CKV16 v Minister for Immigration
[2018] FCCA 1449
•7 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1449 |
| Catchwords: MIGRATION – Application for judicial review – conduct of interpreter – whether there was fraud on the applicant – whether there was jurisdictional error – no fraud on the applicant – no jurisdiction over decision of the delegate – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), Pt. 7AA; ss.425, 473CC, 473DA(1), 473DC, 473DD |
| Cases cited: AFK16 v Minister for Immigration [2016] FCCA 1826 [12] BZAID v Minister for Immigration and Border Protection [2016] FCA 508 DBE16 v Minister for Immigration [2017] FCCA 487 [63] Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 (1999) 92 FCR 6 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 |
| Applicant: | CKV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1870 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 16 November 2017 |
| Date of Last Submission: | 16 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application filed 2 September 2016 be dismissed.
The Applicant pay the First Respondent’s costs as agreed by the parties and in the event that there is no agreement, to be fixed by the Court upon receipt of written submissions by each party not exceeding
2 pages (each) to be filed by 21 June 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1870 of 2016
| CKV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed on 2 September 2016 and amended on
1 May 2017, the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated
15 August 2016 that affirmed a decision of the delegate of the First Respondent to refuse to grant the Applicant a Protection visa.
The grounds of review are as follows:
1. The decision of the Independent Assessment Authority (the IAA) was affected by jurisdictional error in that it was unable to carry out its statutory task as required by s.473CC [of the Migration Act 1958 (Cth)], namely to review the fast track reviewable decision made by the delegate.
Particulars
(a) The Applicant was deprived of the opportunity to properly present his case to the delegate during the interview, which took place on 19 February 2016;
(b) The Applicant refers to and relies on the affidavit filed in this proceeding by himself, his sister-in-law Ms Abir Ali, and by the NAATI level 3 interpreter Ms Feyrouz Khayat, which annexes an amended transcript of the interview.
(c) The intervention and influence of the interpreter caused the Applicant to alter his evidence, thereby creating confusion, and a statement which was inconsistent with an answer given in his Entry Interview on 23 April 2013;
(d) The answers as recorded in English during the interview resulted in the IAA making an adverse finding regarding the Applicant’s credit.
2. The decision of the Independent Assessment Authority (the IAA) was affected by jurisdictional error in that it was unable to carry out the statutory task as required by s.473CC, namely to review the fast track reviewable decision made by the delegate.
Particulars
(a) By reasons of a series of errors in interpretation, as set out in the affidavit of Ms Feyrous Khayat and the amended transcript of the hearing, the Applicant was unable to properly present his claims to the delegate;
(b) The decision of the IAA was based on the evidence which the Applicant had given, or not given, to the delegate, through the medium of the interpreter;
(c) The delegate failed to ensure that the interpreter did not engage in conversation with the Applicant which was not interpreted into English;
(d) The delegate failed to ensure that the interpreter did not answer a question or questions herself, without a response from the Applicant;
(e) The errors and omissions in interpreting went to important aspects of the Applicant’s claims;
(f) But for those errors and omissions, the decision of the IAA may have been different.
Background
The Applicant is a national of Lebanon. He applied for a Safe Haven Enterprise Visa (SHEV) on 28 September 2015. His claims for protection are summarised by the Authority at [3]:
He is a national of Lebanon and an ethnic Arab Sunni Muslim. He resided in northern Lebanon’s Akkar District.
He and his cousin became involved in assisting Syrian refugees. As a consequence of this, Hizballah came to his house and asked his mother about him on multiple occasions. She always said that she did not know where he was. He remained in hiding and departed Lebanon in March 2013. He departed lawfully from Beirut’s international airport on his own passport. Hizballah continue to come to the family home searching for him.
He fears that if he returns to Lebanon he will be tortured and killed by Hizballah.
He cannot rely on the Lebanese government for protection because it is controlled by Hizballah.
Hizballah have a very big network and will find him wherever he goes in Lebanon.
