CRN17 v Minister for Immigration and Border Protection
[2023] FedCFamC2G 157
Federal Circuit and Family Court of Australia
(DIVISION 2)
CRN17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 157
File number(s): MLG 1289 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 3 March 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection (Class XA) visa – consideration of whether Tribunal failed to consider all integers of applicant’s claim to fear harm due to imputed political opinion and claim to fear harm as a woman in Ethiopia – consideration of Tribunal’s adverse credibility findings – consideration of whether mistranslations made by interpreter at Tribunal hearing resulted in Tribunal failing to carry out its statutory task – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 414, 499 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
AVQ15 v Minister for Immigration and Border Protection (2018) ALR 227
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 163 Date of last submission/s: 6 September 2022 Date of hearing: 6 September 2022 Place: Melbourne Counsel for the Applicant: Mr J Stoller Solicitors for the Applicant: Holding Redlich Counsel for the First Respondent: Mr J Barrington Solicitors for the First Respondent: Australian Government Solicitor ORDERS
MLG 1289 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRN17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
deputy chief JUDGE MERCURI
DATE OF ORDER:
3 march 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 19 June 2017 be dismissed
2.The applicant pay the first respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 27 May 2017. By its decision, the Tribunal affirmed a decision of a delegate of the (then) Minister for Immigration and Border Protection (‘the Minister’) to refuse the applicant’s application for a Protection (Class XA) visa (‘protection visa’).
Background
The applicant is a citizen of Ethiopia of Muslim faith, who arrived in Australia on a sponsored family visitor visa on 22 February 2013.[1]
[1] Court book at page 147.
Application for protection visa on 20 August 2013
On 20 August 2013, the applicant applied for a Protection (Class XA) visa.[2]
[2] Court book at page 147.
In response to a question about why she left Ethiopia in her application form, the applicant claims that she came to Australia to visit family and shortly after her arrival, she received news that her family house in Ethiopia had been raided, her property was confiscated and her family had been interrogated by agents of the Ethiopian government regarding their Muslim faith.[3]
[3] Court book at page 116.
The applicant goes on to describe an alleged incident on 13 July 2012, in which some of her family members had been arrested, along with other worshippers, whilst attending at the local Awolia Mosque. She says that shots were fired and tear gas was used on the attendees.
She explains that following this arrest, her fiancé and other family members have been subjected to various forms of ‘harassment, torture and abuse’ from government agents, including a raid on her family home and confiscation of some of her property.[4] The applicant also says that her family has been subjected to ‘several hours of interrogation’ relating to being a member of the Muslim religious faith. She states that she is concerned for her family members who have been arrested, as their whereabouts are unknown and she has no information in relation to their current wellbeing.[5] She also says that a summons has been issued for her arrest.[6]
[4] Court book at page 116.
[5] Court book at page 117.
[6] Court book at page 118.
The applicant further claims that she has become a ‘prime suspect’ of organising anti-government campaigns and fears that she will receive similar treatment to that of her family members if she were to return to Ethiopia. She claims that she and her fiancé in Ethiopia had been working closely with a ‘committee that has been formed to act for the rights and freedom of peace loving Muslims’ and that they have been labelled as extremists as a result of this connection.[7]
[7] Court book at page 118.
The applicant attended two interviews with a delegate of Minister, the first on 25 August 2014 and the second on 29 September 2014. The delegate’s decision record dated 29 January 2015 indicates that towards the conclusion of the first interview, the applicant was asked to provide a chronological timeline of the events and experiences that form the basis of her claims for a protection visa.[8]
[8] See Court book at page 153.
After the first interview with the delegate, the applicant submitted a statutory declaration dated 20 September 2014.[9] In this statement, the applicant provides further submissions in support of her application, including that as a woman without a male relative in Ethiopia, she will be in danger of ‘victimisation, harassment or serious abuse’ because of her gender.[10]
[9] Court book at pages 126 to 134.
[10] Court book at page 126.
Additionally, in the September 2014 statement, the applicant clarifies that the 13 July 2012 incident related to a mass protest at the Awolia Mosque which she attended along with some of her family members, following which she was arrested, along with her father and fiancé, although her siblings were able to escape. She says that she was detained in a detention facility for two months, during which time she was subject to ‘extreme beatings and torture’.[11]
[11] Court book at page 129.
As stated, the applicant then attended a second interview with the delegate on 29 September 2014. The delegate’s decision record records that the applicant was given time following this interview to respond to the adverse information and credibility concerns put to her at the second interview.[12]
[12] Court book at page 152.
In response, the applicant provided a further statutory declaration dated 7 October 2014.[13]
[13] Court book at pages 136 to 137.
Decision of the Minister’s delegate on 29 January 2015
On 29 January 2015, the delegate refused to grant the applicant a protection visa on the basis that they did not find the applicant’s claims to be genuine or credible.[14]
[14] Court book at page 157.
In the delegate’s decision record, the delegate refers to various inconsistencies in the applicant’s evidence, including in relation to her father’s political profile,[15] her personal involvement or perceived involvement in opposing the government’s religious activities,[16] her alleged familial relationship with a prominent Muslim religious activist, Mr Yasin Nuru,[17] and the alleged events that occurred in Ethiopia following her arrival in Australia.[18]
[15] Court book at page 162.
[16] Court book at page 164.
[17] Court book at page 165.
[18] Court book at pages 165 and 166.
The delegate also addressed the applicant’s claims to fear harm as a result of being a woman without the protection of a male relative.[19]
[19] Court book at page 167.
Application for review at Tribunal on 15 February 2015
On 15 February 2015, the applicant applied to the Tribunal for review of the delegate’s decision.[20]
[20] Court book at pages 172 to 173.
On 6 March 2017, the applicant attended a hearing before the Tribunal. The applicant was represented by her migration agent and had the assistance of an Amharic interpreter. The hearing record indicates the applicant’s partner also appeared at the hearing as a witness.[21]
[21] Court book at page 192.
The hearing record also indicates that the applicant was invited to provide further information by 20 March 2017. On 20 March 2017, the applicant provided further written submissions in the form of a statutory declaration dated 18 March 2017, as well as a letter from her doctor.[22]
[22] Court book at page 195 and following.
On 22 March 2017, the Tribunal invited the applicant, by letter, to attend a second hearing on 4 May 2017 as it was ‘unable to make a favourable decision’ based on the material before it. In this letter, it was noted that the applicant’s partner attended the previous hearing, but that evidence had not been taken from him. The applicant’s partner was therefore asked to attend the second hearing as he may be requested to give evidence.[23]
[23] Court book at page 204.
A letter was also sent to the applicant’s migration agent on the same date inviting him to provide a written submission setting out all claims made and maintained by the applicant by 27 April 2017.[24]
[24] Court book at page 201.
On 3 May 2017, the applicant provided a letter dated 5 April 2017 from her treating psychologist regarding her mental health.[25]
[25] Court book at page 205.
