that level of abstraction, without at least some level of content regarding the basis of the claim, has the potential to render the task meaningless. I therefore do not consider it likely that this is what was meant in DVO16 when referring to the “substance” of an applicant’s claims. I respectfully agree with what was said by the Full Court in GOK18, namely that if a “mistranslation has the consequence that the applicant’s credibility is destroyed” then it may be said that the IAA was “prevented from performing its duty just as much as if, as a result of the mistranslation, the claim was not advanced at all”.
The most likely answer to the level of abstraction required is that it must depend on the particular case.
The Minister submitted that, in the present case, the applicant had given other evidence suggesting that he had been sentenced to a period of imprisonment. The Minister observed that the applicant had claimed in his statutory declaration that he had been arrested and charged, and that “the judge ordered to imprison me” (CB 82). This part of the statutory declaration is set out above. However, the context of this sentence in the statutory declaration made clear that the applicant was communicating that he had been ordered to remain in prison pending the proceedings against him, and subject to release on bail. This is not the internal contradiction that was identified by the IAA. Rather, the IAA was concerned that the applicant had claimed that he had been sentenced to a period of imprisonment (thus indicating the conclusion of the proceedings) before being released on bail. That claim was never made by the applicant.
In the present case, the IAA was concerned that the applicant’s claims were internally incoherent. This formed a central, if not the central, basis for the IAA’s rejection of those claims. There were two essential internal inconsistencies that were identified by the IAA. The first, for the reasons given above, was somewhat tenuous when considered alone.
The IAA also took into account at [12] the “recency of the claim” as a matter undermining its credibility. However, as was observed by the applicant, this issue may have been explicable (at least in part) by the fact that he had claimed certain threats had occurred after the interviews in which the IAA had been concerned that the claim had not been advanced (CB 5, 13 and 82[14]). Although the applicant claimed that some threats had been made before he left Iraq, the subsequent threats were potentially significant in that they indicated ongoing interest in harming the applicant despite his departure. The claimed situation had certainly escalated by what was said to have occurred after the early interviews. There was, therefore, potentially a limit to how much weight could have been expected to have been placed upon this issue by the IAA. This was in circumstances where the claim appears to have been identified at least at some level of generality at the 2013 entry interview, in which the applicant had referred to being arrested or detained due to a “dispute during land transfer”. The applicant also appears to have suggested during that interview that he “could not tell… briefly” what had happened to him, and his claims regarding the dispute potentially fell within his broader general claims of isolation and vulnerability in Iraq due to his family’s lack of tribal affiliation.
The IAA lastly relied upon what it understood to be an inconsistency regarding whether the applicant had “instigated legal proceedings against the vendor”. For reasons considered under ground 3, this reasoning was also problematic.
Having regard to the above, what was found to be the internal incoherence of the applicant’s claims of what had happened to him in relation to sentencing and then bail assumed some significance in the IAA’s reasoning. Within this context, I accept that what the applicant claimed had happened to him in this regard, as the situation giving rise to the claimed threat of harm, is properly identifiable as the “substance” of the applicant’s claims.
The applicant had claimed that he was arrested and charged after a false claim of fraud had been made against him by the vendor. However, the applicant claimed that he was released after two days on bail and subsequently vindicated, with the vendor being imprisoned instead. In this manner, the applicant had claimed that the vendor’s criminal allegations against him had entirely failed, rather spectacularly, with the vendor rather than the applicant being seen by the judge as the dishonest party and sentenced to a lengthy period of imprisonment. This was the situation that was said to have resulted in threats being made against the applicant, which formed the basis of the applicant’s protection claims.
The mistranslation meant that that the applicant’s claims in this regard were not considered in the form that they were made. Instead, the IAA misunderstood that the applicant had claimed that he was “sentenced to a term of imprisonment”, but then was inexplicably released “on bail” despite the apparent conclusion of the proceedings against him. The IAA accordingly found that the applicant’s claims were internally incoherent and rejected them on this basis. The IAA’s rejection of the applicant’s claims, therefore, was based upon a fundamental misunderstanding of them. I accept the applicant’s submission that this resulted in the second category of error considered in DVO16.
Ground 3
In [11], the IAA further reasoned:
11.… At the PV interview the delegate sought to clarify how the vendor, who was allegedly the plaintiff in the fraud matter, had ended up being imprisoned himself. The applicant responded that if the matter had been heard by a local judge the vendor wouldn’t have gone to prison due to his influence. He then stated that “I hired a lawyer, I brought him to court because of his thumbprint” (which was made on the contract of sale). The applicant had not previously claimed at any point that he had instigated legal proceedings against the vendor. On the contrary, he states in his statutory declaration that following the vendor’s legal action “the judge was convinced that [the vendor] was an evil man, therefore he imprisoned him, he also dismissed an application to bail him out”. I do not accept that such a sequence of events is plausible.
The applicant submitted that there were three issues with this part of the IAA’s reasons.
The first was that the IAA stated that the applicant said at interview “... I brought him to court because of his thumbprint”. However, this quotation did not appear in the transcript of the interview.
