BZAID v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAID & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3490

Catchwords:
MIGRATION – Protection (Class XA) visa – whether tribunal’s decision was affected by jurisdictional error – whether tribunal made required findings – whether process before tribunal flawed because of interpretation issues – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958, ss.424AA, 422B, 425

Minister for Immigration and Khadgi (2010) 190 FCR 248
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

First Applicant:

BZAID

Second Applicant:

BZAIE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 950 of 2014

Judgment of:

Judge Jarrett

Hearing date:

19 February 2015

Date of Last Submission:

19 February 2015

Delivered at:

Brisbane

Delivered on:

24 December 2015

REPRESENTATION

Counsel for the Applicants:

Mr Richardson

Solicitors for the Applicants:

Essen Lawyers

Counsel for the First Respondent:

Ms Wheatley

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

The name of the second respondent be changed to “Administrative Appeals Tribunal”.
The amended application filed on 2 February, 2015 be dismissed.
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 950 of 2014

BZAID

First Applicant

BZAIE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of a refugee review tribunal made on 10 October, 2014. By that decision the tribunal affirmed a decision of a delegate of the first respondent made on 25 February, 2014 not to grant the applicants Protection (Class XA) visas.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
On 27 November, 2014 directions were made to prepare the matter for hearing. The applicants were given the opportunity to file an amended application setting out their grounds of review and any particulars in respect of those grounds. The parties were also directed to file written submissions.
The applicants have filed two amended applications, the latest being filed on 2 February, 2015. They have also filed written submissions. The first respondent has filed written submissions. I have had regard to the parties’ written submissions.

Background

The first applicant is a citizen of Vietnam who accompanied her husband, the second applicant, to Australia on 29 January, 2007. He entered Australia on a subclass 457 visa. She had a visa that was dependent upon her husband’s visa. In due course, those visas expired.
On 18 October, 2013 the first applicant lodged an application for a Protection (Class XA) visa. The second applicant also sought a visa but only on the basis that he was part of the first applicant’s family unit. He advanced no separate claims of his own.
For the sake of convenience and ease of reference, throughout the balance of these reasons, I will refer to the first applicant as “the applicant” and the second applicant as her “husband”.
For the purposes of her visa application the applicant claimed that when she lived in Vietnam and before she travelled to Australia, she worked in her local village as a radio announcer or broadcaster. That was between April, 2002 and December, 2005. She was able to express her own views freely. The applicant claimed to have been an “enthusiastic supporter” of the ruling communist government regime. The applicant was a member of multiple political organisations supporting the Communist Party and became a member of the Communist Party. The applicant was required to pay generous fees to these organisations on a monthly basis. However, after she joined the Communist Party her right to express her own views, she said, was restricted.
The applicant claimed that she gradually began to disagree with the Government restrictions on Vietnamese people who wished to voice their political opinion. She advocated for political reform. She became more active and vocal about expressing views which she claimed were contrary to those of the Government.
The applicant claimed that she feared her activities were being closely monitored by government authorities and she claimed that she was approached by police who warned her not to broadcast her “reasons for political reform” on local radio. She claimed that she moved to Australia with her husband and was glad to do so in order to “escape the constant fear” of persecution. The applicant informed her employers that she required leave for 4 years while accompanying her husband in Australia.
After the applicant and her husband came to Australia, she relied upon her husband’s primary visa to enable them to remain in Australia. She claimed that she had been living in fear since her departure from Vietnam.
The applicant claims that: “I had to sell all my assets to pay off my debt” to the various political organisations of which she was a member when she was in Vietnam. She claimed that she was still required to pay fees to those organisations when she was in Australia.
The applicant claimed that whilst in Australia she received multiple phone calls from organisations requesting that she pay her membership fees. The applicant claimed that her contact details were disclosed by an affiliate of the organisation, “Women Association of the Van Hai Village”, to which she belonged. She saw that as an illustration of “how much control the government still had over me despite leaving the country.”
The applicant returned to Vietnam for six weeks in March and April of 2011 to assist with the care of her ill father. She claimed that she had been interrogated by police regarding her outstanding payments upon her return to Vietnam in March, 2011 and was warned not to publish any anti-government material whilst in Australia. She stated, “I was very frightened for my safety”, and returned to Australia prematurely due to a fear of having “become a target” by authorities.
The applicant appears to have held six significant views which she claimed were contradictory to the government’s views and policies. These proposals were not broadcast by the applicant, but instead were written down and handed to public officials who subsequently refused to engage with the applicant about them. These views were:
a)the expansion of a Swedish HIV program that was operating in parts of Vietnam;
b)the expansion of foreign investment in Vietnam;
c)that workers should only work 8 hours per day for 5 days per week;
d)that paperwork should be done at local office;
e)that there should be an increase broadcasting freedom; and
f)that the “People’s Committee” should make its funding arrangements public.
On 6 January, 2014 the applicant attended an interview with a delegate of the first respondent for the purposes of her application. The interview was not concluded on that day and continued on 17 January, 2014.
On 25 February, 2014 a delegate of the first respondent refused the application for the Protection visa. The applicant and her husband sought review by a refugee review tribunal.
The tribunal invited the applicant and her husband to a hearing to be held on 7 October, 2014. Prior to that, on 22 September, 2014 the applicants’ representative had provided written submissions, a short statutory declaration of the applicant and some other material.
On 7 October, 2014 the applicants and their representative, attended a hearing before a tribunal. The applicant had the assistance of an interpreter at the hearing, but as I will discuss later in these reasons, there was some difficulty with the interpretation at the hearing. The applicants were also represented at the hearing by their agent who spoke Vietnamese.
Before the tribunal, the applicant maintained her claims that she had a well-founded fear of persecution based on (separately or cumulatively):
a)her political opinion against the Vietnamese government;
b)her political opinion in relation to forbidden topics, such as criticisms of the government’s economic management, proposed changes to the government involvement in local economic and other programs, the facilitation of the proposed expansion to the Swedish HIV Aid organisation project;
c)the non-payment of membership fees to the Communist Party, the Women’s Association and the People’s Committee of Van Hai;
d)the questioning and warnings from the police during her visit to Vietnam in 2011.
On 13 October, 2014 the tribunal notified the applicants of its decision made on 10 October, 2014 to affirm the delegate’s decision not to grant the applicants Protection visas. The tribunal was not satisfied that the applicant was a person to whom Australia owed protection or complementary protection obligations. Her husband advanced no independent claims and so, his application was also dismissed.