On 4 May 2017, the applicant attended at the Tribunal for the second hearing. The applicant was again represented by her migration agent and had the assistance of an Amharic interpreter. The applicant’s partner also appeared at the hearing and gave evidence as a witness.[26]
[26] Court book at page 208.
The hearing record indicates that the applicant was invited to provide further information by 18 May 2017. On 18 May 2017, the applicant provided a further letter from her treating psychologist regarding her mental health.[27]
[27] Court book at page 211.
On 22 May 2017, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.[28]
[28] Court book at page 216.
Tribunal decision
The Tribunal’s decision record dated 22 May 2017 is at pages 218 to 230 of the court book.
Paragraph [5] of the decision record records complaints made by the applicant in relation to her interpreter 46 minutes into the first Tribunal hearing:
5.After 46 minutes of the Tribunal hearing the applicant stated that she wanted a new interpreter. I asked her whether she was unhappy with the interpreter to which she affirmed that she was. The representative interjected and stated, ‘Member, I am very confident in this [inaudible] he is our very best [inaudible] twenty years or more. I will talk to her because we want [inaudible] to proceed.’ I responded that ultimately the applicant must be agreeable to the interpreter. The representative suggested that she may have reacted to his earlier interjection over the translation of the interpreter. He spoke with the applicant on the matter and the applicant said that she was happy to proceed.
Paragraphs [7] to [21] of the decision record outlines the relevant legislative framework under the Migration Act 1958 (Cth) (‘the Act’) pertaining to the decision.
At paragraphs [22] to [24], the member discusses the applicant’s mental health in the context of whether that was a factor that may have influenced her ability to provide evidence. The Tribunal considered the two letters provided from the applicant’s psychiatrist. Based on the letters provided and the member’s interactions with the applicant over the course of the two hearings, the Tribunal determined that the applicant ‘was lucid and able to meaningfully participate in the hearing’ and ‘would not require further mental health support in the reasonably foreseeable future’,[29] such that the member did not consider it necessary to consider the adequacy of those services in Ethiopia in the event that she returned.
[29] Tribunal decision record dated 22 May 2017 at paragraph [24].
The member then turned to consider the applicant’s claims and the evidence presented.
At paragraph [41], the member noted the inconsistency in the applicant’s various statements in relation to the alleged protests on 13 July 2012 and subsequent arrests. In particular, the member noted the inconsistency in the applicant’s evidence regarding the date of the protest and the circumstances in which she says she and her family members had been arrested.
At paragraph [46] of the decision record, the Tribunal ultimately concluded that:
46.For the reasons of the applicant speaking to the Tribunal at a time when she claims to have been in prison, for the inconsistency of her claims and the differences with country information I do not accept that the applicant was at a protest in July nor that she was arrested and imprisoned for two months.
At paragraphs [47] to [48], the Tribunal turned to consider and ultimately dismiss the applicant’s alleged relationship with Mr Nuru, who she claimed to be her first cousin, as well as Mr Mohamed Shafi, another prominent figure associated with the protests of July 2012, who she claimed to be her former fiancé.
At paragraph [49], the Tribunal also rejected the applicant’s claims that her family members had been arrested and had disappeared following the raid by security forces on their home.
At paragraphs [54] and [55], the Tribunal accepted that the applicant was of the Amhara ethnic group, but did not accept that she faced a real chance or real risk of harm based on her ethnicity.
At paragraphs [56] to [60], the Tribunal also accepted that the applicant may become a single mother were she to return to Ethiopia with her children and without her fiancé, and may also experience some level of official and societal discrimination as a result. However, the Tribunal did not consider that this rose to the level of ‘serious or significant harm’ required.[30]
[30] Tribunal decision record dated 22 May 2017 at paragraph [60].
In respect of the applicant’s claims to fear harm as a result of her imputed association with Muslim anti-government campaigners, the Tribunal concluded at paragraph [64]:
64.Having found that the applicant has not participated in protests in Ethiopia and there being no evidence presented that the applicant has participated in any political activity in Australia I find that the applicant does not face a real chance or a real risk of harm for being Muslim and/or having a political opinion imputed upon her for that reason.
Likewise, for similar reasons, at paragraph [67], the Tribunal did not consider that the applicant would face a real chance of harm or a real risk of significant harm in the foreseeable future as a result of returning to Ethiopia as a failed asylum seeker.
Finally, at paragraphs [68] to [69], the Tribunal considered the totality of the circumstances faced by the applicant. Ultimately, the Tribunal was not satisfied that the applicant satisfied the criteria in sections 36(2)(a) or 36(2)(aa) of the Act.
Proceedings in this court
On 19 June 2017, the applicant filed an application for judicial review of the Tribunal’s decision to this court, in addition to an affidavit affirmed by her solicitor at the time.
On 6 February 2018, orders were made by Registrar Allaway listing the matter for hearing before Judge A Kelly on 22 September 2020. Orders were also made for the filing of trial material, including court books and written submissions.
The hearing did not proceed before Judge A Kelly on 22 September 2020. The parties were sent a further Notice of Listing by the court on 10 September 2021, listing the matter for final hearing before Judge Davis on 10 December 2021.
On 12 November 2021, orders were made by consent amending the timetable for the filing of material as set out in the February 2018 orders. This timetable was further amended by consent by orders dated 18 November 2021.
On 10 December 2021, the matter came before Judge Davis for hearing. His Honour subsequently reserved his judgment.
On 18 May 2022, the parties were sent a Notice of Listing by the court, advising that the matter had been listed for directions before Chief Judge Alstergren on 24 May 2022.
On 24 May 2022, orders were made by his Honour Chief Judge Alstergren listing the matter for re-hearing before me on 6 September 2022. Orders were also made providing both parties with liberty to file and serve any further written submissions prior to the hearing.
Relevantly, the May 2022 orders contained the following notation:
(A)The transcript of the hearing on 10 December 2021 will be part of the material before the Court and the parties will be provided with a copy no less than 14 days before the hearing. The parties have liberty to make such further submissions or supplementary submissions as they please in relation to the transcript.
The matter came before me for hearing on 6 September 2022. Neither party had filed any further written submissions following the May 2022 orders.
Both parties confirmed that they had received a copy of the transcript of the hearing on 10 December 2021 before Judge Davis, and relied upon the oral submissions that they had made on that occasion, as recorded in the transcript.
Counsel for the applicant also confirmed that the applicant was content to rely upon the material currently before the court, namely, her amended application filed on 8 December 2021 and written submissions filed on the same date. The applicant also relies upon two affidavits sworn by her current solicitor, Mr Joseph Monaghan, dated 16 November 2021 and 17 November 2021. Finally, the applicant relies upon Ministerial Direction No. 56 made under section 499 of the Act.[31]
[31] Exhibit A.
Counsel for the Minister also confirmed that the Minister relies upon the Minister’s written submissions filed on 1 December 2021.