On 19 February 2016 the Applicant attended an interview with the delegate. Ms Raphael, a NAATI accredited interpreter in the Arabic language provided interpreting services at that interview. There is competing evidence in relation to the nature of the interpreting services provided services provided by Ms Amal Raphael, a NAATI accredited interpreter.
On 1 June 2016, the delegate refused to grant the Applicant a Protection visa. The delegate formed an adverse view of the Applicant’s credibility, an aspect of which was expressed at [31] of its decision:
It is concerning that on one occasion the Applicant also appeared to adjust his evidence to suit the occasion when I asked him at an early stage of the interview if he knew any individuals or had family members that were connected to Hizballah, which he responded that he did not. I then put to the Applicant for comment that in his entry interview with the department on Christmas Island he had declared that he had a maternal uncle who is an official in Hizballah, and that he was the one who had warned him that Hizballah were after him, which was markedly different to which he was telling me during the interview. I found that the Applicant provided a confused response to this inconsistency, and then stated that his aunt did marry a man who is a Hizballah boss in a nearby village and is a Shi’a community. The Applicant has not raised any claims in connection with this nearby village.
In considering the Applicant’s individual circumstances, the delegate summarised the Applicant’s claims at [32] of the decision as follows:
a)Neither the Applicant nor any of his family members have been involved in politics, or belonged to any groups or organisations that are actively opposed to the Lebanese or Syrian governments;
b)The Applicant is not involved with any groups that are perceived to be against the aims and objective of Hizballah or any other militant organisation in or outside Lebanon;
c)The Applicant has not attended any protests or is involved with any groups or organisations involved in sectarian violence;
d)Beyond the events in the months that preceded the Applicant’s departure from Lebanon in 2013, the Applicant has not claimed to have had any other previous adverse encounters with Hizballah, or experienced any other difficulties previously in Lebanon; and
e)The Applicant has not experienced any harm in Lebanon.
On 16 June 2016, the Department notified the Applicant of the delegate’s decision. The Authority also wrote to the Applicant on this date and acknowledged that the delegate’s decision had been referred to it for review. The letter stated that:
[t]he IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.
The Applicant did not provide any new information to the Authority, nor did he seek a fresh interview by the Authority.
On 15 August 2016 the Authority affirmed the delegate’s decision.
The Applicant made an application to this court on 1 September 2016.
Authority Decision
The Authority’s findings are set out from [17] – [22] of its decision. These findings are accurately summarised at [9] – [10] of the Applicant’s submissions:
…The IAA accepted that the Applicant and his cousin had delivered food and other supplies to the Syrian refugees in the two to three months before his departure (in March 2013) [17]
(CB 602). It also accepted that Hizballah was opposed to the arrival of the predominantly Sunni refugees from Syria. However the IAA found that it was implausible that Hizballah would have been interested in the Applicant for his relatively low level role [18] (CB 602-603).
The IAA found at [19] that the Applicant’s account of going into hiding was implausible. Importantly for present purposes it said at [20]-[21]
[20] Further to this, the Applicant’s SHEV interview account of how he became aware of the extent of Hizballah’s interest in him differed significantly from the account he provided at his April 2013 entry interview where he stated that he was told by a maternal uncle in Hizballah. Having listened to the audio record of Applicant’s entry interview I am satisfied that the Applicant did state that he was warned to leave the country by the Hizballah member. At the SHEV interview this role was played by Mr H. I accept that the Applicant did indicate at the SHEV interview that his aunt had a connection to a man in Hizballah. But the Applicant gave no indication that this man alerted him that Hizballah know about his activities and that he needed to leave the country. Nor did he account for why he said this at his entry interview but not at his SHEV interview. At the SHEV interview the Applicant went on to state that his mother had unsuccessfully asked through his aunt for the Hizballah member’s assistance. If true, this would be a significant matter. Yet the Applicant made no reference to this communication earlier in the interview when he was asked if he had a relative in Hizballah, and he raised this claim only after his entry interview evidence was put to him.
[21] I consider that the vague and inconsistence evidence provided by the Applicant in the above regards seriously undermines the credibility of his claim to have been pursued by Hizballah. I do not accept that he has ever been of interest to Hizballah.
Issue
The issue on review is whether the Authority was unable to carry out its statutory task of reviewing the delegate’s decision due to the alleged conduct of the interpreter who assisted the Applicant at his interview with the delegate on 19 February 2016.
The Applicant’s argument in relation to interpreting is two-pronged, with the first ground being that the interpreter intervened and influenced the Applicant by causing him to avoid saying that he had a maternal uncle who was in Hizballah and to instead cite a more distant relative as being involved in Hizballah. The Applicant submits that this amounts to fraud.
The Applicant’s second ground is that there were errors in the interpreting such that the Applicant’s claim was not adequately put forward, and/or adverse findings on credit were made on an erroneous understanding of the Applicant’s evidence.
Evidence and Finding
The Applicant relies on the following evidence:
a)his affidavit affirmed 1 May 2017;
b)
the affidavit of his sister-in-law Ms Abir-Ali affirmed
1 May 2017; and
c)the affidavit of Ms Feyrouz Khayat, a NAATI level 3 interpreter in the Arabic language affirmed 19 April 2017.
The First Respondent relies on an affidavit of Ms Amal Raphael sworn 1 June 2017 and an affidavit of Ranja Zayed affirmed 22 June 2017.
There is competing evidence as to whether the interpreter, Ms Raphael, made certain gestures towards the Applicant during the interview which the Applicant submits indicated that he should give certain responses to the questions posed by the delegate. At [5] – [6] of his affidavit he notes:
During the interview, the Hearing Officer asked a question to the effect ‘do you have family members involved with any political parties or militants groups such as Hizballah? Do you have any family members?
I commenced answering this question intending to explain that my Aunty, my mum’s sister, was married to a Shi’ite man who is in Hizballah. When I mentioned my mum’s sister, the interpreter raised her eyebrows at me. In Arabic culture, this indicates ‘no’.
I understood from her facial expressions that I should not say that my mum’s sister’s husband was in Hizballah. I became distracted and worried and felt pressured to change my answer. I then changed my answer. I tried to convey words to the effect of ‘my mum’s sister’s husband has a brother or a relative with Hizballah, I see them all the time, and they are responsible for the area. He is not my relative, no.’ The interpreter nodded her head slightly and I understood this to mean that this was somehow a better answer.
Further at [12] the Applicant notes:
The body language of the interpreter towards me was obvious to me during my interview. At times she would raise her eyebrows or frown and even nod her head. I found this to be disconcerting and unsettling.
Ms Abir-Ali, who was present in the interview with the Applicant, gave evidence in relation to her impression of the interpreter’s body language during the interview, and specifically when the Applicant was asked about his family’s connections to Hizballah. At [7] of her affidavit she notes:
Dib commenced answering this question by explaining that his Aunty, his mum’s sister, was married to a Shi’ite man. When he mentioned his mum’s sister, the interpreter raised her eyebrows at him and met his eyes. In Arabic culture, this is a common way of indicating ‘no’. To me, she was clearly indicating that he should not say this. Dib was not looking at me at the time. I was taken aback by her facial reaction…Sometimes she frowned, nodded a little or raised her eyebrows. I understood her raising her eyebrows to mean that he should answer in the negative.
The evidence of Ms Abir-Ali and the Applicant is contradictory to the evidence of Ms Raphael who deposes at [6] of her affidavit that she remembered the exchange in relation to the Applicant’s aunt’s husband. She goes on to note:
…I do not recall raising my eyebrows, and also did not observe the Applicant reacting in any unusual way to me. I have no knowledge of the Applicant’s assertion that in Arabic culture the raising of eyebrows means ‘no’. In my experience, ‘no’ is conveyed by nodding the head from side to side.
A further issue is whether the interpreter made statements to the Applicant during the break. The Applicant deposes at [10] of his affidavit that while the Applicant was alone with the interpreter in the room, the interpreter said words to the Applicant to the effect of ‘it is not good for your protection claim to say that you have a close relative in Hizballah. I tried to fix everything for you and I’ll try to fix it for you if you make a mistake.’
Ms Raphael deposes at [7] – [8] that she was not in the room alone with the Applicant during the break. She notes:
The interviewer decided to have a break during the interview. When the interviewer left the room, I also left the room. All interpreters are required by the Department to leave the room whenever there is a break so that they are not alone with the Applicant. This has been a long-standing requirement the Department has of interpreters.
When the interviewer came back, I also re-entered the room with the interviewer. I was not alone with the Applicant in the interview room at any time.
Whilst reasonably lengthy, it is necessary to set out the relevant parts of the authority’s decision as each of the parties seeks to emphasise different parts of those reasons.
14.The Applicant arrived in Australia in March 2013. At his April 2013 entry interview the Applicant said that he and his cousin had taken food to the border with Syria because they were supporting the revolution. The Applicant was not asked what he meant by this. The Applicant also stated that he and his cousin had operated a truck to distribute foodstuffs to the town of Wadi Khaled on the border with Syria. Hizballah started to come looking for him and his cousin and that he was told by a maternal uncle, who is Shia and a Hizballah official that Hizballah knew he was supporting the Syrian revolution and he needed to leave the country. At the SHEV interview the Applicant was asked if he was ever involved with any political or militant groups, or if he had ever publicly opposed Hizballah or the Syrian government. He answered no to these questions and stated that the only movement he was ever involved in provided support to Syrian refugees. The Applicant said he had a distant relative in Hizballah, his aunt's husband's relative, and that this person was not a member of his family and he did not know his name. He was a man who controlled a nearby Shia village and everyone was scared of him. Later in the SHEV interview, it was put to the Applicant that at his entry interview he said he had a maternal uncle who was an official in Hizballah who told the Applicant that Hizballah knew he was supporting the Syrian revolution and that he need to leave the country. It was put to the Applicant that this seemed different to what the Applicant was now claiming. The Applicant said that his mother's sister was married to a man who had a family member who was a boss in Hizballah. The delegate put it to him that he had said this was a man in a nearby village. The Applicant said that this is the man he meant, who he had mentioned before, and that this man was sending the people to catch whoever Hizballah wanted. His mother had sent a request through her sister asking this man if there was anything that he could do, but the Hizballah member said he could not do anything.
20.Further to this, the Applicant's SHEV interview account of how he became aware of the extent of Hizballah's interest in him differed significantly from the account he provided at his April 2013 entry interview where he stated that he was told this by a maternal uncle in Hizballah. Having listened to the audio record of Applicant's entry interview I am satisfied that the Applicant did state that he was warned to leave the country by the Hizballah member. At the SHEV interview this role was played by Mr H. I accept that the Applicant did indicate at the SHEV interview that his aunt had a connection to a man in Hizballah. But the Applicant gave no indication that this man alerted him that Hizballah knew about his activities and that he needed to leave the country. Nor did he account for why he said this at his entry interview but not at his SHEV interview. At the SHEV interview the Applicant went on to state that his mother had unsuccessfully asked through his aunt for the Hizballah member's assistance. If true, this would be a significant matter. Yet the Applicant made no reference to this communication earlier in the interview when he was asked if he had a relative in Hizballah, and he raised this claim only after his entry interview evidence was put to him.
21.I consider that the vague and inconsistent evidence provided by the Applicant in the above regards seriously undermines the credibility of his claim to have been pursued by Hizballah. I do not accept that he has ever been of interest to Hizballah.
22.In December 2015 DFAT reported that Hizballah exercises substantial control over the security of Beirut's Rafic Hariri International Airport (the international airport is located in an area of Beirut where Hizballah has substantial influence). The Applicant's claim that Hizballah did not exercise control over the airport in March 2013 at the time of his departure is not persuasive. Hizballah's control over the southern suburbs of Beirut surrounding the airport is longstanding, as is their capacity to capture persons of interest in this area. 23 Hizballah was a key member of the March 8 coalition which governed Lebanon between July 2011 and March 2013; and the opposing March 14 coalition was unable to successfully form government until February 2014. That the Applicant was able to depart Beirut's international airport on his own passport in March 2013 without complication reinforces my conclusion that the Applicant has not been of adverse interest to Hizballah.
Refugee assessment
23.Section SH( 1) of the[Migration Act 1958 (Cth)] provides that a person is a refugee if, in a case where the person has a nationality, he or she is outside the country of his or her nationality and, owing to a well founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or in a case where the person does not have a nationality -is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
The Applicant focused on page 45 of the transcript attached to Ms Khayat’s affidavit. That passage provided:
60.After a break in the interview, when the Applicant was alone with his sister-in-law, he returned to the subject in the following way at T 53 line 20 and following:
HEARING OFFICER: Okay.
MR ALI'S ANSWER: When I asked my mum to ask her sister to ask her husband if he could do anything to help, he said there is nothing I can do. It is serious and he needs to escape. That is why I left Lebanon straight away
INTERPRETER'S INTERPRETATION OF MR ALI'S ANSWER DURING INTERVIEW: When my mum ask her sister to talk to this man to do something, he said - the answer was, "No, he cannot do anything. It's out of his hands." Let me just repeat what I said before. My sister talked to her sister to talk to her husband - yes, that's what she asked - the answer she got. There is nothing. It's out of his hands.
HEARING OFFICER: Okay.
MR ALI: That's why I know they are - I found out they are really serious about this because they're constantly coming to my place looking for me. When I mention the way I came here, I know there is danger on the way, but I have no choice, just to do it this way, I come this way. I wasn't sure really that I can survive this trip.
HEARING OFFICER: Is there anything further you wanted to say? So, Abir, is there anything that you wanted to raise?
MS ALI: Well, I think Dib has covered some points that we spoke about. The only issue I've only had is actually there was just a bit of misinterpretation of a few things.
61.The passage at T 45 line 35 is important because the Applicant was there saying, albeit for the first time, that the person in Hizballah was married to his mother's sister, yet, consistent with the Applicant's affidavit, the interpretation to the delegate was still that this person was related to the sister's husband (i.e. more distant than the Applicant was in fact saying).
62.It is submitted that the effect of the above was to cause the IAA to identify an inconsistent statement which, unknown to it, had come about in circumstances not of the Applicant's own making. Although the position was finally clarified after the break, not surprisingly, the damage was done in terms of credit. (This was on a common basis in decisions of this kind, namely that the Applicant appeared to tailor his evidence only when confronted with the prior inconsistent statement.) However, the benevolent explanation is that Applicant was put off by the interpreter earlier in the interview from giving the correct position. Had he done so, the inconsistency would not have existed and the IAA may have come to a different conclusion on a matter which was part of its reasoning process towards an overall adverse conclusion.
The Applicant’s Submissions
The Applicant submits that although it is not suggested that there was any nefarious motive attributable to the interpreter, and indeed that the motives of the interpreter may have been well-intentioned, the types of fraud are infinite. The Applicant submits that the interpreter may have influenced him to give certain evidence to the delegate at the interview by making certain alleged gestures at the interview and by making a statement to the Applicant during a break in the interview. It is submitted that the effect of the interpreter’s conduct was to cause the Applicant to make an inconsistent statement which is given rise to a credit finding adverse to the Applicant. The Applicant’s submissions for the second ground are to the effect that because of the failure to correctly interpret the Applicant’s answers he was left in a position of disadvantage because the question was asked of him was not correctly interpreted and the answer that he gave was not correctly interpreted.
The Applicant, at [53] of their submissions, relied upon BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at 50–53 where Edelman J (as he then was) said:
50. In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, 19 [29], Kenny J said of an earlier version of s 425 that:
Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
51. That statement has been described as the “seminal” statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Border Protection [2013] FCA 936 9] (Jacobson J).
52. The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K “Working with Interpreters: Judician Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:
(1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant's case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;
(8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repletion or context.
53. The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215[9]):
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in tum involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
The First Respondent’s Submissions
The submissions of the First Respondent in relation to ground one may be summarised as follows:
a)
fraud is a serious allegation and the Applicant must explain specifically and with particularity what was said to be fraudulent, how it was fraudulent and how it was acted upon:
SZFDE v Minister for Immigration and Citizenship(2007) 232 CLR 189 at [41];
b)the Applicant has not explained how the interpreter’s alleged conduct (which involved the interpreter “influencing” the Applicant to give certain evidence to the delegate) could amount to fraud on the Authority (or the delegate);
c)dishonesty or bad faith is a necessary ingredient of fraud[1] in the Respondent’s submissions. There was no evidence of fraud;
d)in order to establish jurisdictional error by the Authority as a result of alleged “fraud” by Ms Raphael the Applicant must establish that:
i)Ms Raphael committed a fraud “on” the Applicant; and
ii)the fraud on the Applicant also had the immediate consequence of stultifying all subverting the performance of the Authority’s function;
e)whether or not the Applicant was “influenced” by Ms Raphael’s alleged gestures or what she said during the break, it was the Applicant who gave the evidence and it was the Applicant’s conduct, not Ms Raphael’s conduct, that had the immediate consequence of stultifying or subverting the performance of the Authority’s function.
[1] First Respondent’s submissions 8 [12].
The First Respondent’s submissions in respect of the second ground, which we relates to errors of interpretation, are to the effect that:
a)the Court has no jurisdiction to deal with the decision of the delegate
b)that even if the delegate’s decision is affected by jurisdictional error by reason of procedural unfairness it does not follow that the authority made a jurisdictional error.
Consideration
In relation to the first ground, the Court has no jurisdiction in relation to the decision of the delegate[2] and the Court has no power to quash the decision of the delegate on the basis that his decision was affected by third-party fraud.
[2] Migration Act 1958 (Cth) s. 476(4)(c).
Even if the delegate’s decision is affected by jurisdictional error it does not follow that the Authority made a jurisdictional error. The Applicant was able, if they wished, to request the Authority to accept and consider new information on the review. The Applicant did not request new information relating to the conduct of Ms Raphael and did not request a fresh interview. This was notwithstanding that the delegate’s decision had put the Applicant on notice about the issue of the inconsistent evidence about the identity in relation of the Hizballah man. Even if the Applicant’s factual allegations regarding the conduct of Ms Raphael are taken at the highest, it cannot be accepted that the conduct of Ms Raphael in the interview with a delegate had the immediate consequence of stultifying the Authority’s function.
Further, having seen Ms. Raphael give evidence and be cross-examined, I accept that she was disinterested in the Applicant’s interview before the delegate and did not engage in fraud as alleged by the Applicant. It is my view that she simply acted as an interpreter without any desire to change or influence his answers to questions.
Ground one is not made out.
In relation to the second ground, by reason of the operation of
s. 473D(A)(1) of the Migration Act 1958 (Cth) (‘the Act’) the common law principles in relation to natural justice are inapplicable.[3] There is no duty on the Authority under part 7AA of the Act that corresponds to s. 425 of the Act.[4]
[3] AFK16 v Minister for Immigration [2016] FCCA 1826 [12].
[4] DBE16 v Minister for Immigration [2017] FCCA 487 [63].
In circumstances where the Authority has the capacity to receive and, in appropriate circumstances consider, new information given by an Applicant (s. 473DC and s. 473DD of the Act) and where the Applicant raised no complaint at all with the Authority about the quality of the interpreting in the delegate interview, the Authority cannot be said to have made a jurisdictional error by failing to exercise the powers available to it to cure any alleged defect in the interview. This is because the defects known to the Applicant were not known to the Authority and not identified by the Applicant to the Authority.
Even if the principles from the common law or s. 425 of the Act applied, the Applicant has not established that the quality of the translation provided during interview with the delegate was so poor on the subject of this hearing that the Applicant was denied a hearing at all.
Ground two is not made out.
Conclusion
For the reasons given above, I find that the grounds of review have not been made out and the application must be dismissed accordingly.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 7 June 2018
10
2