The grounds of review

The amended application filed on 2 February, 2015 contains three grounds of review.

Ground 1

The first is stated in the following terms:
(1) The Tribunal denied the Applicant procedural fairness and /or committed an error of law, pursuant to s 422B of the Migration Act 1958 (Cth), by failing to consider the claim made by the First Applicant and failing to give procedural fairness to the First Applicant and /or misconstruing the claims made by the Applicant . Furthermore, the Tribunal failed to act in a way that is fair and just.
Particulars:
• During the Tribunal hearing, the Tribunal inquired about the first Applicant’s activities in Van Hai Radio Station. The first Applicant gave evidence with the assistance of an interpreter. The first applicant’s agent objected to the interpreter as she was only summarising the first Applicant’s evidence. At para 35 of the decision record, the Tribunal said that it was satisfied that there-were issues with the quality of the interpretation. The first Applicant was given a service of a telephone interpreter thereafter.
• At p 35 of the Tribunal Decision record, it said that it recapped the evidence given by the First Applicant earlier and the First applicant agreed the version put by the Tribunal. However, the First Applicant was unaware that she was agreeing with the Tribunal to accept the summary of evidence translated by the previous interpreter. This prevented the First Applicant from giving a detailed evidence on her activities at the Van Hai Radio Station.
• The continuous interruptions to the hearing, the translation issues and recording issues altogether affected the First Applicant’s ability to present evidence. The Tribunal’s findings at paragraphs 69 and 70 was is affected by the improper interpretation of evidence.
The applicants’ written submissions address some aspects of this ground of review, but counsel for the applicants made it clear at the commencement of the hearing before me that the matters raised by this ground were adequately covered by the remaining two grounds of the application and it did not require any separate consideration.