Grounds of review
By her amended initiating application, the applicant relies upon four grounds of review which are said to give rise to jurisdictional error.
Ground 1
By ground 1, the applicant submits that the Tribunal failed to properly consider all of the integers of her claim to fear harm as a result of an imputed political opinion, and in doing so, constructively failed to exercise its jurisdiction under section 414 of the Act.
It is well settled that a failure by the Tribunal to consider or properly deal with an argument, claim, or part of a claim, which is either clearly articulated or clearly arises on the material before the Tribunal, could constitute a failure by the Tribunal to exercise its review jurisdiction.[32]
[32] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42].
It is submitted for the applicant that her claim to fear harm due to her imputed anti-government political views and imputed status as a political activist contained a number of distinct integers, all of which were not considered.[33] It is submitted for the applicant that her claims that the authorities would consider her to be a political activist arose from the fact that:
(a)she had attended a protest and been arrested and detained;
(b)her family had been implicated in mobilising and organising ‘people to rise up’ ;[34]
(c)she had gathered ‘youngsters and…were collecting their names … collecting the name of the youngsters who were opposing the Al-Ahbesh’;[35] and
(d)she and her fiancé had been closely working with a Committee formed to act for the rights and freedom of peace loving Muslims and consequently have been labelled as activists and extremists.[36]
[33] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraphs [18] to [23].
[34] Court book at page 117.
[35] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3.
[36] Court book at page 118.
In addition, the applicant claims that she is also at risk due to her father’s political profile.[37]
[37] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [18].
It is submitted for the applicant that in order to properly consider her claims, the Tribunal was required to consider each integer set out at paragraph [54] above.[38]
[38] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [19].
The applicant says that the Tribunal did not do this, but rather, dismissed the applicant’s claims by merely considering whether she had attended a protest and been arrested as claimed, as well as whether she had a political profile in Australia.[39] The applicant further submits that the latter claim was not an issue raised by the applicant, and that the other matters raised by the applicant as reasons for her fearing harm were not addressed at all in the Tribunal’s reasons.[40] As such, it is submitted for the applicant that the Tribunal failed to consider the applicant’s claims and consequently fell into error.
[39] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [22].
[40] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [23].
In addition, the applicant further claims that the Tribunal failed to properly consider her claim to fear harm as a result of being labelled a political activist as a result of her relationship with Mr Nuru. It is submitted that in simply concluding at paragraph [47] of the Tribunal’s decision record that the applicant was not Mr Nuru’s cousin as claimed, it did not properly consider her claim, which was that she feared harm as a result of her actual or perceived relationship with Mr Nuru. In not doing so, it is submitted that the Tribunal failed to consider an aspect of her claim and therefore fell into error.
In response, it is submitted for the first respondent that:
(a)an inference that the Tribunal failed to consider an integer of the applicant’s claims ought not too readily be drawn ‘where the reasons are otherwise comprehensive and the issue has at least been identified at some point’;[41] and
(b)the Tribunal had very significant credibility concerns and it expressly identified the limited aspects of her evidence which it was prepared to accept.[42]
[41] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] to [47]; Minister’s Outline of Submissions filed on 1 December 2021 at paragraph [17].
[42] Minister’s Outline of Submissions filed on 1 December 2021 at paragraph [18].
In considering whether ground 1 is made out, it is important to consider what was required of the Tribunal in order to discharge its statutory task.
In ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court of the Federal Court relevantly said:
45.In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa …
…
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.
46.It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Applying these principles to the present case, it is clear from paragraphs [28] to [30] of the decision record that the Tribunal addressed how it was required to deal with the applicant’s credibility in assessing the claims made. Relevantly, at paragraph [29], the Tribunal correctly noted that:
29.In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. …
At paragraphs [31] to [46], the Tribunal considered the applicant’s claims relating to her attendance at a protest in July 2012 and her subsequent arrest. Having regard to its concerns about her credibility, the inconsistency in her claims, as well as the inconsistencies with country information, the Tribunal concluded at paragraph [46] that it did not accept that the applicant had been at a protest in July nor that she was arrested or imprisoned for two months.
At paragraph [47], the Tribunal summarises the applicant’s claims to be the cousin of Mr Nuru who was reportedly arrested in July 2012. At paragraph [48], the Tribunal considers the applicant’s claims regarding her then fiancé who was also associated with the July 2012 protests and who was arrested as a consequence. At paragraph [49], the Tribunal deals with the applicant’s claims that other members of her family were subsequently arrested and noted that as it did not find the applicant to be a credible witness, the Tribunal did not accept this claim. This conclusion was reasonably open to the Tribunal.
At paragraphs [50] to [52] the Tribunal then considered other aspects of the applicant’s claims. Relevantly, at paragraph [53] the Tribunal said:
53.Because of my finding on her credibility and the witness not knowing the applicant prior to her arrival to Australia I only accept that the applicant is Amharan, that she may become a single mother of two children were she to return to Ethiopia without her fiancé and that she is a Muslim.
Implicit in this finding is a finding that the Tribunal did not accept any other claims made by the applicant, including the remaining factual matters set out in paragraph [54] above.
Relevantly, at paragraphs [61] to [64], the Tribunal considered the applicant’s claims to fear harm as a result of her ‘imputed association with Muslim anti-government campaigners’. The conclusion at paragraph [64] that the applicant had not participated in protests in Ethiopia ought not be read as simply a finding that the Tribunal did not accept that the applicant had participated in the protest in July 2012. The findings at paragraph [64] must be read in context and without a keen eye to error.[43]
[43] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’).
When the Tribunal’s reasons are read fairly and as a whole, it is clear that the Tribunal understood the applicant’s claim to be broader than just based on her attendance at the July 2012 protest. At paragraph [25] of the decision record, the Tribunal summarised her claims as being ‘that she was involved in a protest as a part of her wider family’s commitment to supporting an alternative to the government supported voice for the Muslim community’.
Similarly, at paragraph [63] of the decision record, the Tribunal notes that the applicant again clarified that her concerns arose from ‘her participation in political activities that would lead to her arrest’. There is no suggestion that the Tribunal was not considering all of the political activities to which she had referred in her material in reaching its conclusions in paragraph [64].
It is further submitted for the applicant that the Tribunal was required to consider not only whether it accepted that the applicant and Mr Nuru were first cousins as claimed, but rather, it was required to consider what, if any, relationship existed between the applicant and Mr Nuru and whether because of that relationship, the applicant would have been perceived to have an association with Mr Nuru and whether that perception would place her at risk. It is submitted for the applicant that the Tribunal did not do so, and as such, failed to properly consider this aspect of her claim.[44]
[44] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [26].
The applicant referred to Mr Nuru as her cousin. The Tribunal considered this issue and rejected the applicant’s claim that Mr Nuru was her cousin. In the context of the Tribunal’s adverse credibility findings more generally, it was not required to consider whether the applicant faced harm because of some other actual or perceived relationship with Mr Nuru.
