BZAFB v Minister for Immigration - [2014] FCCA 2584

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFB v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2584

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether RRT’s decision affected by jurisdictional error – where RRT not properly understanding evidence from applicant as to him being beaten by Sri Lankan Army – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653
WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131

Applicant:

BZAFB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 608 of 2013

Judgment of:

Judge Jarrett

Hearing dates:

9 December 2013 and 6 August 2014

Date of Last Submission:

6 August 2014

Delivered at:

Brisbane

Delivered on:

17 November 2014

REPRESENTATION

The applicant appeared on his own behalf

Counsel for the first respondent:

Mr M Smith on 9 December, 2013
Ms S Given on 6 August, 2014

Solicitors for the first respondent:

Sparke Helmore Lawyers

The second respondent entered a submitting appearance.

ORDERS

A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 28 June, 2013.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine the application for review according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 608 of 2013

BZAFB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant, a citizen of Sri Lanka, arrived in Australia in June, 2012 as an irregular maritime arrival. On 4 August, 2012 the first respondent exercised his discretion under s.46A(2) of the Migration Act1958 (Cth) to permit the applicant to make an application for a protection visa. The applicant subsequently lodged an application for a protection visa.
On 18 October, 2012 a delegate of the first respondent refused to grant the applicant a protection visa. On 28 June, 2013 the second respondent affirmed the decision to refuse to grant the applicant a protection visa.
By his amended application filed on 28 November, 2013 the applicant seeks orders in the nature of certiorari, mandamus and injunction in relation to the second respondent’s decision.
The application was originally argued before me on 9 December, 2013. At that time the applicant represented himself and counsel appeared for the first respondent. The applicant had delivered written submissions in support of his amended application. It was apparent from those submissions that one of his arguments, not clearly articulated in his amended application, related to the interpreting of his statements at the hearings that took place before the second respondent. He had provided some partial transcripts of the relevant proceedings, but it became apparent that a full transcript was required. I made some directions about that and adjourned the application for further directions following the production of the transcripts.
Ultimately, the application was listed for further hearing on 6 August, 2014. The applicant again appeared and the first respondent appeared by counsel.

The applicant’s claims

The tribunal summarised the applicant’s factual claims as follows:
2. The applicant arrived in Australia by boat without a visa on 17 May 2012. He claims to be a Tamil fisherman from Udappu on the west coast of Sri Lanka. He left because he feared being harmed by the authorities who suspect all Tamils in his village had been involved with the Liberation Tigers of Tamil Eelam (“LTTE”) during the civil war. He had been harassed and abused by Sri Lankan Army (“SLA”) soldiers in Udappu and in the Vanni region when he worked there in the off-season; in 2010 he was taken to the SLA camp in Vannankulam and questioned by soldiers. In 2011 and 2012 he travelled to India and on his return police from the Criminal Investigation Division (“CID”) came to his home and questioned him about his travel. Since he came to Australia CID officers have been to his home and asked after him. He fears he would be persecuted if he goes back because he is Tamil and is suspected of being a LTTE supporter and would be imputed with an adverse political opinion because he left illegally by boat and claimed protection in Australia.
Analysed in terms of s.36 of the Act, the applicant claimed to have a genuine fear of persecution in Sri Lanka based on his Tamil ethnicity, his membership of particular social groups comprised of “Sri Lankan Tamils” and “Tamils from the north or east of Sri Lanka” and his imputed political opinion arising from his race and former residence in Udappu, a Tamil area. He also claimed that he had a genuine fear of persecution as a failed asylum seeker returning from Australia. He claimed that the Sinhalese crew of the vessel that brought him to Australia had taken photos of the Tamil passengers and threatened to harm the family of any person who informed on them to the Australian authorities.
The applicant’s claims were raised in his written protection visa application, his interview with the first respondent’s delegate on 2 September, 2012 and his statements and evidence at the hearings conducted by the tribunal on 6 February, 2013 and 13 June, 2013. He was assisted by a registered migration agent throughout the processing of his claims. That agent made a number of written submissions on the applicant’s behalf.