The second issue identified in the applicant’s written submissions was contended to be as follows:
54.Second, the IAA then stated that “The applicant had not previously claimed at any point that he had instigated legal proceedings against the vendor”. But, as recorded at page 13.6 of the transcript, based on the interpreter’s English translation of the applicant’s evidence, the applicant said that, in response to the vendor’s first response that the contract between them was an agreement to lease, and not to sell, the land, “I took a decision to go to the law, through the court”. Thus, the IAA was wrong in asserting, apparently focusing on an answer the IAA erroneously thought the applicant gave at page 19.2 of the transcript, that “The applicant had not previously claimed at any point that he had instigated legal proceedings against the vendor” – since the applicant said at page 13.6 of the transcript that he “took a decision to go to the law, through the court”.
The third issue was submitted to be the IAA’s non-acceptance that “such a sequence of events is plausible”. In this regard, the applicant relied upon what was said by Lee J in W148/00A v Minister [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [37]:
37… If material not inherently improbable is dismissed by a decision-maker, who relies upon no more than an assertion that the material is "implausible" or "not credible", such an act by the decision-maker may attract judicial review under the Act. That is to say, in some cases a bare statement by a decision-maker that a claimed circumstance is "not credible" or is "implausible" may cloak the failure of the decision-maker to address and resolve a material question of fact and thereby fail to take into account a relevant consideration; or suggest that the decision-making power was exercised arbitrarily or capriciously; or that a finding on a material question of fact was irrational, not being supported by probative material or logical grounds; any of which may demonstrate "jurisdictional error" and a failure to perform the decision-making function reposed in the decision-maker by the Act…
The first issue – the quotation
In relation to the first issue, I accept the Minister’s submission that jurisdictional error is not demonstrated in relation to the quotation, in circumstances where it was open to the IAA to have interpreted the substance of the applicant’s evidence in the manner expressed. This is so even though it was not accurately recorded as a quotation.
This is also despite it not being entirely clear on my reading of the evidence that this is what the applicant was in fact claiming in the PV interview. Although the applicant stated that he “took a decision to go to the law, through the court”, it is possible that he was referring to what was put forward on his behalf as part of the same proceedings that had been taken against him. His claims, although not expressed in perfect English, were essentially that the dispute had resulted in a number of issues including what had been put forward on his behalf in court, as well as the accusation of fraud that was levelled against him.
In any event, I accept that it was open to the IAA to have interpreted the applicant’s evidence at the PV interview as claiming, for the first time, that he had initiated proceedings against the vendor. It was also open to the IAA to have interpreted the applicant’s statutory declaration as indicating that the vendor had initiated the proceedings, although the focus of this account was not upon the commencement of proceedings but rather the claim that the applicant had been arrested because of what the vendor told the police in relation to the dispute.
Again, the IAA’s concern appears to have depended upon a somewhat ungenerous interpretation of evidence that did not appear to have been communicated in perfect English through the use of interpreters. It is unlikely to have motivated the IAA’s adverse credibility findings alone, independent of the IAA’s other concerns.
The second issue – whether the claim had been previously made at any point
In relation to the second issue, I accept the Minister’s submission that the IAA’s concern in this regard was that the applicant had not claimed at any point prior to the PV interview that he had instigated legal proceedings against the vendor. The focus of this concern, therefore, was not that the applicant hadn’t made the claim earlier in the interview, but that he had not made the claim prior to it. The IAA therefore did not relevantly err by overlooking or misunderstanding evidence that had been given earlier in the PV interview.
The third issue – the label of “implausibility”
In relation to the third issue, I accept the applicant’s submission that it is not entirely clear what sequence of events the IAA regarded as implausible (or why).
Whether it was the vendor or the applicant who commenced proceedings, it is unclear why the IAA would have considered it inherently implausible that as a result of those proceedings (and the reciprocal allegations of fraud they were said to have involved) the applicant may have been charged with fraud, with the vendor subsequently being found guilty and imprisoned after it was discovered that he was the perpetrator. Whilst there were reasons open to the IAA for doubting the applicant’s story, it is unclear what the IAA found inherently implausible about this “sequence”.
Ultimately, the reason that the basis of this finding is unclear is because it was unexplained by the IAA. It is not apparent, for example, that the IAA relied upon any personal knowledge or country information regarding the judicial system in Iraq. The IAA simply attached the label of “implausible” to the sequence of events claimed without any express consideration of the basis for this in its reasoning.
For the above reasons, the IAA’s reliance upon this finding is at best problematic. It was certainly incapable of supporting the IAA’s decision on its own.
Given my findings in relation to ground 2, it is unnecessary to determine whether or not this issue with the IAA’s reasoning was itself capable of demonstrating jurisdictional error. To my mind, this case is one that more appropriately falls to be determined by reference to the totality of the matters that have been considered above. For the reasons given under ground 2, those matters collectively support a finding of jurisdictional error in relation to the IAA’s decision.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 1 August 2024
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