Ground 2

The second ground of review is in the following terms:
(2) The Tribunal is in breach of its statutory obligation under s 36(2)(aa) of the Migration Act 1958. It failed to analyse and or examine the relevant information or facts in this regard.
Particulars:
•The Tribunal failed to consider whether the first Applicant was at risk of harm upon her return despite the evidence of two incidents with Vietnamese Police where the first Applicant was subject to interrogation and taken to police station.
•In 2011, during a visit to Vietnam, she was interrogated at the local police station and warned about publishing her views. Also, she was summoned to the Police station and questioned again by the Village police chief the day before she left Vietnam. ~~The Tribunal did not give an opportunity to the first applicant to present evidence in this regard.~~
•At Para 71 of the decision record, the Tribunal said that even though the first applicant had freedom to publish antigovernment views in Australia for 7 years she refrained from doing so as she did not held any antigovernment views. In arriving at this decision it failed to consider that the applicant has been living in fear for the whole period. Her fear of significant harm upon return arose as she was warned by the police in 2011 .
• The Tribunal failed to fully investigate the Applicant’s evidence in this regard. It simply concluded that Applicants fear arose from non-payment of membership fees for several organisations she had membership with.[ para 73] line 4&5
• ~~The first Applicant ‘.vas not given an opportunity to be heard on this issue relevant to the assessment of her claims under complementary protection.~~
By this ground, the applicant invites me to find that the tribunal has not considered her evidence that she had a fear of returning to Vietnam. By her counsel’s submissions, she points out that:
a)in her statutory declaration which was provided in support of her visa application, (set out in full in the tribunal’s reasons), she swears:
As I was being interrogated by the police I was very frightened for my safety so 1 had to change my plans.
b)in her statutory declaration which was provided to the tribunal, she swears:
This was my worst fear. Fear of getting caught by the police. I then decided to return to Australia as soon as possible I was fearful of my life; however, I did not want to leave my severely sick father ...
It is clear from the tribunal’s reasons that it was aware of the applicant’s evidence about these matters. It set out her statutory declarations in its reasons. In addition, the tribunal referred to the applicant’s fears in paragraphs [50], [52], [53] and [58] of its reasons for decision.
The applicant argues that the deficiency in the tribunal’s decision-making is that it does not reach a conclusion about the applicant’s claimed fears. At best, it is argued, all there is, is a passing reference to these matters during a summary of the evidence. It is argued that there is nothing either in the Convention criterion consideration nor in the complementary protection criterion consideration parts of the tribunal’s reasons that shows the tribunal giving consideration to the applicant’s fears.
I think the applicant’s submissions in that regard are correct in that the tribunal does not express a concluded view about whether the fears that the applicant claimed to have were genuine. Rather, what the tribunal appears to have done is to have moved to a consideration of:
a)an assessment of the risk of harm to the applicant; and
b)a determination of whether the applicant’s fears were well-founded
by examining the claimed basis for those fears.
So much appears from paragraphs [67] – [74] of the reasons for decision. The approach of the tribunal assumes that the applicant held the fears that she claimed she had, even though the tribunal had expressed some doubt about them. That is a permissible course for the tribunal to adopt.
The applicant argues that the tribunal has simply cast aside her claimed fears and given them no consideration (cf. Minister for Immigration and Khadgi (2010) 190 FCR 248), but in my view the tribunal has not done that. It has assumed the existence of the fears and moved to examine whether, on the material before the tribunal it could be said that the fears were well-founded. A finding about the existence of the fears expressed by the applicant was unnecessary because, on a fair reading of the tribunal’s reasons, that matter was subsumed in the tribunal’s findings about the foundation of those fears.
Rather than examine the fear expressed by the applicant, the tribunal set about examining the basis, or reasons, for those fears. The tribunal considered the applicant’s memberships of the Women’s Association, the People’s Committee and the Communist Party which limited her ability to advocate her views in public. The tribunal found that this did not amount to harm, serious or otherwise.
The tribunal did not accept that any of the views advocated by the applicant would attract adverse attention by the Vietnamese authorities. It accepted that the applicant was warned not to express anti-governmental views while she was in Australia and when she visited Vietnam in 2011. However, the tribunal found that the applicant was a supporter of the Vietnamese Government.
The tribunal accepted that the police visited the applicant’s father and left quietly without making threats on each occasion as the applicant had claimed. The tribunal considered that this did not represented any level of adverse interest in the applicant and found that she would not be a person of interest to the police upon her return merely as a result of her presence in Australia.
Whilst the tribunal doubted the genuineness of the applicant’s fears, it did not reject her application on the basis of her credibility concerning those claimed fears.
I accept the first respondent’s submission that when the tribunal’s reasons for decision are considered as a whole, it is clear that the tribunal has considered the fear claimed by the applicant and the claimed incidents with the Vietnamese police.
Further, findings or conclusions about the applicant’s subjective fears would not have been dispositive of the application because the tribunal needed also to find that those claimed fears were well-founded. For the reasons that it gave the tribunal concluded that matter against the applicant in respect of her claim pursuant to s.36(2)(a) of the Act.
The same approach underpins the applicant’s claims pursuant to s.36(2)(aa) of the Act. Having analysed the reasons for which the applicant claimed to be in fear, the tribunal concluded that there was no real risk that that the applicant would suffer significant harm from the Vietnamese authorities if she was to return to Vietnam. Given the way in which the applicant conducted her claim and the discussion by the tribunal set out at paragraphs [67] – [77] of the reasons for decision, the conclusion reached by the tribunal on this point is unremarkable.
To the extent that the applicant invites me to infer that the tribunal did not consider her evidence about her fears of harm should she return to Vietnam by reason of the experiences set out in her statutory declarations and in her oral evidence to the tribunal, I decline to draw that inference.
In my view ground two of the amended application filed on 2 February, 2015 does not demonstrate any jurisdictional error by the tribunal.