The tribunal’s decision

The tribunal found that the applicant is a national of Sri Lanka and assessed his claims against Sri Lanka.
The tribunal accepted that the applicant was born in Udappu, Sri Lanka, that he is Tamil and a Hindu, and that he is married and has two children. It accepted that he is also the guardian of his nephew, who lives with his family in Udappu.
The tribunal accepted that neither he, nor any member of his family, had ever had any involvement with, or connection to, the LTTE. The tribunal accepted that his wife’s cousin had been kidnapped by men in a white van in 2004 or 2005 and had not been seen since. However, the tribunal declined to make any finding about why he was taken in a white van.
The tribunal accepted that the applicant worked as a fisherman in Udappu from about 1987 to 2012. He worked for an employer who would pay him and his colleagues according to their catch. He did not have a permit to fish as his employer had the permit. According to local law, he did not personally have to obtain a pass to fish as he did not go out to sea to fish.
The tribunal accepted that he sometimes travelled with other fishermen from Udappu to different areas in a region described as “the Vanni” to fish in the “off-season”. The tribunal accepted that he last worked in the Vanni at some time between May, 2009 and September, 2010.
The tribunal accepted that when he was working in Udappu, he was usually stopped on his way to work at the checkpoint in his village and questioned by the military who sometimes told him to go home and return to fish when the sun came up. The tribunal acted on the basis that the applicant did not claim that he was ever harmed or threatened or assaulted by the military or police at a checkpoint or elsewhere in Udappu. The tribunal did not accept that he ever suffered any physical harm or threat of harm at a checkpoint or elsewhere in Udappu in the course of his work as a fisherman. The applicant said that he was never prevented from doing his work as a fisherman in Udappu. He described what occurred at the checkpoints as an inconvenience. The tribunal concluded that being stopped and questioned at checkpoints in Udappu and sometimes told to go home and return at sunrise did not amount to serious harm for the purposes of s.91R of the Act.
Of the claims made by the applicant about his treatment whilst he was working in the Vanni, the tribunal said:
45. With regard to incidents that occurred outside of Udappu, in the Vanni, the applicant claimed that he was also harassed at the various military checkpoints he had to pass through on the way to and from the Vanni. Despite his written statement that “whenever [I] went outside Udappu to fish the SLA … would chase [me] away by beating [me] or raising their hands as if to beat [me]” and his agent’s submission that he was ‘regularly’ beaten in the Vanni, the applicant’s clear evidence at the hearing, which the tribunal accepts, is that despite being stopped and questioned at military checkpoints in the Vanni, which prior to the end of the war would include being asked whether he had any involvement with or knowledge of the LTTE, the applicant was never physically harmed or assaulted by the military or police at a checkpoint or elsewhere in the Vanni. The applicant’s clear evidence at the hearing, which the tribunal accepts, was that the one and only incident that occurred to him in the Vanni was in Vannankulam, when he was stopped in the market by the SLA and taken to the nearby SLA camp and questioned for about three hours about what he was doing in Vannankulam and whether he had had any involvement with the LTTE; he said that the soldiers intimidated him but he did not give evidence that he was physically harmed or assaulted, but that the soldiers warned him to stay out of trouble and to return home. Although the applicant was not able to recall whether this incident occurred before the end of the war, as noted above, the tribunal is prepared to accept that it occurred sometime between May 2009 and September 2010.
46. At the hearing, the tribunal put to the applicant that in his written statement he had referred to an incident in 2010 in Mullaitivu where he was taken to the SLA camp and slapped, and in response, his clear evidence was that the only incident in the Vanni was the one in Vannankulam. Accordingly, the tribunal does not accept that he was ever taken to the SLA camp in Mullaitivu and slapped by soldiers. Having carefully considered the evidence before it, the tribunal does not accept that the applicant was ever physically harmed or assaulted by the military or police at a checkpoint or elsewhere in the Vanni, but does accept that he was on one occasion questioned by soldiers in Vannankulam and taken to the SLA camp where he was questioned for three hours; he did not claim to have suffered mistreatment during that incident, and although the tribunal accepts that he was intimidated by the soldiers and would have felt threatened by the situation, it does not, on the evidence before it, accept that he suffered harm that would amount to serious harm for the purposes of s.91R while present in the Vanni. The tribunal has considered whether being stopped at checkpoints in the Vanni and questioned by soldiers who asked whether he had involvement with the LTTE amounts to serious harm, however, on the available evidence, it does not accept that such conduct amounts to serious harm for the purposes of s.91R.
The tribunal accepted the applicant’s claim that the incident in Vannankulam caused him to be scared and that he did not return to the Vanni to fish in the following season prior to his departure to Australia. Instead, he fished in the rivers and tanks around Udappu and was able to earn sufficient income to support his family.
The tribunal did not accept the applicant’s claims that he was “constantly harassed” and “regularly beaten and threatened with violence” and that he was “twice beaten in Mullaitivu”, all of which he claimed prevented him from earning a livelihood.
The tribunal did not accept that the applicant suffered serious harm for the purposes of s.91R in the course of his work as a fisherman.
The tribunal considered whether the applicant’s travel to, and work in, the Vanni prior to September, 2010 caused the Sri Lankan authorities to impute him with a pro-LTTE profile or to consider him as linked in some way to the LTTE. It did not accept that the applicant was ever suspected as being a LTTE member or supporter because of his work as a fisherman in the Vanni or in Udappu or because of his travel to, and presence in, the Vanni.
The tribunal made a series of findings about the applicant’s travel outside of Sri Lanka as follows:
a)The applicant first obtained a passport in 1997 because he had wanted to work overseas to earn more money. He obtained further passports in December, 2002 and May, 2007.