When read fairly, the Tribunal did not believe the applicant’s claims. In my view, that was a finding reasonably open to it.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant alleges that the Tribunal failed to properly consider her claim to fear harm as a woman in Ethiopia, and in doing so, again constructively failed to exercise its jurisdiction under section 414 of the Act. In making this claim, the applicant relies upon country information contained in the ‘DFAT Country Information Report, Ethiopia’ (‘DFAT report’), as dictated by Ministerial Direction No. 56 issued under section 499 of the Act.[45]
[45] See Exhibit A.
This ground is put on two bases. The first is that the Tribunal is bound to consider not only claims expressly made by the applicant, but also claims which are raised by the evidentiary material before it. The applicant relies on the Federal Court decision of MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [38] in support of this proposition.[46]
[46] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [27].
Secondly, it is submitted that by virtue of Ministerial Direction No. 56 made pursuant to section 499 of the Act, the Tribunal was required to have regard to the DFAT report. It is common ground that the applicant claimed to face a risk of harm, among other things, as a ‘woman at risk’. It is submitted that the issue of risks to women is dealt with in the DFAT report under the heading ‘Women’ and also under the heading ‘Violence’.
The purpose of Ministerial Direction No. 56 is to guide decision-makers performing functions under the Act to ensure consistency of decision-making to the extent that consistent country information is considered where relevant.Relevantly, under the heading ‘Objectives’, the Ministerial Direction states:
It is undesirable for first instance and review decision makers to take inconsistent approaches to the decision making task where there is no rational basis for these inconsistencies. Accordingly, it is desirable that subject to the Migration Act and Regulations and other applicable laws, decision makers take as their starting point a common set of guidelines and country information.[47]
[47] Exhibit A.
Clause 3 of the Ministerial Direction then goes on to say:
3.Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
The 2016 DFAT report falls within the operation of the Ministerial Direction. The applicant concedes that the Tribunal had regard to the information contained at page 26 of the court book in the DFAT report under the heading ‘Women’ as paragraph [3.49] is excerpted in the Tribunal’s reasons.[48] However, the applicant says that the Tribunal did not consider the information contained under the heading ‘Violence’ at page 27 of the court book which also deals with violence against women.[49] In particular it is submitted that the Tribunal did not have regard to the information at paragraph [3.54] which states that:
3.54DFAT assesses that women in Ethiopia face a high risk of domestic violence and sexual harassment. Women in Ethiopia also face a moderate risk of rape and sexual assault, including spousal rape. Practices such as female genital mutilation … marriage by abduction and child marriage are also highly prevalent …
[48] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [32].
[49] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [31].
It was submitted on behalf of the applicant that:
…where a tribunal … is satisfied that a person is a woman from Ethiopia who would be returned to Ethiopia… they must take account of this assessment. It doesn’t necessarily follow that they must grant the protection visa, but if the decision-maker wished to depart from that assessment or to find that there was only a low risk of sexual harassment or that sexual harassment did not constitute serious or significant harm or that a moderate risk of rape or sexual assault is not a real chance of that occurring or that it’s not serious or significant harm in any particular case, and it would need to give reasons to explain that departure. …[50]
[50] Court transcript at page 6.
It is then submitted for the applicant that when one looks at paragraph [57] of the Tribunal’s reasons, it is apparent that whilst the Tribunal considered societal discrimination and violence towards women, it did not consider the risk of sexual harm to the applicant as a woman returning to Ethiopia. As such it is submitted that the Tribunal failed to grapple with the DFAT report in so far as it related to sexual violence, as opposed to more generalised societal violence towards women. It is submitted that this gives rise to a jurisdictional error by the Tribunal.[51]
[51] Court transcript at pages 8 to 10.
For the following reasons, respectfully, this submission must be rejected.
Bearing in mind the caution in Wu Shan Liang not to read tribunal reasons with a keen eye to finding error, a fair reading of the Tribunal’s reasons do not support a finding that the Tribunal failed to consider the DFAT report.
First of all, it is clear that the Tribunal was aware of the DFAT report because it has expressly referenced it.[52]
[52] See Tribunal decision record dated 22 May 2017 at paragraph [57].
Secondly, and perhaps more importantly, the applicant made no claim to fear harm from sexualised violence, nor does such a claim arise from the applicant’s material. The claim made by the applicant was that as a woman without the protection of a male, she would fear harm due to her gender. The Tribunal rejected that the applicant would not have the protection of a male on her return and therefore rejected the premise on which this claim was based.[53]
[53] Tribunal decision record dated 22 May 2017 at paragraphs [49] to [50] and [59].
A claim of harm cannot be said to arise from the country information, simply because the applicant is a female and the country information identifies that there is a risk of sexualised harm to women in Ethiopia. Having regard to the applicant’s claims, including those which could be said to fairly arise from her material, the Tribunal was not required to consider a claim to fear harm on the basis of a risk of sexualised violence. Indeed, such a claim was inconsistent with her express evidence that she had not been harmed on the basis of her gender.[54]
[54] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 40.
The Tribunal did, as it was required to, consider whether she would face a risk of harm on return as a single mother and a woman. In this context it relevantly had regard to the DFAT report. Moreover, it is clear that in considering the risk of harm to the applicant as a result of her gender, the Tribunal also considered her experience in Ethiopia before she came to Australia, as well as her own evidence.
The Tribunal therefore appropriately had regard to the relevant country information and its findings were reasonably open to it in this regard.
For each of these reasons, ground 2 is not made out.
Ground 3
By ground 3, the applicant contends that the Tribunal’s adverse credibility findings against her were irrational, illogical or otherwise made without a probative basis and that this constitutes a jurisdictional error. The Minister submits that the credit findings made by the Tribunal were reasonably open on the material before it and consequently, there was no illogicality, irrationality or other jurisdictional error.[55]
[55] Minister’s Outline of Submissions filed on 1 December 2021 at paragraphs [27] to [42].
In support of this ground, the applicant submits that the Tribunal made two critical findings which were illogical or irrational or which otherwise were made without any evidentiary basis:
(a)the first was the Tribunal’s rejection of the applicant’s claim that activist Yasin Nuru was her cousin because it found at paragraph [47] that she had not mentioned Mr Nuru ‘in the Departmental interview’.[56] The applicant says that, in fact, she had mentioned Mr Nuru in both of her interviews with the Department.[57] It is said that this led to the Tribunal rejecting an important aspect of her claim which was material to the ultimate findings made by the Tribunal.[58]
(b)secondly, it is submitted for the applicant that the Tribunal found that the applicant gave inconsistent evidence about her claim to have been present at the 13 July 2012 protest.[59] The Tribunal found that her claims to have been at this protest were not credible because of these inconsistencies.
[56] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [38].
[57] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [39].