Ground 3

The third ground of the applicants’ amended application is in the following terms:
(3) The Second Respondent (the Tribunal) committed jurisdictional error at the hearing held on 7 October 2014. The hearing did not satisfy s 425 of the Migration Act 1958 (Cth) (the Act). because the interpreters’ translations were so inadequate that the First Applicant was denied a proper opportunity to put her claims to the Tribunal.
Particulars
(a) Information given by the Tribunal to the First Applicant with respect to the elements of the Refugee Convention definition and the elements of the complementary protection definition in the Act were affected by material mistranslations or not translated at all by the first interpreter;
(b) The first interpreter did not adequately translate information given by the Tribunal to the First Applicant about procedural matters before the adjournment;
(c) The second interpreter did not adequately translate information given by the Tribunal to the First Applicant about procedural matters before the adjournment;
(d) Information or evidence given by the First Applicant at the Tribunal hearing was affected by material translations (or not translated at all) of the Tribunal members questions and her answers as to her:
a. involvement in the Van Hai Radio Station by both the first and second interpreters: and
b. views and opinions and the expression of those views and opinions in Vietnam.

Before commencing a consideration of this ground in more detail, it is as well to set out some principles that apply in cases concerning inadequate interpretation. The principles are not in dispute between the parties, although each tends to highlight different statements from different authorities.
Whether inadequate interpretation means that a hearing has not been fair, depends on the particular circumstances of the case: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [5]. Where interpretation is necessary, it must be adequate to “convey the substance of what is said’’: SZRMQ at [9]. It must be adequate “in order to communicate the substance or his or her case and to respond to issues raised’’: Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at [28]. It is not necessary, or perhaps even possible to achieve a perfect interpretation: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [26], SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [79]. What is required is that “the essential elements that were being conveyed by the appellant (applicant) were received by the Reviewer’’: SZRMQ at [90] .
In SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at Griffiths J said at paragraphs [72] to [74]:
... In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this which raises the application of s 425 of the Act is essentially that which was applied in cases such as Perera, SZOYU, Appellant Pl19 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed set out the relevant approach relating to alleged errors in translation in a s 425 context in the following terms at [29]:
To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry ...
[73] In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”
…
[74] Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ)...
A transcript of the hearing before the tribunal is in evidence. the applicant had a transcript prepared by an accredited interpreter. That transcript was checked for accuracy (at the parts in the English language) by the first respondent’s representatives. So minor changes were necessary. The parties were then content to rely on the affidavit deposed by Claire Campbell and filed on 9 February, 2015 by the first respondent which annexed to it a transcript of the hearing containing the interpretations of the applicants’ witness and the corrections made by the first respondent’s solicitors.
The applicants summarise their case under this ground by identifying three issues with the interpreting that was under taken at the tribunal hearing.
First, it is argued that the first applicant was effectively prevented from giving evidence at various stages of the hearing, as that concept is explained in Perera (above) at [38] to [41].
Second, it is argued that there were mistranslations which were so material as to cause the decision making process to miscarry.
Third, the applicants contend that I should conclude that there cannot be a conclusion that the applicant’s hearing was fair or a proper opportunity to be heard.
Before commencing a consideration of the applicant’s arguments on this ground, it is appropriate to record two matters. The first is that at the very commencement of the proceedings difficulties with the recording equipment were identified. The applicants were offered an adjournment on this account, but declined to have the hearing adjourned. In any event it seems that the difficulties were overcome. The second issue is that during the tribunal’s hearing, difficulties with the interpreter were identified by the applicants’ representative. He was concerned that the detail that was being given by the applicant was not being given by the interpreter who was, instead, giving only a summary of wat was being said by the applicant.
After some discussion, the first interpreter was released and another substituted. No further difficulties with the interpretation were thereafter raised by the applicants’ representative.
As to the first two issues identified by the applicants, they rely upon certain passages from the transcript. I will deal with each of the passages raised by the applicants and address their arguments accordingly.
The first passage relied upon appears at page 7 of the transcript as follows:
Tribunal:
I may refer to potentially adverse points during the course of the hearing.
Interpreter speaking in Vietnamese to the applicant:
So now I want to raise matters that are [inaudible] adverse during the hearing.
The applicant says that this is a misinterpretation of the tribunal’s member’s words. It is argued that the misinterpretation gives the applicant procedural advice which is incorrect, namely that she is told to expect the tribunal to first raise matters that are adverse.
The difficulty advanced by the applicant must be with the use of the word “now” by the interpreter. The tribunal is duty bound to raise adverse matters with the applicant for comment, so there can be no complaint that the tribunal has told the applicant that it will do that.
To the extent that the misinterpretation does represent an error, the error is minor and of no consequence. Whatever might have been conveyed by the use of the word “now” by the tribunal, what thereafter occurred was entirely unremarkable in the sense that the tribunal conducted the hearing by asking the applicant to explain he claims and questioning her about matters of concern to the tribunal. There is nothing said by the applicant or her advisor which would give the slightest indication that either was disadvantaged by what the interpreter said.
I accept the first respondent’s submissions that the error is minor and nothing turned on it. The error is not sufficient to provide an error in the process. This aspect of the applicants’ grounds of review has no merit.
The next relevant passage appears at pages 13 – 14 of the transcript. The relevant exchange tool place before the change of interpreters and immediately preceded the intervention of the applicants’ representative. I have included the preceding question from the tribunal so as to give the passage context. The relevant exchange consists of the following exchanges:
Tribunal:
Hang on, so in your statutory declaration, the most recent one, you talked about some views on foreign investment and HIV Aids programs so I’m just wondering if you could tell me what the content of the views that you felt you were unable to express was.
Interpreter speaking in Vietnamese to the applicant:
According to your statutory declarations you talked about your view on HIV and at the same time your views on foreign investment.
Can you please tell us the content of these views.
Applicant speaking in Vietnamese:
Yeah, so when I was already a member of the Party, I expressed my views on expanding business in the area form the large suppliers and changing it to smaller companies. So it is convenient to complete transactions between local businesses and international businesses so that we can get generate capital form international businesses investments. I put forward this proposal.
Interpreter speaking in English:
umm ...
Applicant speaking in Vietnamese:
So I suggested opening companies from the large suppliers so that it is more convenient for transactions between local businesses and international businesses. So for example when we form a company we need a director, a treasurer and a secretary so this form makes it easier to communicate with overseas companies.
Interpreter speaking in English:
My view is that I wanted to develop the big enterprises to facilitate to the joint investment with foreign companies for the benefit of the local business.