b)He first departed Sri Lanka in 2007 when he flew from Colombo to Malaysia for a holiday with his cousin. He did not encounter any difficulty exiting or returning to Sri Lanka.
c)In 2011 he flew from Colombo to Chennai to pray at a temple for his wife to give birth to a daughter. He did not encounter any difficulty exiting or returning to Sri Lanka.
d)In January, 2012 he flew from Colombo to Chennai with his uncle to see his brother-in-law who was sick. He did not encounter any difficulty exiting or returning.
However, the applicant claimed that following his return from India in September, 2011 the CID and local police came to his home and asked him about his travel to India, including whether he had any involvement with or knowledge of the LTTE in India. His evidence was that they just came to talk to him about his trip and told him to inform them of any future overseas travel. The tribunal noted that the applicant’s account was consistent with independent information from UNHCR to the effect that in the recent past it has not been uncommon for returnees from overseas to receive a visit from the local police or CID on their return to their village. The tribunal accepted the applicant’s claims in this regard.
The applicant’s second trip to India took place in January, 2012. He told the tribunal that he did not notify the local police or the CID of his trip because he did not have time to do so. The tribunal found that implausible. The applicant said that he had not taken the request to notify the CID or police of future travel seriously. The tribunal determined that indicated that the applicant did not have a genuine fear in relation to the CID or police attending his house in September, 2011 and that the request to notify them was not made in a threatening or demanding manner. The tribunal concluded that the applicant was not a person of interest to the Sri Lankan authorities at that time.
At the first tribunal hearing, the applicant claimed for the first time that about a week after his return from India in January, 2012 two plain clothes police came to his house to ask him about his travel and why he had not notified them. He told them he had gone with his uncle to India for a medical emergency. According to his evidence, the officers spoke to him outside the front of his house for about 30 minutes and said to him they would catch up with him another time and teach him a lesson; he made no claim that he was accused of being involved in any criminal or adverse conduct or that he was harmed or requested to report to the station for further questioning.
The tribunal rejected this claim because:
a)it was not raised until the first tribunal hearing; and
b)when challenged about it, the applicant said that he had memory problems, something else not raised earlier.
The tribunal found “that the applicant was an unreliable witness who was prepared to fabricate evidence to enhance his claims”.
The tribunal did not accept that at the time he left Sri Lanka to come to Australia the applicant was a person of interest to the Sri Lankan government or any of its agencies or any other group, nor was he a person who had ever been suspected or accused of having had a connection to or involvement with the LTTE or any other group or organisation with an adverse profile.
As to the threats made by Sinhalese crew on the boat journey to Australia, the tribunal said:
56. Prior to the first hearing, the applicant had not claimed in his protection visa application that an incident which occurred on his boat journey to Australia might have caused him to be at risk of harm on return. At the second hearing, the tribunal invited him to give evidence on the matter and the applicant initially said that nothing had happened on the boat. However, when the tribunal alerted him to information on the Department file which indicated he had informed the Department that the Sinhalese boat crew on his journey to Australia had taken photos of the Tamil passengers and threatened to harm the family of any person who informed on them to the Australian authorities, he confirmed that that had occurred, and he said that they might get him if he goes back. But in response to questioning from the tribunal, it became clear that apart from informing the Department of the incident, he had not given detailed evidence about the identity of the crew to the Australian police or other agency. As discussed with him at the hearing, in light of the fact he had not given evidence against any of the crew members, that there were 62 passengers on the boat and that he had not received any threat from the Sinhalese crew since arriving in Australia, the chance of the crew pursuing and harming him in Sri Lanka seemed remote. Having carefully considered the applicant’s evidence, the tribunal does not accept that there is a real chance of him suffering serious harm from the Sinhalese boat crew who brought him to Australia, or their agents, in the reasonably foreseeable future.
Finally, the tribunal did not accept that the CID came to his family home in July, 2012 and asked his wife questions about him, as he claimed.
The tribunal did not accept that the applicant would face persecution if he returned to Sri Lanka because he was a Tamil from Udappu, because he had worked as a fisherman or because he had departed the country illegally and had applied for asylum in Australia. The tribunal also did not accept that there was a real chance that the applicant would be abducted by a white van because of his connection with his cousin or for any other reason.
Whilst the tribunal accepted that the applicant might be questioned by the authorities on his return, it was not satisfied that this would lead to him suffering serious or significant harm. On the basis of the country information accepted by the tribunal, it did not accept that the applicant would otherwise face serious or significant harm because he was a failed asylum seeker. It also found that whilst the country information indicated that he might be remanded in custody for a few days and fined because of his illegal departure from Sri Lanka, this would be the result of a law of general application that would not be applied in a discriminatory manner. The tribunal did not accept that being detained for a few days before being bailed constituted serious or significant harm or that there was anything more than a remote chance that the applicant would face imprisonment or suffer serious or significant harm whilst being detained. The tribunal did not accept that the imposition of a fine would constitute significant harm.
Having considered the applicant’s claims cumulatively, the tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason or that there was a real risk that the applicant would face significant harm if he returned to Sri Lanka.

Application for review

The applicant filed an application in this Court on 29 July, 2013 in which he alleges that the tribunal’s decision “was affected by legal error”. On 28 November, 2013 he filed an amended application and an affidavit in support (annexing an incomplete transcript of the second day of hearing before the tribunal), as well as an outline of written submissions.

Ground 1 of the amended application

This ground is in the following terms:
That the Refugee review tribunal failed to take into consideration relevant information in deciding that the applicant did not have a well-founded fear of persecution for a convention reason, amounting to jurisdictional error.
No particulars of this ground are given. The amended application does not illuminate the ground further. On its face, it looks like a challenge to the merits of the tribunal’s decision.
However, notwithstanding the way in which the applicant’s first ground of review is framed, it is apparent from the applicant’s written submissions that the applicant’s real complaint is that, owing to an alleged error in interpretation, the tribunal misunderstood the applicant’s evidence about his interaction with the military or the police whilst he was in the Vanni region outside of Udappu.
In his written submissions, the applicant points to the passage that I have set out above at paragraph 15. He contends that the tribunal’s recitation of his evidence is not consistent with his evidence before the tribunal.
The applicant submits that the tribunal was reliant on assessing the applicant’s “clear evidence” through an interpreter. And so it was. The applicant submits, however, that the interpretation upon which the tribunal’s assessment was based is inaccurate. He submits that variations in dialect and colloquialism arise in all languages and he believes that his responses were not accurately interpreted. He suggests that it is upon this basis that the tribunal failed to take into consideration relevant information, amounting to jurisdictional error.
The audio recordings of the review hearings were provided to the applicant after those hearings. Transcripts of the hearings have been placed before me with the consent of all parties. The transcripts set out what was said by the interpreter at the hearings.
Paragraph 45 of the tribunal’s reasons deals with the applicant’s treatment at the hands of the Sri Lankan military or police outside of Udappu and in the Vanni region. Specifically it deals with two matters. The first is the treatment of the applicant at various military checkpoints on his way into and out of the Vanni region. He gave evidence that he would be chased by the authorities and they would beat him or raise their hands to him as if to beat him. However, the tribunal discounted those claims because the tribunal recorded that at the first hearing in February, 2013 the applicant’s evidence was that he was never beaten or assaulted by the army or the police at any checkpoints or anywhere else in the Vanni save for one occasion.
The second matter dealt with in paragraph 45 of the tribunal’s reasons is the one occasion upon which the applicant claimed to have been physically harmed by the military. For ease of reference, I set out what the tribunal said in paragraph 45 of the reasons for decision again:
The applicant’s clear evidence at the hearing, which the tribunal accepts, was that the one and only incident that occurred to him in the Vanni was in Vannankulam, when he was stopped in the market by the SLA and taken to the nearby SLA camp and questioned for about three hours about what he was doing in Vannankulam and whether he had had any involvement with the LTTE; he said that the soldiers intimidated him but he did not give evidence that he was physically harmed or assaulted, but that the soldiers warned him to stay out of trouble and to return home
Relevantly, the transcripts demonstrate the following exchange:

Excerpt from the transcript of the two RRT proceedings

00:50:43 Interpreter [translation] When I went to do the other season, when I can’t work here, when I went to Vanni, like once the army persons, they came into the marketplace, they dragged me out and they told me that they want to take me to the camp, and that’s the time Vanni was in the LTTE control.

Member When did that happen?

Interpreter [translation] 2010.

00:51:58 Member Did you say it was under the LTTE control then, or the army control?

Interpreter [translation] Army’s control.

Member Sorry, I misunderstood you, sorry.

Interpreter [translation]

00:52:30 Member What happened?

Interpreter [translation] Six months, I’ll be doing, I will be working here, and six months, I will be working there, and they asked me, the reason they took me is being a Tamil, why you are coming here? And, doing your work? Because, you should work in your village. And, that’s the reason they took me to the camp, and they beat me there.

00:53:11 Member Were you by yourself or with other people? Other fishermen?

Interpreter [translation] They took three people, and they released two people but they kept me.

Member How long did they keep you there for?

Interpreter [translation] Around three to 3.5 hours.

Member And, when you say they beat you, describe what happened?

00:53:57 Interpreter [translation] They beat me, saying that why, you are being a Tamil, why did you come from your village to do your work here, and you are an LTTE supporter? Are you coming here to emphasise that, because you are, or why should you come here, without doing this work in your village? And, are you coming here because you’re a supporter of the LTTE?

Member What did you say to them?

00:54:52 Interpreter [translation] I told them that no, I’m not involved in any of these activities, what you are saying. You know in my village we can do this job only for six months, and after that, it’s a windy time, and I have to come over here, and we really have to do our job here for six more months. That’s the reason we are here.

Member What did they say?

00:55:36 Interpreter [translation] So, they warned me, they told me I shouldn’t see you here. So, you go back to your village.

Member And, whereabouts did this happen, which town or village?

Interpreter [translation] Sorry, it’s Vannankulam, Simbikulum, [translation]

Member Sorry, are you saying, that’s the name of the place, or are they different places?

00:56:30 Interpreter [translation] It’s all the places [translation] so, these are the places which is close by, but if it’s Vannankulam, that’s the place where this happened.

Member Is that near Mullaitivu [?]?

Interpreter [translation] No, it’s not closer to Mullaitivu, it’s far away from this place, in the east direction.

00:57:27 Member Because, in your written statement, you said that an incident which sounds similar to this, happened in Mullaitivu?

Interpreter [translation] this type of incident, it happened in Mullaitivu as well. I have given three places in my statement, Vannankulam, Simbikulum and Mullaitivu.

Member Are you saying that a similar incident of the army questioning you about why you were there, happened in those three places?

00:58:22 Interpreter [translation] These are the three places I actually go to, for work, and the incident, it happened in this place, Vannankulam.

Member Did similar incidents happen anywhere else, or only on that one occasion in Vannankulam?

Interpreter [translation] No, it’s only happened in Vannankulam, and that’s after this incident, I didn’t go back to Vanni, because they warned me that they shouldn’t see me in this area anymore, so I was scared, and I came back, and I didn’t got to Vanni thereafter.

The applicant gave clear evidence that when he was taken to the Army camp in Vannankulam he was beaten. I have emphasised the relevant parts of the transcript. He said it twice and did not resile from his statements. He was asked to describe what happened when he was beaten. His answer at 00:53:57 does not describe the beating he alleged he received, but does describe what other things happened when he was beaten. The applicant was not asked how he was beaten.
In those circumstances, the tribunal’s statement in paragraph 45 of its reasons that: “he said that the soldiers intimidated him but he did not give evidence that he was physically harmed or assaulted” and in paragraph 46 of its reasons that the applicant “did not claim to have suffered mistreatment during that incident” were both incorrect.
He had given evidence that he was beaten and assaulted. He did claim to have suffered mistreatment in the relevant incident. The tribunal has misapprehended his evidence. Contrary to the first respondent’s submissions, the applicant made no concession that he had not been beaten at all by the army or the police whilst he was in the Vanni region.
The applicant’s case is that his statements concerning his detention by the military at the army camp in Vannankulam were not translated accurately. In support of his contention, he has had the audio recordings of the tribunal hearings independently interpreted by a NAATI accredited interpreter of the Tamil language. A transcript of the alternate translation is annexed to his affidavit filed on 28 November, 2013. The following table sets out the transcript from the audio recordings of the tribunal hearing, and the applicant’s alternate translation.

*Excerpt from the transcript of the two RRT proceedings*			*Excerpt from “Authentic document” attached to the affidavit of the applicant filed 28 November 2013*
00:50:43	Interpreter	[translation] When I went to do the other season, when I can’t work here, when I went to Vanni, like once the army persons, they came into the marketplace, they dragged me out and they told me that they want to take me to the camp, and that’s the time Vanni was in the LTTE control.	Professional: Apart from that occasion did the navy or army or police ever take you to their station? Client (50:33): Yes, it has happened. Professional: Tell me what happened? Client (50:44): When I went to my job, because we are Tamils, Vanni was under their control. We went for a job. We did a seasonal job which was 6 months in here and another 6 months over there. At that time they entered into Tamils Fishing huts. Not all of the army personnel’s. They entered and hold my shirt and dragged me out, they also told me they wanted to take me to the camp.
Member	When did that happen?	Professional: When did that happen?
Interpreter	[translation] 2010.	Client (51:49): 2010…approximately in 2010.
00:51:58	Member	Did you say it was under the LTTE control then, or the army control?	Professional: Did you say under the LTTE control or Army control?
Interpreter	[translation] Army’s control.	Client (52:11): Army control.
Member	Sorry, I misunderstood you, sorry.	Professional: I misunderstood your sorry…
Interpreter	[translation]
00:52:30	Member	What happened?	Professional: What happened?
Interpreter	[translation] Six months, I’ll be doing, I will be working here, and six months, I will be working there, and they asked me, the reason they took me is being a Tamil, why you are coming here? And, doing your work? Because, you should work in your village. And, that’s the reason they took me to the camp, and they beat me there.	Client (52.28): Then, I was called… because we work 6 months in here and rest in over there. Why did you come from your village to here for a job? What are the reasons? Being a Tamil, you need to remain there. Why are you coming here? What are you trying to take from here? This was the way I was questioned and assaulted under their custody. I also received beat.
00:53:11	Member	Were you by yourself or with other people? Other fishermen?	Professional: Be by yourself or with other people..with other fisherman?
Interpreter	[translation] They took three people, and they released two people but they kept me.	Client (53:35): Took three people and released 2 people but kept me and written.
Member	How long did they keep you there for?	Professional: How long did they keep you for?
Interpreter	[translation] Around three to 3.5 hours.	Client (53:35): 3 hours. They kept me and sent back.
Member	And, when you say they beat you, describe what happened?	Professional: When you say they beat you..describe what happened?
00:53:57	Interpreter	[translation] They beat me, saying that why, you are being a Tamil, why did you come from your village to do your work here, and you are an LTTE supporter? Are you coming here to emphasise that, because you are, or why should you come here, without doing this work in your village? And, are you coming here because you’re a supporter of the LTTE?	Client (54:00): You… why did you come from your village? They accused me that I am a supported or LTTE, and used this point, they assaulted. Being a Tamil, why do you need come and work while you live in your place. They also told I am having a power, and collaborating with LTTE. On that basis they had beaten me.
Member	What did you say to them?	Professional: What did you say to them?
00:54:52	Interpreter	[translation] I told them that no, I’m not involved in any of these activities, what you are saying. You know in my village we can do this job only for six months, and after that, it’s a windy time, and I have to come over here, and we really have to do our job here for six more months. That’s the reason we are here.	Client (54:55): I told them this is very usual. Because I do this job 6 months in my village and rest of the 6 months in here, as it is a seasonal job mostly relaying on windy patterns. Other than, there was no reason to come here.
Member	What did they say?	Professional: What did they say?
00:55:36	Interpreter	[translation] So, they warned me, they told me I shouldn’t see you here. So, you go back to your village.	Client (55:36): They warned me and told I shouldn’t see you in here. If I see you again anything may happen to you…so go back…This is what they told me.
Member	And, whereabouts did this happen, which town or village?	Professional: Where about this happened? Which town or Village?
Interpreter	[translation] Sorry, it’s Vannankulam, Simbikulum, [translation]	Client (56:00): Thalaiaddy, Kattankadue. I have given as Vannankulam and Chundikulam.
Member	Sorry, are you saying, that’s the name of the place, or are they different places?	Professional: Are you saying that the name of place or different places?
00:56:30	Interpreter	[translation] It’s all the places [translation] so, these are the places which is close by, but if it’s Vannankulam, that’s the place where this happened.	Client (56:38): All the places which are close by, Vannankulam, mainly in Thalaiaddy.
Member	Is that near Mullaitivu [?]?	Professional: Is that’s near Mullaitivu?
Interpreter	[translation] No, it’s not closer to Mullaitivu, it’s far away from this place, in the east direction.	Client (57:14): No, not close to Mullaitivu. That is far away from Mullaitivu.
00:57:27	Member	Because, in your written statement, you said that an incident which sounds similar to this, happened in Mullaitivu?	Professional: In your written statement you said incident similar to this happened in Mullaitivu.
Interpreter	[translation] this type of incident, it happened in Mullaitivu as well. I have given three places in my statement, Vannankulam, Simbikulum and Mullaitivu.	Client (57:46) Yes, this happened in Mullaitivu …. I have given three places in here… Vannankulam,Chundikulam and Mullaitivu.
Member	Are you saying that a similar incident of the army questioning you about why you were there, happened in those three places?	Professional: Are you saying that similar incident of the army questioning you about why you were there happened in those 3 places?
00:58:22	Interpreter	[translation] These are the three places I actually go to, for work, and the incident, it happened in this place, Vannankulam.	Client (58:28): No. An incident only happened in one place. I have given the name of three places where I been for my employments. I had been to these three places. But an incident only happened in this place only.
Member	Did similar incidents happen anywhere else, or only on that one occasion in Vannankulam?	Professional: Did similar incidents happen anywhere else or only on that one occasion in Vannankulam?
Interpreter	[translation] No, it’s only happened in Vannankulam, and that’s after this incident, I didn’t go back to Vanni, because they warned me that they shouldn’t see me in this area anymore, so I was scared, and I came back, and I didn’t got to Vanni thereafter.	Client (59:09): No… no. thereafter only I left Vanni. Because I warned that I should not be seen in this place. Then I never returned back because I was afraid.

The applicant submits that there is evident confusion between both the frequency with which relevant events occurred and whether the applicant was physically beaten. But in my view there is no confusion. On both the original translation heard by the tribunal and the applicant’s alternate translation, he describes being taken by the Army, spoken to by them and either assaulted or beaten. On both versions, the beating happened on one occasion only in Vannankulam.
In WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 at [29] the Full Court of the Federal Court endorsed the approach to the issue of inadequate interpretation adopted by Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. It held that an applicant “must establish that he was effectively prevented from giving his evidence. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry …”. The first respondent submits that the Perera test was put another way by Middleton J in in SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 at [21], where his Honour stated that in order for the applicant to succeed he or she needs to establish, by probative evidence, that:
a)the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving evidence at the hearing; or
b)errors made by the interpreter at the hearing were material to the conclusions of the tribunal adverse to the applicant.
The transcript relied upon by the applicant does not establish that the standard of interpretation at the tribunal hearing was generally inadequate. Nor does it establish that the interpreter at the hearing erred in relation to the applicant’s statements. On both versions, the applicant’s case was that he was beaten by the Army personnel who had taken him. That essential part of the applicant’s case was conveyed at the hearing in the passages I have extracted above.
To the extent that the applicant seeks to rely upon misinterpretation in support of this application, his attempt must fail.
However, I earlier determined that the tribunal has misapprehended the evidence before it. That determination does not depend upon the accuracy of the interpretation at the first tribunal hearing. It is based upon the words actually spoken by the interpreter who was performing interpretation at the first hearing. On the basis of what was said by the interpreter at the hearing (which in any event was not demonstrably inaccurate) the tribunal has clearly misapprehended the applicant’s evidence.
The applicant submits that the tribunal’s error compounded when the tribunal incorrectly assessed his evidence as inconsistent. He argues that was a factor in the tribunal’s finding that he was an unreliable witness who was willing to fabricate evidence to support his claim. But the tribunal did not consider that there had been any inconsistent claims or statements made about the relevant incident in Vannankulam. The tribunal made no such reference.

Had the tribunal properly apprehended that applicant’s claims about being beaten at the army camp in Vannankulam the tribunal would have been driven to make findings about those claims. Notwithstanding the general approach that the tribunal took towards the applicant’s credit, the tribunal might have accepted the applicant’s claim in that regard.
The first respondent submits that even if the applicant establishes that the interpreter erred in relation to the applicant’s evidence about whether he had been beaten whilst in the Vanni, it is plain that the issue of whether or not the applicant had been harmed in the past played no role in the tribunal’s determination that the applicant did not have well-founded fear of persecution for a Convention reasons or did not face a real risk of significant harm. I reject that submission. Whilst it might be so that the applicant has not established that the interpreter erred in relation to his evidence about whether the applicant had been beaten whilst in the Vanni, the issue of whether or not the applicant had been harmed in the past played a central role in the tribunal’s determination that the applicant did not have well-founded fear of persecution for a Convention reasons or did not face a real-risk of significant harm. In paragraph 46 of the tribunal’s reasons, the tribunal said:
46. …Having carefully considered the evidence before it, the Tribunal does not accept that the applicant was ever physically harmed or assaulted by the military or police at a checkpoint or elsewhere in the Vanni, but does accept that he was on one occasion questioned by soldiers in Vannankulam and taken to the SLA camp where he was questioned for three hours; he did not claim to have suffered mistreatment during that incident, and although the Tribunal accepts that he was intimidated by the soldiers and would have felt threatened by the situation, it does not, on the evidence before it, accept that he suffered harm that would amount to serious harm for the purposes of s.91R while present in the Vanni. The Tribunal has considered whether being stopped at checkpoints in the Vanni and questioned by soldiers who asked whether he had involvement with the LTTE amounts to serious harm, however, on the available evidence, it does not accept that such conduct amounts to serious harm for the purposes of s.91R.
That passage makes it clear that the tribunal’s misapprehension that the applicant did not claim to have suffered mistreatment during his detention at the army camp in Vannankulam or that he had been beaten was critical to its determination that he had not suffered harm which would amount to serious harm for the purposes of s.91R of the Act. By misapprehending the applicant’s claims, the tribunal has effectively considered the wrong question, namely whether the applicant had suffered harm which would amount to serious harm for the purposes of s.91R of the Act where he did not claim to have ever been beaten or subject to mistreatment at the hands of the Sri Lankan Army. The correct question was whether the applicant had suffered harm which would amount to serious harm for the purposes of s.91R of the Act where he did claim to have been beaten or subjected to mistreatment at the hands of the Sri Lankan Army. Put another way, the tribunal has failed to consider an integer of the applicant’s claim, based upon a misapprehension of the evidence from the applicant before the tribunal.
The tribunal’s decision is affected by jurisdictional error. This ground of review succeeds. Accordingly, the decision of the tribunal should be set aside and the matter remitted to the tribunal for a decision according to law.

Ground two in the proposed amended application

This ground is in the following terms:
That the Refugee Review tribunal failed to accord procedural fairness by using video-link to determine credibility, amounting to jurisdictional error.
In SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [23], Reeves J referred to the fact that although s.425(1) of the Act requires the tribunal to invite the applicant “to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”, there is no requirement that the opportunity to appear before the tribunal must be an appearance “in person”.
Section 429 of the Migration Act in turn permits the tribunal to allow the appearance by the applicant before the tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed-circuit television; or (c) any other means of communication. According to SZJTK (above) at [25]-[26], s.429 of the Act:
… clearly gives the tribunal a discretion to allow an applicant’s appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility).
In exercising that discretion, the tribunal would generally need to consider whether an appearance using such technology gave the applicant concerned a fair opportunity to give his or her evidence and to present arguments to it. The tribunal may also need to consider other factors, such as whether its questioning of the applicant concerned is likely to be conducted fairly and effectively using such technology; whether it would be able to properly make any necessary assessment of the applicant’s credibility; whether it may need to put a large quantity of documents to the applicant; and what delays and costs may be caused if the appearance were not to be conducted in that way …
By letter dated 7 January, 2013 the applicant was invited to appear by video-link before the tribunal on 6 February, 2013. A copy of the hearing invitation was sent to the applicant’s lawyer. On 15 January, 2013, the applicant’s lawyer sent to the tribunal a document styled “Response to Hearing Invitation” in which no complaint was made about the fact that the hearing was to be conducted by video-link. A submission that the applicant’s lawyer sent to the tribunal on 4 February, 2013 was also silent in relation to the manner in which the hearing was to be conducted.
By letter dated 29 May, 2013 the applicant was invited to attend a further tribunal hearing on 13 June, 2013. Again, the applicant’s lawyer made no complaint, either before or after the resumed hearing about the fact that the hearing was to be, and was in fact, conducted by way of video-link.
There is no evidence that the applicant expressed any opposition to appearing before the tribunal by video conference facility, or that the tribunal had any concerns that allowing the appellant to appear by means of that technology presented any difficulty.
I accept the first respondent’s submissions that the applicant has not provided any evidence that demonstrated that he was confused, disadvantaged or prejudiced in any way by the use of the video conference facility.
This ground of review is not made out.

Conclusion

For the above reasons the applicant has established that the tribunal’s decision is affected by jurisdictional error.
Accordingly, I make the orders set out at the commencement of these reasons.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 November, 2014.

Deputy-Associate:

Date: 18 November 2014