[58] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [40].
[59] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [41].
It is common ground that the relevant principles regarding judicial review of credibility findings is set out in the decision of the Full Court of the Federal Court in AVQ15 v Minister for Immigration and Border Protection (2018) ALR 227 (‘AVQ15’). In that case, the court made the following general observations:
23.A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.
…
26.Consistently with its task on review … appropriate attention has to be given by a decision-maker … to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. ...
27.Secondly, the term ‘inconsistency’ should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
28.Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. … How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or perform it reasonably and fairly, may be the subject of judicial review.
…
40.Relevant legal principles guiding judicial review of adverse credibility findings and whether or not the failure to take into account relevant material in making such findings give rise to jurisdictional error have been discussed in several cases …
41.For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a)The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b)While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c)Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d)Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e)Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making …
(f)Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
In this matter, as stated, it is submitted for the applicant that the Tribunal made critical findings that were illogical, irrational or otherwise without any evidentiary basis in two respects.
Applicant’s claim that Yasin Nuru is her cousin
Turning to the first aspect, the applicant contends that the Tribunal rejected her claim that activist Yasin Nuru is her cousin, including because it found that the applicant had not mentioned him ‘in the Departmental interview’.[60] It is submitted that the Tribunal’s finding lacked any evidentiary basis in circumstances where the applicant mentioned Mr Nuru in both of her interviews with the Department. It is further submitted for the applicant that this erroneous finding was material as it led to the Tribunal rejecting an integer of the applicant’s claim, namely that her relationship with Mr Nuru exposed her to persecution.
[60] See Tribunal decision record dated 22 May 2017 at paragraph [47].
The Minister concedes that the applicant did mention Mr Nuru in the second interview before the Minister’s delegate.[61]
[61] Minister’s Outline of Submissions filed on 1 December 2021 at paragraph [34].
In support of her submission that she did, in fact, refer to Mr Nuru in both interviews, the applicant relies upon the affidavit of Mr Joseph Monaghan sworn on 16 November 2021. Annexed to that affidavit is a transcript of each of the applicant’s interviews with the Minister’s delegate. Mr Monaghan states that on review, a number of errors have been identified in those transcripts. Those errors are set out at paragraph [5] of Mr Monaghan’s affidavit.
In addition, the applicant points to a statement in the delegate’s reasons at pages 149 to 150 of the court book where the delegate states that during her first protection visa interview on 25 August 2014, she made a number of additions and amendments to her claim, including, relevantly that:
She attended one demonstration and it was in July 2012. She was with her fiancé, father and other siblings. She was arrested with her father and fiancé but her siblings escaped. They were suspected to be relatives of Yasin Nuru.[62] …
[62] Court book at page 150.
I find that the applicant did not mention Yasin Nuru at all in her initial application. I accept that the applicant did refer to Mr Nuru as a relative in her interview on 25 August 2014 but it is was only after the first interview, in her September 2014 written submission, that the applicant states that Mr Nuru is her cousin. It is submitted for the first respondent that it is in this context that paragraph [47] of the Tribunal’s reasons must be read, having regard to the observations in Wu Shan Liang that a court on review:
…should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker … The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
It is submitted by the Minister that when read in this way, paragraph [47] of the decision record does not disclose an error, and certainly not a jurisdictional error now contended for.[63] I agree with this submission.
[63] Minister’s Outline of Submissions filed on 1 December 2021 at paragraph [36].
Relevantly, at paragraph [47] of its decision record, the Tribunal states:
47.The applicant claims that Yasin Nuru is her cousin. Mr Nuru is reported by independent country information to be one of the 17 representatives who were arrested in July 2012. The applicant did not mention Mr Nuru in her protection application form nor in the Departmental interview but did in the statutory declaration dated 20 September 2014 as well as at the Tribunal hearing. Based on my serious concerns of the applicants (sic) credibility and not having mentioned him at earlier iterations of her application process I find that the applicant is not Mr Nuru’s first cousin.
I accept that the applicant mentioned that one of the reasons why she was arrested was because she was suspected to be a relative of Yasin Nuru. However, she did not say that he was her cousin in the August 2014 interview. In her written submission dated 20 September 2014, the applicant stated:
On July 21 2012, during further peaceful protest … the government forces responded with massive injustice. During this incident a member of my family and one of the arbitration committee members, Yasin Nuru, was arrested.
My cousin Yasin … have since been mistreated …
On 8th august (sic) 2013, my fiancée, Mohamed Shafi was one of the protesters who took out to the local mosque against the government’s brutal treatment of the previously detained 17 members of the Muslim arbitration committee, of which one (Yasin Nuru) was my cousin. Security agents later stormed to my family house, where they confiscated property searching for documents before taking away my father, brother and sister.
…
Yasin, one of the prominent members of the committee, is my cousin who has been very close to my family and visited us on a regular basis. He was the one who inspired other family members to support the committee members that have now been subjected to incredible abuse and torture in the hands of the brutal Ethiopian government.
…
… Because of the manner in which my immediate family has been treated by Ethiopian authorities, it’s is (sic) patently clear that I fear the consequences of a forced return to Ethiopia.
…
In clear breach of my family’s personal freedom and safety, the government agents harassed, tortured and abused them in trying to obtain some documents they suspected to have been kept by me, given from Yasin one of the 17 members of the arbitration committee.[64]
[64] Court book at pages 128 to 132.
It is against this context that in its reasons, the Tribunal at paragraph [47] deals with the issue of the applicant’s claim that Mr Nuru is her cousin. Relevantly, this finding is made after the Tribunal has considered the applicant’s credibility in relation to her claimed attendance at the July 2012 protest and her claim to have been arrested. Relevantly, at paragraphs [31] to [46], the Tribunal sets out in some detail the applicant’s evidence about this issue.
Moreover, the Tribunal noted at paragraph [43]:
43.While I accept that some time has passed since those events and that the details may have been affected by the passage of time I note that the original protection visa application was submitted on the 20 August 2013, a year after the events.
This finding was reasonably open to the Tribunal.
Moreover, it is clear that the Tribunal’s reasons at paragraph [47] were directed at considering whether it accepted the applicant’s claim that Mr Nuru was the applicant’s first cousin. As stated, whilst it is clear that the applicant mentioned Mr Nuru in the first delegate interview, she did not mention or claim that he was her first cousin in that interview. It is in this context that the Tribunal discusses the context in which the applicant identified Mr Nuru as her first cousin. This disclosure was not made until after the first interview.
Read fairly and in light of the serious credibility concerns identified by the Tribunal, the Tribunal’s findings at paragraph [47] do not disclose jurisdictional error. The Tribunal rejected the factual underpinning of the claim that she feared harm because of her stated relationship with Mr Nuru. As such, it did not fail to consider an integer of her claim. It simply rejected the premise of that claim. That finding was reasonably open on the evidence.