The point made by counsel for the applicants has merit. The evidence given by the applicant focused upon building of relationships between smaller local businesses and international businesses so that the local businesses could generate capital through international business investments. The applicant’s evidence seemed to emphasise the involvement of local businesses in international trade. The answer that was translated into English conveyed some of that meaning, but in a garbled and incomprehensive way.
However, after the change in interpreters, the tribunal again requested the applicant to express the views that she was unable to express relating to foreign investment. She did so with the assistance of the second interpreter. The applicant repeated the evidence that she had given earlier albeit in a slightly different form. The evidence was interpreted and she now does not take any issue with that interpretation. Immediately prior to her giving that evidence, the tribunal member invited the applicant’s representative to let the tribunal know if there was any further issue with the interpretation. There is nothing in the transcript to suggest that the applicant’s representative was concerned about the standard of interpretation in relation to those answers.
The tribunal’s reasons demonstrate that the tribunal understood the applicant’s evidence on this issue. At [36] of its reasons, the tribunal recorded:
The Tribunal asked the applicant to outline the content of the views she felt unable to express. The applicant stated that she asked the government to expand its foreign investment program so that any company can deal with overseas companies.
Later in its reasons, the tribunal again referred to the issue of foreign investment in Vietnam and recorded that the applicant’s views about the expansion of foreign investment were consistent with that of the Vietnamese government.
In my view, the applicant does not demonstrate that she was effectively prevented from giving her evidence about the issues raised in the passages above.
Further, whilst the passages extracted above reveal poor interpretation and perhaps misinterpretation, that subsequent evidence of the applicant and the interpretation of that evidence ameliorated the effect of the earlier errors. No reviewable error is revealed by the early misinterpretation.
The next passage is to be found at page 25 of the transcript. This exchange occurred after the change of interpreters.
Applicant speaking in Vietnamese:
And when we actioned the SIDA project we were working within a small funding and when the project was actioned I wanted to expand but the authorities were suspicious that I had my own political agenda.
Interpreter speaking in English:
WhenI was doing the SIDA program of Switzerland, everything was alright, but when I like to expand this bigger and the government was suspicious that I get involved in some secret party.
The applicant argues that the mistranslation of “political agenda” to “some secret party” is material. She argues that it is material because the tribunal was not made aware of the reason for the suspicions that the Vietnamese authorities had towards her. Consequently, the tribunal was unable to undertake proper enquiry in respect of the evidence in that regard. Secondly, the applicant argues that the mistranslation suggested quite a different matter to what it was that the applicant actually said.
In my view, the gravamen of the applicant’s evidence was that her plan to expand the SIDA project did not proceed because the authorities were suspicious of her. That suspicion according to her evidence was grounded in her political agenda. Her evidence as translated suggested that the suspicion was grounded in her being involved in some “secret party”.
In the context which appears from the preceding two pages of the transcript in which these passages, it is apparent that references to “party” are references to political parties. The tribunal referred to both the applicant’s evidence in her statutory declaration which referred to her political agenda (at [27] of the reasons) and her evidence at the hearing as set out above.
In my view, it clear from the tribunal’s reasons that the tribunal appreciated that:
a)the applicant’s hoped for expansion of the SIDA project did not proceed;
b)she thought that it did not proceed because the authorities were suspicious of her; and
c)the authorities suspicions were based upon her political views.
I accept the first respondent’s submissions that the references by the tribunal to the “secret party” and “another party” in paragraphs [42] and [45] are clearly an appreciation that the suspicions referred to by the applicant related to the applicant’s own political agenda. Although different words are used, the substance of the applicant’s evidence was conveyed and it was a matter to which the tribunal had regard.
Further, as the first respondent submits, the applicant’s claimed views in relation to the expansion of the Swedish HIV program were not found by the tribunal to be contrary to Vietnamese government policy. Given that the applicant’s overall claims were based upon political opinion, the tribunal’s findings that her opinions were not adverse or contrary to the government must mean that the mistranslation was, in any event, immaterial.
The next group of passages appear at pages twenty-six and twenty-seven of the transcript. They are as follows:
At page 26:
Interpreter speaking in Vietnamese:
When you had so many issues why didn’t you resign from the positions you had?
Applicant speaking in Vietnamese:
Because at that time my family had many difficulties. In 1996 and 1997 we developed the trend to play lotto, and I was the person who wrote the numbers for one of the boss of the lotto and when someone [won] the lotto he ran away and so I had   to compensate a few million to the people. So at that time I had no other source of income so I was forced to, because of the financial situation of my family I had to.
Interpreter speaking in English:
I could not resign from all the organisations that I worked for because I was in financial hardship, in 1996 and 97 I played lotto, the Vietnamese kind of lottery, and the owner, when I won the prize and the owner ran away so that’s why I have to put my all my money to cover if it go up to 20 million Vietnamese dong so I was in financial hardship I can’t      resign I had to work.
And at page 27:
Tribunal:
You gave up work with the radio station in December of 2005 and you said you continued with the Communist Party and the Women’s Association and the People’s Committee until you came to Australia in January 2007.
Interpreter speaking in Vietnamese:
You said in December 2005 you resigned at the radio broadcasting station and you joined the Communist Party group, and the Women’s Association and ..
Tribunal:
So what I am asking I’d ask was in light of your disagreements with the government why did you continue to be involved in those organisations why did you not resign from them?
Interpreter speaking in Vietnamese:
What he means is that you have had disagreements in opinions with the Party and you had left the task of broadcasting and you had join all of this when you have differences in opinions, so usually we wouldn’t join?
Tribunal:
You told me you couldn’t resign because you were in financial hardship and I have just been pointing out that you were paying them money not, as far as l can understand, that they were paying you money. So it would have been financially advantageous for you to resign I would have thought.
Interpreter speaking in Vietnamese:
You still had to pay the membership fees for the parties so he thinks that if you had financial hardship but we can still pay the fees then why didn’t you resign because you still had to pay?
Applicant speaking in Vietnamese:
Because when I worked I was the secretary for the People’s Committee and I was the President of the Women’s Association and I was also a radio broadcaster but the wage was a little over $1,000,000.00 a month so I could take out the $12,000.00 to pay so there still remains a portion to help out the   financial   situation   of my family, So at that time I had to compensate another person $37,000,000.00 so I had to work to find money to pay back the amount I owed. So in a month I only paid $12,000.00 but in a month I still had over $1,000,00.00
Interpreter speaking in English:
Yeah, compare with the fees that I have to pay only $12,000.00 a month but I received the salary from the secretary, from the Women, from the Communist Party around one million Vietnamese dong so I still of course to pay the fee and I still get the money to survive.
Tribunal:
I think that was the missing link that you were in receipt of a salary from the party.
I have included some exchanges between the tribunal member and the interpreter from page 27 so as to give the passages relied upon by the applicant some important context.
The applicant argues that the tribunal was told twice by the applicant that part of the reason for her financial hardship was that she had to compensate others for the actions of the boss of the “lotto” in which she was involved. She argues that the tribunal did not consider that evidence because the interpretation of her evidence about that matter was so poor. She argues that the tribunal’s failure to consider that mater meant that the tribunal did not consider an essential line of enquiry.
However, the context in which the evidence appeared is important. The tribunal was exploring a perceived inconsistency in the applicant’s claimed differences with the Communist Party and her continued membership with the Party and the other organisations of which she was a member. The tribunal was interested in knowing why the applicant did not resign from those organisations.
Her response was that because of financial and family difficulties she was not able to resign because she was receiving an income from those sources. The tribunal then sought to explore the perceived inconsistency between the applicant’s continued financial commitment as a member of the various organisations which she was able to pay and her claimed poor financial circumstances. She sought to explain that by saying that there were two reasons for not leaving the organisations, namely “she was stuck in a situation because someone had scammed her” and because she was still young and wanted to participate in the reform of the government.
As demonstrated by the transcript, the tribunal pointed out to the applicant that she had resigned from her broadcasting role in December, 2005 but had continued with her membership of the Communist Party and other committees of which she was a member. The tribunal then understood that the applicant was in receipt of an income from the Communist Party as well.