Applicant’s claimed attendance at a protest on 13 July 2012
The applicant also takes issue with the Tribunal’s findings regarding ‘inconsistencies’ in her evidence about her attendance at a protest on 13 July 2012. It is submitted for the applicant that there was no inconsistency between her claims in her protection application, on the one hand, and her evidence at the interview, on the other, on the basis that in her interview with the delegate, the applicant had never claimed that she was at the 13 July 2012 protest.[65]
[65] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraphs [44] to [45].
In her protection visa application, the applicant refers specifically to the 13 July 2012 protest in the following terms:
On 13 July 2012, some of my family members were worshiping in the local ‘Awolia Mosque’ when they were arrested amongst 72 other worshipers by government forces. I was informed that fire was shot and tear gas launched towards innocent Muslims who have attended an election of free supreme Islamic council.[66]
[66] Court book at page 116.
At paragraph [39] of the Tribunal’s reasons, the Tribunal went on to say:
39.In the Departmental interview, as recorded by the decision record which was submitted to the Tribunal by the applicant, the delegate notes that she said that ‘She took part in one demonstration. That was on 13 July 2012 at the Awalia mosque. …’
The Tribunal then said at paragraph [41]:
41.I note the inconsistency in her various statements. In the application, although not explicitly stated, she infers that she was not present at the protests. At the Departmental interview she claims that she was at the 13 July 2012 protests and that she was arrested on that day.
It is submitted for the applicant that on the basis of this material, the Tribunal found that there was an inconsistency between statements in her application, on the one hand, which suggested that she had not attended the protest on 13 July 2012 and her statement to the delegate that she had attended the protest on 13 July 2012.[67]
[67] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraphs [41] and [42].
It is further submitted that this finding was not open on the evidence in circumstances where she had not told the delegate that she had been to a protest on 13 July 2012, and moreover, her claim during her interview with the delegate that she had attended a protest in July 2012 was not inconsistent with her application.[68] This latter point was based on the fact that in her application, the applicant had stated that she had engaged in protests against the government.[69]
[68] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraphs [43] and [44].
[69] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [44].
It is submitted that the finding that the applicant had given inconsistent evidence about her attendance at the 13 July 2012 protest was critical to the Tribunal’s credibility findings and therefore was a material error and resulted in the Tribunal’s decision being affected by jurisdictional error.[70]
[70] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [45].
In response, the Minister says that the position now put is the ‘complete reversal of the position that was taken by the Applicant and her representative when the issue was raised by the Tribunal’.[71]
[71] Minister’s Outline of Submissions filed on 1 December 2021 at paragraph [40].
At the commencement of the applicant’s interview with the Tribunal member, the member explained to the applicant that the Department had concerns about her credibility.[72]
[72] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 6.
Later in the interview, the Member sought clarification from the applicant as to whether she had attended protests in July. In this context the following exchange occurred:
Member:… What I would like to do next is to ask you specific questions about your fears of returning to Ethiopia.
Applicant:… If I return back … I don’t feel confident or it’s very dangerous – the reason because in the July protests of this mostly protest I participated at that time so if I return back there it’s very, very risky.
…
And it’s very dangerous for my life and so many young people were killed. And I lost my family members. I don’t know where they are at the moment.
…
Member:So can you describe to me those protests that you’re talking about in July?
Applicant:… This protest was first off – first stage it was in Ullia and then moved to Adwa Mosque area and my family and myself participated in this protest. … Even so my brother and my sister is kept from that … but my father and my son were arrested for two months.[73]
[73] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 24.
The applicant’s evidence then was somewhat confused. The member tried to clarify when and why the applicant protested. Ultimately, the applicant confirmed that she attended the protest in July 2012 and that the protest was at the Anwar Mosque.
In the context of these questions, the following exchange occurred:
Applicant:In those places Awalia and Anwar Mosque was done the protests. But I participated in the protesting done in Anwar Mosque and then my family members were arrested. With my father we were arrested for two murders and released.
Member:So when you say and then family members were arrested, who was arrested?
Applicant:I – my father we were arrested for two murders and my fiancé here at that time he was arrested for six murders. But my brother and my sister couldn’t be able to escape from this. And myself, my father, my fiancé were released with a strong warning or caution.
…
Member:Do you remember the day that you were protesting … what day was it?
Applicant:I can’t remember. Only the month and year – July – and year. Sorry for that the terminology when we say ‘the day’ the date and day in my language is similar …
Member: … Was it weekend?
Applicant: After we prayed – it was on Friday.
Member: So the Friday was the day that you were protesting. Is that correct?
Applicant: Yes .[74]
[74] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, pages 26 to 27.
Later in the interview, the Tribunal member specifically put to the applicant her statement in her application about her family members being at the Awalia Mosque when they were arrested. In this context, the Tribunal member said:
Member: So what you’ve written here suggests that you were not there.
Applicant: … One of my relatives is the one who told me. …
…
Member:But this is very specific question in your application you suggest that you were not at any protest but now you are telling me that you were at the protests. So I want to clarify in July 2012 were you or were you not at the protest?
Applicant:Yes. I participated. I participated at Anwal Mosque protesting.[75]
[75] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, pages 29 to 30.
The Member then addressed the applicant’s representative who confirmed that he had been representing the applicant since she filed her application. In this context, the following exchange then occurred:
Member: But my interest is why the information is changing?
Applicant’s Representative: No. I think that … sorry, if my … I’m assuming that one year … protest that’s the second protest which happened while she was in Australia. …
Member:“On 13 July 2012 some of my family members were worshipping in the local Awalia Mosque.”
…
So that’s the July 2012.
Applicant’s Representative: Yes
Member:It’s not the second one. So there’s a clear conflict here of information. The protection visa says that she wasn’t there. Subsequent statutory declarations says that she was.
…
At the hearing she’s claiming that she was. So there’s that issue.[76]
[76] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, pages 30 to 31.
The applicant’s representative sought to explain that the confusion may have arisen from the applicant clarifying her information as the process progressed. However, the Tribunal member made it clear that it was difficult for him to understand when explaining her concerns and fears why she would initially say that she had not attended a protest and later say that she did. The Tribunal member clearly put the applicant and her representative on notice that this inconsistency was a concern for him.
The member also suggested that this might be a matter that the applicant may wish to respond to in a post-hearing submission, although notes that that is a matter for her.[77] The Tribunal member then clearly put this to the applicant herself when he said:
I discussed with your representative that I have a concern that your story is changing. Because in your initial application you suggested that you were not at the protests but then your story has changed subsequently.[78]
[77] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 31.
[78] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 32.
In response to a question as to whether the applicant had participated in any other protests, the applicant responded:
… I participated in Anwal Mosque participation and when was the election in Awalia I have been attended there and my family and myself were arrested at Anwal Mosque protesting in there.[79]
[79] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 32.
When regard is had to the applicant’s evidence at the Tribunal hearing and the claims made in her application for a protection visa, it was open to the Tribunal to conclude that there was an inconsistency between the two. In her application she made reference to a protest at the Anwal Mosque on 13 July 2012 at which her family members were arrested. It is open to read that claim as suggesting that she was not present at that protest. She subsequently gave evidence that she was present at the Anwal Mosque at which she and family members were arrested. When read in totality, it was open to the Tribunal to conclude that there was an inconsistency between the applicant’s evidence. It was also open to the Tribunal to conclude that this inconsistency weighed in favour of its adverse credibility finding.
For each of these reasons, ground 3 is not made out.
Ground 4
By ground 4, the applicant submits that she was denied a procedurally fair hearing before the Tribunal due to material errors in translations between English and Amharic. These errors are said to extend to questions asked of the applicant by the Tribunal, information given by the Tribunal to the applicant and statements made by the applicant to the Tribunal.
The applicant has filed an expert report prepared by Mr Chalachew Wolde Mitiku, an interpreter and translator accredited by NAATI in the Amharic-English pair, detailing the various errors in translation made by the Amharic translator at the Tribunal hearing.[80]
[80] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-5.
No objection was taken by the Minister to that report being before the court in so far as it relates to the identified translation errors. The applicant confirmed that she only sought to rely upon the expert report for this purpose.
The parties agree on the legal principles which apply to determining whether errors in interpretation constitute a jurisdictional error. The difference between them is how those principles are applied to the facts in this case.
Relevantly, in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 (‘DVO16’), the plurality (Kiefel CJ, Gageler, Gordon and Steward JJ) said:
4.The function of translation in a curial or administrative setting is interpretation of communications as accurately and completely as possible. The process of interpretation involves comprehension of words spoken or written in a source language, conversion to a target language, and delivery in a manner faithful both to the content of the words and to the register and style of the speaker or writer. That, at least, is the ideal.
5.Long past is the time when an interpreter might have been thought to be appropriately described as a ‘translating machine’ or ‘bilingual transmitter’ performing a function ‘not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance’. More accurate is to conceive of an interpreter as a ‘bilingual mediating agent between monolingual communication participants in two different language communities’ and to recognise that ‘total equivalence’ between words spoken or written in a source language and words translated into a target language is a ‘chimera’. Translation is not a ‘simple word-matching exercise’ but a ‘difficult and sophisticated art’ which, ‘[t]o be done well’, ‘requires not only linguistic sophistication and sensitivity to ‘minor’ linguistic details (which may be correlated with vast differences in conceptualization), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organization of the relevant countries, and of the world-views and life styles reflected in the linguistic structure’.
6.… Imperfections in communication arising out of mistranslation of words spoken or written in one language into another language are inherent in the human condition, as are imperfections in communication arising out of misuse or misunderstanding of words spoken or written in a common language. ‘Perfect interpretations’ simply ‘do not exist’.
…
8.Whether and if so in what circumstances mistranslation might result in invalidity of an administrative decision turns necessarily on whether and if so in what circumstances mistranslation might result in non-compliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making authority. …
The applicant submits that there were translation errors in this case which resulted in unfairness to the applicant. Relevantly, the applicant submits that the interpreter:
…failed to translate, or mistranslated, various statements made by the Tribunal in which the Tribunal sought to put material to the applicant as required by s 424AA of the Act, or otherwise put her on notice of preliminary adverse views that it had formed in respect of the applicant’s evidence.[81]
[81] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [48].
The applicant points to paragraph [40] of the Tribunal’s reasons in which the Tribunal refers to an exchange with the applicant on the first day of the hearing which led the Tribunal to the view that the applicant’s response lacked credibility. The applicant notes that the Tribunal member during the interview put to the applicant that he did not find her answer to be credible. This, however, was translated as ‘I do not find this a valuable answer’.
It is submitted for the applicant that in making this statement, the Tribunal in the course of the interview was putting its credibility concern to the applicant and giving her an opportunity to respond. The mistranslation of this resulted in that opportunity being taken away from the applicant. The applicant then says that the Tribunal member then considered the applicant’s response as if she had responded to his invitation to comment on his concern as to lack of credit whereas she was responding to a different question.[82]
[82] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraphs [50] to [52].
In addition, the applicant points to another translation error which is reflected in the Tribunal’s findings at paragraph [34]. The Tribunal put to the applicant apparently contradictory information provided by her, namely that the applicant was in prison at the same time that she was on the phone to the Tribunal in earlier proceedings. It is submitted that this question was not translated to the applicant and therefore she was deprived of the opportunity to respond to the Tribunal’s apparent concern about her veracity.[83]
[83] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraphs [51] to [52].
The applicant also relies upon a further translation error regarding her evidence about the last time that she saw her father.[84]
[84] Applicant’s Outline of Submissions filed on 15 November 2021 at paragraphs [53] to [55].
Ultimately, the Tribunal’s credit findings were significant to its rejection of her claims for protection. As such, it is submitted for the applicant that these interpreter errors infected the Tribunal’s assessment of the applicant’s credibility and therefore were material, and consequently, the applicant was denied procedural fairness.[85]
[85]Applicant’s Outline of Submissions filed on 15 November 2021 at paragraph [56].
I accept the evidence given by Mr Mitiku that there were a number of errors in the interpretation given during the tribunal hearing. However, not every translation or interpretation error will give rise to a jurisdictional error. As noted by the High Court in DVO16, the question ultimately is whether the interpreter error was such that the Tribunal failed in its statutory task.
For the following reasons, I find that it did not in this case.
Mistranslations relating to applicant’s participation in protests and arrest
I will deal with the last issue raised by the applicant first. It is common ground that the applicant, prior to her application for a protection visa, had sought to come to Australia on a visitor’s visa. Her first such application was rejected and she sought a review of that decision before the Tribunal (differently constituted). The present Tribunal member notes at paragraph [32] of the Tribunal decision record that the applicant’s interview with the Tribunal took place (by telephone) on 30 July 2012.
In the context of the applicant’s protection visa application, she claimed to have been arrested and imprisoned after attending a protest at the Anwal Mosque in July 2012. In her statutory declaration in support of her protection visa, the applicant claimed that she had been in prison for two months.[86] In this context, the present Tribunal member asked how it was possible that she was in prison at the same time that she participated in an interview with the Tribunal in relation to her visitor visa review application.[87]
[86] Court book at page 129.
[87] Tribunal decision record dated 22 May 2017 at paragraph [34].
Moreover, the Tribunal member noted that in addition to this concern, the Tribunal invited the applicant to comment on the fact that in her visitor visa application, she had expressly stated that she had nothing to fear in her home country.[88]
[88] Tribunal decision record dated 22 May 2017 at paragraph [35].
The Tribunal records at paragraph [37] of the decision record that at this point in the interview, the applicant sought a break which was allowed and that the Tribunal member offered the applicant to discuss with her representative the matters that had been put to her regarding these inconsistencies. The applicant was also offered the opportunity to provide a post-hearing submission in relation to this matter.
In the transcript of the interview with the Tribunal member, there is an exchange between the member and the applicant about when she last saw her father.[89] It is clear from this exchange that there was some miscommunication or misunderstanding about what was being asked and what answer was provided. At one point, the applicant’s representative indicated that a question had not been correctly translated. At another point, not long after, the applicant said that she wanted another interpreter. At this point, the following exchange occurred:
Member: Okay. You are not happy with the interpreter?
Applicant: No.
Member: Okay.[90]
[89] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 12 and following.
[90] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 13.
At this point, the applicant’s representative interjected and said that he was confident with the interpreter and he would discuss it with the applicant. The Tribunal member made it clear that the applicant needed to feel comfortable with the interpretation. After a further exchange, the applicant confirmed that she wanted to proceed with the interpreter.[91]
[91] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 14.
After this exchange, the member again came back to the issue of when the applicant last saw her father. She confirmed that she had last seen him after she returned from Dubai to Ethiopia and before coming to Australia.[92]
[92] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 15.
The issue of the applicant last spending time with her father was dealt with a number of times. It was dealt with in the context of some difficulties with the interpreter being raised and then resolved. The mere fact that there were initial difficulties in the exchange about the applicant’s time with her father does not evidence that those difficulties impacted the credibility findings that the Tribunal ultimately made.
There is no basis for concluding that the Tribunal failed to understand the applicant’s evidence in this regard, or that its inquiries were not adequately communicated to the applicant so as to permit her to provide her response. Indeed, the fact that the Tribunal member continued to explore this issue until the applicant was able to provide a fulsome response is indicative of the fact that the applicant was afforded procedural fairness. Nor is there any evidence to suggest that the Tribunal’s assessment of the applicant’s evidence was mediated by the fact that her evidence was given via an interpreter rather than directly in the English language.
Mistranslations relating to Tribunal’s credibility concerns
Similarly, I do not accept the assertion that the translation of ‘I don’t find that a credible answer’ as ‘I can’t say that this is a valuable answer’ precluded the applicant from providing an appropriate response to address the Tribunal’s credibility concerns.
This comment, as translated, must be viewed in context. The Tribunal member was asking questions of the applicant about whether her father had been arrested or spent time in prison. The applicant responded in the affirmative but could not recall how long he spent in prison. The applicant said that she was only 13 or 14 years of age at the time and was cared for by her neighbours by way of explanation as to why she could not specifically recall these details.[93] The member then asked if the applicant’s father had subsequently been arrested in more recent times. The applicant said that her father had not been arrested after the July 2012 protests as he had ‘escaped’.[94]
[93] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 15.
[94] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 17.
The following exchange subsequently occurred:
Member: So you came to Australia in February 2013?
Applicant: Yes. On 22 February 2013.
Member:So the months before that you were living with your father. Is that correct?
Applicant:Yes. Okay. I recall now. My father and me were arrested for two murders in July 2012.
Member:So how could you forget that when I asked you twice before if your father had been arrested at any other time?
…
Applicant:After EPRF arrest and I thought by him so otherwise we were arrested – both of us – for two murders. And we were released with warning – very strong warning.
Member:I don’t find that a really credible answer but we will continue with the questions.
Applicant: Okay.[95]
[95] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 17.
It is clear from the exchange that there was a level of incredulity on the part of the member that the applicant would not have recalled that her father had been arrested just before she left Ethiopia. There is not such a difference between the phrase used by the member and the words used by the interpreter. It was clear that the answer given by the applicant as to why she had not mentioned her father’s arrest earlier was not one which was convincing. This was the Tribunal’s concern and it was, in my view, conveyed to the applicant.
The phrase conveyed through the interpreter saying ‘I can’t say that this is a valuable answer’ could not in my view, be said to convey anything other than that the Tribunal did not find the answer given convincing. In those circumstances, the applicant was on notice that the answer that she had provided was not one which the Tribunal took to be convincing.
I accept that the Tribunal’s question to the applicant regarding how it was that she was able to attend an interview with the Tribunal in her visitor visa review application at the same time as she claims to have been imprisoned was mistranslated.
Having regard to the evidence of Mr Mitiku, the member said:
Yes. So can you please explain how you could have been interviewed for this tribunal at the same time that you were in prison for two months.
This was incorrectly interpreted as:
So, why didn’t you then give an answer to the Tribunal that you were imprisoned for two months.[96]
[96] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-5.
Accepting that this interpretation may not have conveyed the nuance of the Member’s inquiry, it is not evidence of a failure by the Tribunal to properly put its concerns to the applicant or the applicant’s ability to respond to those concerns.
In this regard, I note that no issue has been taken by the applicant’s expert to the interpretation of the balance of the exchange with regard to this issue. Moreover, it is clear from the transcript that the member indicated to the applicant’s representative that she could decide to respond to this issue in a post-hearing response and after doing so, the member adjourned the hearing to allow the applicant to consider and presumably to take advice from her representative.
After the adjournment, the applicant returned and addressed one of the issues that was put to her, namely the question as to why in that visitor visa review hearing, she had expressly stated that she did not fear harm in her own country.
The member noted that whilst that addressed one of the adverse matters put to her, she had not addressed the issue of the timing of the interview. In response, the applicant said that she was not feeling well and would rather put her response to the Tribunal at another time.[97]
[97] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, page 42 and following.
In this context, the following exchange then occurred:
Applicant’s representative: That’s what she discussed with me so that she could post-hearing clarify. I think there is a number of things that maybe …
Member:Yes. Okay. So let’s just agree on what those things are. A response to the 424AA question about the same timing?
Applicant’s representative: Yes.
Member: The business documents.
Applicant’s representative: Yes.
Member:That’s what I expect. Is there any other things that you want to add or clarify … then that’s fine.
…
Member:Okay. Now, would you like to do – present those issues now? Or do you want to leave them for the post-hearing submissions?
Applicant’s representative: Post-hearing …
Member: Okay…. I mean you’re free if you want to now. …[98]
[98] Affidavit of Joseph Monaghan sworn on 17 November 2021 and filed on 18 November 2021 at Annexure JM-3, pages 42 and 43.
The member and the applicant’s representative then discussed the time frame for the post-hearing submission. The applicant provided a post-hearing statutory declaration in which she addressed the issue of her arrest. In that response, the applicant stated that she was arrested on 30 August 2012.[99] The applicant, in that response, directly addressed the matters put to her by the Member. In those circumstances, an argument that the Tribunal failed to put appropriate matters to her as required by section 424AA due to an interpreter error, cannot be maintained.
[99] Court book at pages 196 to 198.
For each of these reasons, ground 4 is not made out.
Conclusion
As none of the grounds of review raised by the applicant have been made out, I order that the applicant’s application be dismissed with costs.
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 3 March 2023
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