As the first respondent points out, the interpreter stated the essential and substantive parts of the applicant’s evidence on this matter namely that she was in financial hardship and that she had to cover $20 million Vietnamese dong, because the owner of the lotto business ran away. The substance of this financial hardship claim and that the applicant stated she had to “cover the loss” from the lotto defalcation was put to the tribunal.
The tribunal referred to the substance of the evidence put to it about this issue:
43. The Tribunal asked why the applicant did not resign from the Women’s Association, the People’s Committee and the Communist Party if her views were at variance with them and it was her membership which was preventing her from advocating her own views. The applicant stated that she was earning 1,000,000 Dong per month from her membership of the Communist Party, and she would have suffered financial hardship were she to resign.
At the core of this issue is the tribunal’s view that the applicant had voluntarily accepted the limitations that had been placed upon her right to freely express her views by reason of her membership of the Communist Party, the Women’s Committee and the People’s Committee. As to that matter, the tribunal said:
67. The Tribunal accepts that the applicant’s membership of the Women’s Association, the People’s Committee and the Communist Party resulted in a limitation on her ability to advocate her views in public. However, the Tribunal finds that this limitation was voluntarily accepted by the applicant, in exchange for her employment with those organisations. An analogy might be that a member of the Refugee Review Tribunal (or a judge of the Federal Circuit Court of Australia) might voluntarily accept a limitation in his or her ability to publicly advocate views on refugee issues in exchange for his or her employment with that Tribunal (or Court). The Tribunal finds that this does not amount to harm, serious or otherwise.
In my view no error is revealed by the matters pointed to by the applicant arising out of the extracted passages of the hearing transcript. She was not effectively prevented from giving her evidence. There were no material misinterpretations of her evidence.
The next passage to which the applicant points is found at page 33 of the transcript:
Interpreter speaking in Vietnamese:
You participated in the night to light the candle at the temple so you wanted to let the officials at your village know, so did you want to help the people at your village or what did you want to do on that night?
Applicant speaking in Vietnamese:
So, I think that I wanted everyone Vietnamese person in Vietnam to have freedom and not to single out people in my village. I want to do it for the people in Vietnam and not to especially Van Hai village. So this is why I participated in the program.
Interpreter speaking in English:
The reason I joined the candle night on June is to reach peace for all the people in Vietnam, not only the people of my village.
Tribunal:
And could the reason you got involved in this be to strengthen your protection visa application?
Interpreter speaking in English:
Could you please repeat the question.
Tribunal:
Could the reason you got involved in this organisation be to strengthen your protection visa application?
Interpreter speaking in Vietnamese:
The reason you participated in this group, is it to apply for visa of the protection visa [Interpreter said this in English] is it? So that you can get the visa that protect you that’s a protection visa [Interpreter said this in English]?
Applicant speaking in Vietnamese:
This is not true. It was that I think before when I was in Vietnam I had already participated in the government already and I know what the government in Vietnam is like. I was only thinking of the People’s rights in Vietnam. And I was only thinking of the freedom for people. Because my father and mother are still in my home town and I want my father and mother to have freedom that is why I did this. To
Interpreter speaking in English:
The reason I joined the party Vietnam is in order to ask for freedom in Vietnam because my family still in Vietnam my friends a lot of people still in Vietnam not only myself.
Applicant’s agent:
The question is not about joining the party, it’s about attending this candle night.
Tribunal:
Yes, We might just clarify that what I was talking about was attending the candle night in June for the Free Vietnam Association, did you do that in order to strengthen your protection visa application in which case I would have to disregard that conduct.
Interpreter speaking in Vietnamese:
He just asked again the reason you participated in the candle night is it for you to strengthen your case to apply for the protection visa?
Applicant speaking in Vietnamese:
On that point, one part I did think about it but one part I did think about the freedom for the people of Vietnam. Because the system of government in Vietnam is oppressive so I wanted to reform this way of thinking so I participated in this.
Interpreter speaking in English:
The main reason I attend the candle night is for wishing for the peace of the people in Vietnam and as well as to strengthen my visa protection.
Again, I have included some of the preceding parts of the transcript so as to give the applicant’s evidence context. The part relied upon by the applicant I have emphasised. As will be seen, the question which the applicant was answering adds considerably to the meaning and understanding of the answer.
Whilst the applicant’s answer to the tribunal’s question does not expressly state that she attended the candle night to strengthen her visit protection claim, the interpreters words to the tribunal expressly referred to the matter. However, on any reasonable view, the applicant’s answer made reference to her thinking about the strengthening of her case for the protection visa. Her reference to “one part I did think about it” could only be a reference to strengthening her case for a protection visa.
I accept the first respondent’s submission that there is no substantial or substantive mistranslation in relation to this answer.
In any event, the tribunal found:
72. The Tribunal finds that the applicant’s participation in the Free Vietnam association even in June 2014 was solely for the purpose of strengthening her protection visa application. It is not plausible that the applicant would delay 7 years in engaging in anti-government activity, and only do so after the delegate refused her protection visa application. The Tribunal disregards this conduct pursuant to s.91R(3)(b) of the Act.
The basis of the tribunal so finding was not because of anything that the applicant had conceded in that regard, but because of the matters referred to by the tribunal in paragraphs 70, 71 and 72 of its reasons for decision.
In my view, the applicant was not prevent effectively prevented from giving her evidence in respect of this matter. Nor did any mistranslation of a material effect on the outcome of the proceedings.
Finally, the applicant contends that when looked at overall, the hearing was procedurally unfair to the applicant. I was asked to specifically consider the words of Robertson J in SZRMQ at [67] to [69]:
[67] Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.
[68] The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
[69] If a mistranslation or non-translation could have affected the outcome then depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
The applicants submit that the misinterpretations contained in the extracts set out above from the tribunal’s hearing could have affected the outcome of the applicant’s application. The applicant emphasises the character and frequency of the misinterpretations outlined above and others which are not, though are contained in the transcript. When considered in totality, or in the aggregate, the applicants argue that all the matters affecting translation also culminate in a denial of procedural fairness to the applicants.
In addition to those matters, the applicants point out that the tribunal’s explanation of the refugee convention definition and the complementary protection criteria are inadequately translated by the first interpreter. Then, after the second interpreter is secured, the following exchange takes place:
Tribunal:
I don’t propose to repeat the introduction that I made because Mr Nguyen said he had explained to you requirements of the refugee convention and the complementary protection before the hearing.
Interpreter speaking in Vietnamese:
I don’t need to repeat, because you already know the requirements of a refugee person.
Applicant speaking in Vietnamese
Yeah.
As to this matter, the first respondent submits that there is no statutory requirement for the tribunal to set-out, outline or provide an introduction of the statutory requirements to meet the definition of a refugee or that of complementary protection under the Act. I accept that submission. However, notwithstanding that it is useful to note that in this case:
a)the applicant applied for a review of a delegate’s refusal of a protection visa application for which the applicant had already applied to the Department. It must necessarily be taken that she had some understanding of what the first respondent needed to be satisfied to grant her the relevant visa;
b)the delegate’s decision refusing the applicants’ application had been received. It set out the relevant matters requiring attention by the applicants and they had responded to it;
c)the applicants’ representative stated that he had already explained the definitions to his client and the applicant agreed that she already knew of the requirements to meet the definition of a refugee person.
The applicant argues that “Overall, the provision of a “real and meaningful” invitation, pursuant to s 425 of the Act, has not been afforded to the First applicant.” That is said because firstly, matters of significance were overlooked because of translation errors. Secondly, matters that were considered were infected by material errors of translation error. Finally, there are procedural fairness issues enlivened even in the absence of a causative impact and when considering the totality of matters.
I have dealt with the translation errors and other suggested material errors above. In my view those matters, when taken together with an overview of the hearing as a whole, do not suggest a lack of procedural fairness in the conduct of the proceedings by the tribunal. The following matters tell against such a conclusion:
a)the essential elements of the first applicant’s evidence and claims were conveyed to the tribunal;
b)as the first respondent submits, none of the matters of interpretation to which the applicant has referred to, relate to or point to the harm, which was claimed to have been suffered by her or which would be reasonably foreseeable should she return; and
c)the applicants were represented at the hearing by a representative who actively participated in the hearing. The representative took the opportunity to bring to the tribunal member’s attention difficulties with the first interpreter. There are other occasions where the transcript demonstrates the applicants’ representative assisting or correcting the interpretation.
In her affidavit filed in support of the application, the applicant complains about the stop start nature of the proceedings and “constant interruptions”. However, what the transcript reveals is that the tribunal member was alive to the requirement that the applicant have a fair hearing. When the issue with the recording equipment was identified at the commencement of the hearing, the applicant was offered an adjournment, which she declined. When the issue with the interpreter was raised, it was dealt with in an appropriate and effective way.
In my view, there is no want of procedural fairness arising from the matters identified by the applicants. No jurisdictional error is identified by this ground of review.

CONCLUSION

I accept the first respondent’s submission that the tribunal gave a detailed decision in which it considered all of the matters and submissions raised by the first applicant. The tribunal did not accept that the claimed matters of harm or persecution existed and consequently that the applicant did not face a real chance of serious harm for a Convention reason when returning to Vietnam. In my view the tribunal’s proceedings were procedurally fair to the applicants.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 December, 2015.

Deputy Associate:

Date: 24 December 2015.

[2015] FCCA 3490

24 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction