Csu16 v Minister for Immigration
[2021] FCCA 73
•19 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSU16 v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 73 |
| Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – protection visa – Irregular Maritime Arrival – jurisdictional error – Tribunal’s failure to take into account relevant material – credibility of applicant – Tribunal did not provide adequate interpreting services – issue of mistranslation – issue of inadequately translating words – deprivation of meaningful hearing – Tribunal’s emphasis on applicant’s ‘omissions’ – failure to direct the applicant to provide a comprehensive account - Tribunal’s decision was illogical – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 Parera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 |
| Applicant: | CSU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2060 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 8 May 2020 |
| Date of Last Submission: | 8 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2021 |
REPRESENTATION
| Counsel for the applicant: | Ms Burt |
| Solicitors for the applicant: | Ambi Associates |
| Counsel for the respondents: | Mr Yuile |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicant’s application be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2060 of 2016
| CSU16 |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the AAT” or “the Tribunal”) dated 29 August 2016 by which the AAT affirmed a decision (“the August 2016 decision”) of a delegate of the first respondent not to grant the applicant a protection visa.[1]
[1] Applicant’s application filed 23 September 2016.
Background
There is a somewhat lengthy history to this matter. The applicant is a citizen of Sri Lanka. He arrived in Australia as an Irregular Maritime Arrival on 11 February 2012 and lodged a protection visa application on 18 June 2012.[2]
[2] Applicant’s submissions filed 5 February 2020; see also court book filed page 28.
That application was refused by a delegate of the first respondent on 22 October 2012.[3] The applicant sought a review of that decision on 31 October 2012.[4] Ultimately, the Refugee Review Tribunal (“the RRT”) as it was then called, upheld the delegate’s decision.[5]
[3] Court book page 158.
[4] Court book page 182.
[5] Court book page 225.
On 12 May 2014, the RRT affirmed the first delegate’s decision.[6] The applicant successfully sought judicial review of the RRT’s decision. On 24 September 2015, his Honour Judge McGuire of this court ordered that the RRT’s decision be quashed and the matter be remitted to the Tribunal for consideration according to law.[7]
[6] Court book page 224.
[7] Court book page 242.
On 21 April 2016, the applicant appeared before the AAT (differently constituted).[8] He was assisted by a Tamil interpreter.[9]
[8] Court book page 289.
[9] Court book page 288.
On 29 August 2016, the AAT affirmed the delegate’s decision.[10] This application, filed by the applicant on 23 September 2016, is an application for a review of the AAT’s August 2016 decision.
[10] Court book page 294.
On 5 February 2020, the applicant by his representative filed an amended application and written submissions together with an affidavit to which a transcript of the proceedings before the AAT was annexed. The applicant by this amended application raises three grounds of review. The first respondent did not object to the applicant relying upon the new grounds of review and the matter proceeded on the basis of the grounds of review in the applicant’s amended application.
Ground 1
Ground one was made as follows:
The Tribunal failed to take into account relevant material that was material to the outcome reached.
Particulars
(1)The applicant made a claim that he had earlier told the Australian authorities about his contact with the International Organisation of Migration (‘IOM’).
(2)The Member asserted at interview that the applicant had never raised this claim before.
(3)The applicant asserted that he had raised the claim.
(4)The Member made an adverse finding on the basis that the applicant had never earlier raised his registration with IOM, including a finding that the delay in raising the claim raising doubts about his credibility.
(5)The applicant had earlier raised his contact with the IOM, as is evident from his ‘entry interview’.
(6)To fail to take into account was said at the entry interview, and to make such a finding, the Member failed to take into account a relevant claim, or material.[11]
[11] Applicant’s amended application filed 5 February 2020.
It is common ground that one of the applicant’s claims was that he feared harm because of his time on the “Merak boat” in coming to Australia.[12] It is also common ground that the Merak boat attracted international media attention and publicity within Indonesia.[13] The applicant claimed that his family had identified him as having been on that boat from media reports and that consequently, he would be imputed with anti-government opinion because of his presence on that boat.[14]
[12] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 1.
[13] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 1.
[14] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 1.
It is also not in dispute that at the hearing before the AAT, the applicant said that he was indeed on the Merak boat and said that he had registered himself with the International Organisation of Migration (“IOM”). He went on to say ‘Can check with the IOM and get my details. Can check with anyone with me at the time.’[15]
[15] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 3.
It is also not in dispute that the Member put to the applicant in the course of the hearing, incorrectly, that he had never mentioned having registered with the IOM previously, but rather that he had mentioned having registered with the UNHCR in Indonesia.[16]
[16] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 5.
The Tribunal Member deals with this issue at [51] and [52] of its reasons for decisions. Relevantly at [51], the Tribunal says:
The Tribunal has serious doubts about the applicant’s claimed presence on the Merak boat … The Tribunal also notes the applicant claimed for the first time during the hearing that he registered himself with IOM and they have all the details that the was on the boat. … the Tribunal finds that the applicant had not previously raised registering with IOM but had instead spoke about approaching UNHCR in Indonesia for assistance and that his delay in mentioning this raises serious doubts about his credibility.(emphasis added)[17]
[17] Court book page 302.
It is evident from the applicant’s entry interview,[18] that the applicant in fact did make reference to having had some contact with the IOM at that early stage. The first respondent conceded in effect that the applicant did mention contact with the IOM and that the Tribunal was incorrect to find otherwise at [51] of the Tribunal decision record.[19]
[18] Court book pages 18 to 19.
[19] First respondent’s submissions filed 19 February 2020, paragraph 3(a).
It was submitted for the applicant that the Tribunal Member’s erroneous reference to the fact that the applicant had not previously raised the issue of his contact with the IOM and that the Tribunal Member’s comment that this was said to raise serious concerns about the applicant’s credibility, were material to the outcome of the case. As noted in the applicant’s written submissions, ‘the issue about whether the applicant had lied about earlier having reported contact with the IOM was significant because it caused the AAT to have ‘serious doubts’ about his credibility.’[20] Moreover, it was further submitted that given the credibility concerns the Tribunal had about other aspects of the applicant’s claims, the Tribunal’s conclusions about the IOM issue took on ‘considerable significance’.[21]
[20] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 13.
[21] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 13.
The crux of the applicant’s claim in ground one is that in concluding that the applicant had not raised the IOM issue earlier, the Tribunal concluded that the applicant had told a lie about this issue and therefore formed an adverse view of the applicant’s credibility. In making this submission, the applicant points to the fact that the Tribunal itself notes that this caused it to have ‘serious doubts about his credibility’.[22]
[22] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 7.
Moreover, it is submitted for the applicant that this credibility finding cannot be quarantined to credibility findings about the IOM issue alone, but rather informs the Tribunal’s conclusions about the applicant’s credibility generally.
Whilst the applicant concedes that the Tribunal made various adverse credibility findings in its decision, and indeed concedes that the Tribunal did ‘reject a lot of the applicant’s evidence’,[23] it is submitted that it is artificial to seek to distinguish a credibility finding in relation to the IOM issue from other credibility findings from the Tribunal’s reasons. This is particularly so, given that the adverse credibility findings in relation to the IOM issue was expressed in the strongest of terms.
[23] Court transcript page 6.
In support of its submissions in this regard, the applicant relies on the decision of Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”).[24] In that case, the issue before the Federal Court of Australia was whether the Federal Magistrate at first instance had erred, either by:
a) finding that the Tribunal had ignored the applicant’s academic transcript; or,
b) finding that in ignoring the applicant’s academic transcript, the Tribunal fell into jurisdictional error.
[24] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
Relevantly, in SZRKT, Robertson J stated the following at [77] in considering the impact of failing to have regard to evidence before it in making an adverse finding:
…recent High Court authority shows that this is a case specific inquiry and is not one which should be analysed by reference to fixed categories or formals to the effect that a decision within a category or formula is always or is never affected by jurisdictional error … To proceed otherwise in the area of jurisdictional error is to look for more precision than the nature of the subject admits. In each case what the decision-maker has decided must be analysed in detail in order to arrive at the correct description of conclusion, ‘jurisdictional error’…[25]
[25] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [77].
At [112] Robertson J said that whether the Tribunal is required to consider a particular piece of evidence, will depend on ‘the cogency of the evidentiary material and the ‘place of that material in the assessment of the applicant’s claims’.[26] In this case, it was submitted that the adverse (incorrect) finding that the applicant had raised the IOM issue for the first time at the Tribunal hearing ‘irrevocab(ly)’ damaged the applicant’s credibility in the eyes of the Tribunal and that that then ‘permeated the Tribunal’s decision’.[27]
[26] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 21; see also Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
[27] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 22.
In response, the first respondent concedes that there was a factual error in so far as the Tribunal concluded that the applicant had raised the IOM issue for the first time in his hearing in 2016. However, the first respondent submitted that the Tribunal’s ‘incorrect finding of fact was not of sufficient importance to found jurisdictional error’.[28]
[28] First respondent’s submissions filed 19 February 2020, paragraph 3(a).
The issues which arises therefore from ground one are:
a) what flows from the factual error made by the Tribunal; and
b) whether the factual error rises to the level of jurisdictional error.
It is submitted for the applicant that the credibility finding made by the Tribunal at [51] influenced the overall credibility findings made elsewhere in the Tribunal’s reasons.[29] It is further submitted for the applicant that it is not possible, or appropriate, to try and dissect the Tribunal’s credit findings in the manner suggested by the first respondent.
[29] Court book at page 309.
In making this submission, the applicant points to the comments of Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [43] – [44] where he said:
Despite the careful reasoning of the primary judge and the Minister’s submissions on the appeal, I consider there is a good deal of artificiality in speculating that because the adverse view taken by the Tribunal member as to the Beheading Incident and the Alcohol Incident, that the adverse view reached as to the lack of credit of the appellant was inevitable, irrespective of any faulty translation of the Hospital Evidence.[30]
It is not realistic to put various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence.[31]
[30] SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [43].
[31] SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44].
Similarly, the Full Court of the Federal Court of Australia relevantly observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117:
… an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:
“… Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive …”
Kirby J expressed a similar view in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2014] HCA 62 at [81]:
“… decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.”
The first respondent maintains that the error does not give rise to a jurisdictional error in circumstances where the Tribunal went on to conclude that even if the applicant had been on the Merak boat, it would not have resulted in the applicant being targeted for that reason on his return to Sri Lanka.
The first respondent submits that the Tribunal’s reasoning makes it clear that even if it had not made a factual error about whether the applicant had contacted or registered with IOM, it would not have altered the ultimate conclusions reached. This is because it is clear from a fair reading of the Tribunal’s reasons at [51] to [54] that the Tribunal approaches these issues in a layered and cascading manner. That is, the first respondent submits that the Tribunal’s reasons make it clear that:
a) the Tribunal doubted whether the applicant was on the boat at all;
b) at [52] the Tribunal notes that even if he was on the boat, it was not satisfied that his presence on the boat had become known as claimed;
c) at [53] the Tribunal discussed the situation for people who were on the boat and whose identity had become known and at [54] concludes that even if the applicant were identified as being a passenger on the Merak boat by the Sri Lankan authorities, it found ‘the chances of the applicant being seriously harmed by the government or the authorities for reasons of an imputed political opinion in support of the LTTE or an anti-government profile, remote.’[32]
[32] First respondent’s submissions filed 19 February 2020 at paragraph 11.
Having regard to the way in which the Tribunal dealt with the claims about the risk of harm to the applicant arising from his presence on the Merak boat, I accept the first respondent’s submission that any error in the Tribunal’s factual findings could not have altered its ultimate conclusions.
The first respondent however, properly, with respect, concedes that a more difficult issue arising from ground one is the question of the Tribunal’s credibility findings. In particular, whether its credibility findings generally were infected by the credibility finding made as a result of its erroneous conclusion that the applicant had not previously raised the IOM issue.
The first respondent submits that the credibility finding made at paragraph [51] of the decision record, goes only to the boat issue.[33] That is, it is only relevant to the Tribunal’s findings as to whether it believed that the applicant was in fact on the Merak boat at all.
[33] First respondent’s submissions filed 19 February 2020 at paragraph 9.
The first respondent relies upon the fact that at no stage in its reasons, does the Tribunal make a wholesale rejection of the credibility of the applicant. Rather, it is submitted that in this case, where the Tribunal makes a finding on credit, it does so in a limited way and in respect of particular claims.[34]
[34] For example, see court book page 309 at [37].
Counsel for the first respondent also sought to distinguish the decision in SZRKT,[35] on the basis there that the question in that case, namely whether the applicant had studied Persian, was central to his claims overall. In this case, whether the applicant had previously raised his registration with the IOM was similarly not central to his overall claims. It was submitted therefore that the findings of credit arising from this particular issue were not particularly relevant to the overall conclusions reached by the Tribunal.
[35] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
In considering this ground, I note that it is accepted that:
a) the applicant did at a very early stage in the process, make reference to advising the IOM of his presence on the Merak boat;
b) the Tribunal erroneously concluded that he had not done so and concluded that he raised this issue for the first time at his hearing before it;
c) the Tribunal concluded his delay in raising this issue raised ‘serious doubts about his credibility’.[36]
[36] Court book page 309 at [51].
However, this finding must be read in context of the Tribunal’s reasons generally and in the context in which the finding was made.
Specifically, the issue which was being considered at paragraph [51] was whether the applicant was on the Merak boat.[37] In considering this issue, the Tribunal noted that it had concerns about the applicant’s credibility and his evidence generally. In any event, in determining the question of whether the applicant was on the Merak boat, notwithstanding the credibility concerns about whether the applicant was on the Merak, it went on to consider whether he was at risk of harm, even if he had been on the Merak and even if he had been identified as having been on the Merak. It ultimately concluded that he was not at risk.
[37] Court book page 309 at [51].
As noted by counsel for the first respondent, at no point in its reasons for judgment did the Tribunal make a general statement about the applicant’s credibility generally.[38] Rather the Tribunal assesses the applicant’s claims, and his credit in respect of each claim, one by one.
[38] First respondent’s submissions filed 19 February 2020 at paragraph 14.
For example:
a) at [27] of its decision record, the Tribunal says:
The Tribunal does not accept the applicant’s claims regarding the alleged problems he had from 2008 … are credible. The Tribunal finds the applicant’s evidence in respect of what allegedly transpired to be vague, inconsistent and implausible.[39]
b) at [28] it said that if found that his evidence about who had visited his family shop in Colombo had ‘changed over time’;[40]
c) at [29] the Tribunal said that the applicant’s evidence about this issue was ‘vague and internally inconsistent’;[41]
d) at [30] the Tribunal found the applicant’s evidence regarding the alleged interest in his family’s shop by the authorities to be ‘inconsistent’;[42]
e) at [31], the Tribunal further said that ‘the applicant’s evidence regarding what happened on the day when his brother was allegedly taken … in a white van to be discrepant’;[43]
f) at [33] the Tribunal noted that it found the applicant’s evidence about his attendance at the police station when his brother was allegedly arrested to be ‘far-fetched’;[44]
g) at [34] the Tribunal found the applicant’s evidence about the alleged inquiries made about him after he went into hiding to be ‘vague and contradictory and does not accept that he went into hiding as he claimed’;[45]
h) whilst prepared to give the applicant the benefit of the doubt at [35] and accept that the applicant’s family owned a business in Colombo, the Tribunal did not accept the applicant’s claimed involvement in the shop ‘based on a number of deficiencies in his evidence’;[46]
i) at [36] the Tribunal stated that ‘(g)iven the discrepancy in the applicant’s evidence in relation to the assistance he received’ the Tribunal did not accept that the applicant paid anyone to facilitate his departure from Sri Lanka but rather that he departed using his own passport.[47]
[39] Court book at page 301.
[40] Court book at page 301.
[41] Court book at page 301.
[42] Court book at page 302.
[43] Court book at page 302.
[44] Court book at page 303.
[45] Court book at page 303.
[46] Court book at page 304.
[47] Court book at page 304.
After setting out these concerns the Tribunal then noted at [37]:
For the reasons discussed above, namely the vague and inconsistent nature of the applicant’s evidence and implausibility of aspects of his claims, the Tribunal does not accept the applicant’s claims regarding the problems that either he or his brother experienced from 2008 are credible.[48]
[48] Court book at page 305.
At [38] the Tribunal deals with a further claim that the applicant had made about money being removed from his family’s bank accounts by fraud or extortion. In this context, the Tribunal stated:
Given the inconsistency in the applicant’s evidence regarding this claim, the Tribunal does not find it to be credible.[49]
[49] Court book at page 305.
As stated above at [51] – [55], and against this background, the Tribunal then deals with the applicant’s claims in relation to having been present on the Merak boat. Relevantly at [51], the Tribunal stated:
… in light of the Tribunal’s findings regarding the credibility of the applicant’s claims and his evidence generally, the Tribunal questions the reliability of the applicant’s assertions regarding the timing of his departure from Sri Lanka.[50]
[50] Court book at pages 309 to 310.
It is in this context that the Tribunal goes on to deal with the IOM issue and erroneously concludes that the applicant had raised this for the first time in the hearing and states that as a result of raising this issue at such a late stage, ‘it raises serious questions about his credibility’.[51]
[51] Court book at page 309 at [51].
A fair reading of the Tribunal’s reasons indicates that the conclusions about the applicant not raising his contact with the IOM, whilst erroneous, were not critical to either its assessment about his claims generally, about his credit generally or about the risks he faced on his return to Sri Lanka.
Unlike the case of SZRKT,[52] whether the applicant had registered with the IOM as claimed was not critical to any issue before the Tribunal. Moreover, to the extent that it was relevant to an issue before the Tribunal, namely whether the applicant was on board the Merak boat, although the Tribunal did not accept that he had registered with the IOM and was indeed sceptical as to whether he was present on the boat at all, it gave him the benefit of the doubt and considered his claims on the basis that he was on the boat. Ultimately, it concluded that even if he was on the Merak boat, he did not face a real risk of harm on his return as a result of being on the boat and on the basis of being identified as having been on that boat.
[52] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
Accepting that assessment of credibility is not necessarily linear, in determining whether an adverse credit finding based on a factual error gives rise to a jurisdictional error, consideration must be given to:
a) the significance of the factual error in the matrix of relevant considerations; and
b) the Tribunal’s reasoning in relation to credit and where the relevant adverse credit finding fits into that reasoning.
In this case, having regard to the Tribunal’s reasons in their entirety, I accept the submissions advanced for the first respondent and find that this ground is not made out.
Ground 2
Ground two was made as follows:
The decision of the Tribunal was affected by jurisdictional error in that it did not provide adequate interpreting services thereby depriving the Applicant of the hearing he was entitled to under s 425 of the Migration Act 1958. The Applicant was deprived of a meaningful hearing, to which he was entitled.
Particulars
(1)The applicant was deprived the opportunity for ‘real and fair’ hearing because of deficiencies in interpretation.
(2)The transcript of the hearing demonstrates the following errors, including:
(a)Failure to translate the Member’s comments about the availability of complementary protection.
(b)Mistranslation of some words.
(c)The addition of some words and concepts no used by the applicant, such as the concept of a ‘dossier’ of his information, the concept of a special branch of government monitoring his information and the fact that whitegoods were sold from his shop.
(d)A failure to interpret concerns of the Member about the applicant’s evidence.
(e)General confusion and misinterpretation.
(3)Individually and in combination these errors meant that there was no effective interpretation between the Member and applicant, therefore depriving him of the opportunity described in s425 of the Migration Act 1958.[53]
[53] Applicant’s amended application filed 5 February 2020.
It is submitted for the applicant that there were a number of interpretation errors which, individually and cumulatively, deprived the applicant of the opportunity to give evidence and present arguments in relation to the issues in his case as required by section 425 of the Migration Act 1958 (Cth) (“the Act”).[54] In particular, the applicant points to the:
a)failure to translate the Member’s comments about the availability of complementary protection;
b)the failure to accurately translate what the applicant was saying which in turn may have lead the Tribunal to its conclusion that some of his evidence was ‘vague’ or ‘inconsistent’ and which in turn affected the Tribunal’s assessment of the applicant’s credit;
c)the failure to communicate to the Tribunal Member that the applicant had a ‘severe headache’;
d)failing to accurately translate some of the Member’s comments to the applicant thereby limiting the applicant’s ability to respond to concerns that the Tribunal Member had;
e)the introduction of the term ‘white goods’ which was not used by the applicant in circumstances which then led the member to form the view that the applicant was raising something for the first time;
f)the failure to translate the invitation the applicant made for the Tribunal Member to contact any other person on the Merak boat with him to corroborate his claim that he was on that boat.[55]
[54] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 25.
[55] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 25.
The applicant further submits that the inadequacy of the interpretation generally made the applicant look non-responsive and that the interpretation errors were material and specifically went to the Tribunal’s assessment of the applicant’s claims and his credibility.[56]
[56] Applicant’s submissions filed 5 February 2020, ground 2 paragraphs 25 to 26.
There is no dispute about the law which applies to an alleged interpretation error. As stated by Kenny J in Parera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, the function of an interpreter is ‘to place a non-English speaker as nearly as possible in the same position as an English speaker.’[57] However, not every interpretation error will amount to a jurisdictional error. Rather it is only those errors which are of significance to the decision or the applicant’s claims.
[57] Parera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at [24].
In SZRMQ v Minister for Immigration and Border Protection, Allsop CJ said:
To the extent that interpretation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described as both 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.[58]
[58] SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [9].
Moreover in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [79], Griffiths J noted that:
it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected … It may well be enough that the translation is sufficiently accurate so as to convey the idea or concept being communicated… (emphasis added)[59]
[59] SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [79].
It was further submitted that in cases where credit is in issue, and where adverse credibility findings are made, translation errors may take on greater significance.[60] In this case, the applicant points to the fact that the Tribunal concluded that some of the applicant’s claims were ‘vague, inconsistent and implausible’,[61] and that the findings made were adversely affected by the interpretation errors and were then relied upon to undermine the applicant’s claims.[62] Moreover, it is submitted that the interpretation errors impacted the Tribunal’s assessment of the applicant’s credibility.[63]
[60] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 37.
[61] Court book page 301 at [27].
[62] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 36.
[63] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 37.
It is submitted that when one has regard to the transcript of the Tribunal hearing,[64] it is readily apparent that the overall standard of interpretation in this case was below the required standard to put the applicant in a similar position to an English speaker and to allow the applicant to be heard. Consequently, it was submitted for the applicant that the hearing was not ‘real and fair’.[65]
[64] Affidavit of Mrs Rajani Somasundaram (Tamil Interpreter) sworn and filed 5 February 2020, Annexure ‘Interview’ (“Tribunal hearing transcript”).
[65] Applicant’s submissions filed 5 February 2020 ground 2 paragraph 38; see also SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [9].
In response, the first respondent says that the applicant has merely identified several specific places where he asserts that the interpretation was inadequate. Whilst not conceding that that the passages identified contain translation errors, the first respondent notes that this represents a ‘handful of passages in a transcript of almost 100 pages. When regard is had to the transcript as a whole, the applicant’s submission that the interpreting overall was well below standard cannot be maintained.’[66]
[66] First respondent’s submissions filed 19 February 2020 at paragraph 16.
There is much force to this submission, particularly having regard to the fact that the interpretation was occurring in real time and having regard to the comments by Griffiths J in SZSEI above.
I will address each of the interpretation errors to which the applicant refers.
Complementary protection
Firstly, it is submitted that the interpreter failed to interpret the Tribunal Member’s comments about the availability of complementary protection.[67] The applicant relies upon the translation of the Member’s introductory comments about complementary protection. Whilst the interpretation of the Member’s opening words was not a verbatim interpretation, the applicant concedes that the interpreter then did accurately interpret the Members comments about the specific matters which may give rise to complementary protection.[68]
[67] Applicant’s submission filed 5 February 2020 ground 2 paragraph 25.
[68] Applicant’s submission filed 5 February 2020 ground 2 paragraph 25(a).
When viewed in context, I find that the interpreter conveyed the specific grounds upon which complementary protection might be granted. They also translated the Member’s comments about the criteria required to make out a claim for refugee status.
Moreover, the applicant does not submit that there was a claim they could have made had they understood the concept of ‘complementary protection’ in a different way. It is difficult to see therefore how any translation error in this regard, even if I were to have accepted there was a substantive error, which I do not, could be said to have denied the applicant a fair and real hearing.
Weapon and Ammunition
The applicant points to the fact that whilst he said that there was a ‘weapon’ found in a box, this was incorrectly translated as ‘some ammunition’ being found in a box.[69] Whilst conceding that this was not a factor specifically relied upon in the Tribunal’s reasons, it could have contributed to the Tribunal’s conclusions that the applicant’s evidence was ‘vague’ or ‘inconsistent’.
[69] Applicant’s submission filed 5 February 2020 ground 2 paragraph 25(a).
A fair reading of the Tribunal’s reasons do not disclose that any translation error in this regard, led to the Tribunal misunderstanding the applicant’s claims or evidence. It is clear from the transcript of the Tribunal hearing that the applicant gave the extensive evidence about the incident in the store and his brother’s abduction. It is also apparent that there were points in the interview, where there were difficulties in the Member understanding the applicant’s evidence. The Member, quite appropriately, asked more clarifying questions to ensure that the applicant had a fair and real opportunity to put forward his views.
It is the case that on more than one occasion, the interpreter interpreted the word ‘weapon’ as ‘ammunition’. However, the interpreter did not exclusively refer to ‘ammunition’ instead of ‘weapons’. When read in context, it is clear that the applicant had a fair and reasonable opportunity to put forward his evidence as to what happened in relation to the shop incident, his brother’s alleged abduction and his actions thereafter. There is no proper basis to find that the use of the word ‘ammunition’ instead of ‘weapon’ was a factor which diminished that opportunity.
Importantly, it is clear that the Tribunal did not make any distinction between the interpreter’s use of the term ‘ammunition’ rather than ‘weapon’ given that the Member referred to the applicant’s claims that the shop was searched and that the persons conducting the search found ‘these weapons’.[70]
[70] Tribunal hearing transcript page 54.
It is also noteworthy that at [28] of its decision record, the Tribunal notes that the applicant’s evidence in relation to the ‘shop incident’ and his brother’s arrest changed over time when having regard to the claims made in his written documentation as compared to his interview.[71]
[71] Court book page 301.
Dossier, special branch
A similar analysis applies in relation to the alleged interpretation error arising from the interpreter using the words ‘dossier’, ‘entire dossier’ and ‘special branch’, being terms not expressly used by the applicant.[72]
[72] Applications submissions filed 5 February 2020, ground 2 paragraph 25(b).
In relation to the use of the word ‘dossier’, it is clear from the transcript of the Tribunal hearing that the applicant did not use that word. However it is also clear from the excerpt of the transcript at paragraph 25(b) of the applicant’s written submissions that the interpreter interchangeably uses the word ‘dossier’ and ‘documents’ and ‘details’.[73] When considered in context, it is clear that the Member’s concern around this issue was not whether there was a ‘dossier’ per se about the applicant or just ‘information’ or ‘documents’, but rather who it was that had this information and why they would be interested in the applicant.
[73] Applications submissions filed 5 February 2020.
This is also apparent from [29] of the Tribunal’s reasons where the Tribunal makes it clear that it was focussed on why he believed that there were people who wanted to harm him on his return to Sri Lanka and why they had his dossier in the sense of why they had information about him.[74] Moreover, it is clear from a fair reading of [29] of the decision record that the Tribunal did not make a distinction between the word ‘dossier’ rather than ‘documents’.
[74] Court book at page 301.
As to the use of the term ‘special branch’ it is the case that this too was not a term specifically used by the applicant. However, when asked about who attended the shop on the day of the search when his brother was taken, the applicant referred to:
…Government paid mercenary group.[75]
[75] Tribunal hearing transcript at page 20.
…
…People [who] work privately to the Government. Not…Police…not CID. But work similar to CID.[76]
[76] Tribunal hearing transcript at page 21.
This was translated as:
… paid servants to the Government.[77]
[77] Tribunal hearing transcript at page 20.
…
not actually … directly involved with the Government … but they are kind of …clandestine gangs of men … help the Government.[78]
[78] Tribunal hearing transcript at page 21.
In relation to the use of the term ‘special branch’ the applicant said:
The Government will have my details. Have the details of the wanted people. The Police will not have access to that. There is a separate group for that.[79]
[79] Tribunal hearing transcript at page 22.
This was interpreted as follows:
There will be a special…branch in the government where they will keep all the dossiers of the needed people… in their coffers, so which I don’t know where it is being kept.[80]
[80] Tribunal hearing transcript at page 22.
The reference to ‘special group’, ‘not the police’ and the notion that they held information on ‘wanted people’ was clearly conveyed to the Tribunal. Nothing ultimately turns on the use of the word ‘special branch’ rather than ‘separate group’.
Headache issue
It is submitted for the applicant that at one point he states that he had a ‘severe headache’ and this was not communicated to the Tribunal Member.[81]
[81] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 25(c).
It is clear from the transcript of the interview, the applicant in an exchange with the Tribunal Member about an inconsistency in his evidence regarding what happened after the shop incident when he went to the police station.[82] The applicant said that his intention was to be brief. This was interpreted as ‘… just to make sure it is said in a quick fashion rather than pinpointing every incidents and … also my mind is very much in confusion.’[83] It was in this context that the applicant said ‘… for me I have severe head ache. You might have seen at the start. Even at the start when I give my family details I start like this.’[84]
[82] Tribunal hearing transcript at page 54.
[83] Tribunal hearing transcript at page 53.
[84] Tribunal hearing transcript at page 54.
This comment was translated as follows:
I am in a very confused state of mind right now, even you could of seen when I was giving my … siblings … order I was confused.[85]
[85] Tribunal hearing transcript at page 54.
At this point the Member then directly puts to the applicant that she may conclude that he has altered his evidence today because the evidence previously given would not have assisted his case.[86] The applicant’s answer indicates that he understood the Tribunal Member’s concern and his answer was directly responsive to that concern.
[86] Tribunal hearing transcript at page 54.
Whilst the applicant clearly mentioned that he had a headache, he did not state that he wanted a break, or that he was unable to continue. As stated, his answers were responsive to the questions asked of him. Had the applicant sought a break and that request not translated, there may well have been a proper basis to argue that he was not afforded a fair hearing.
The interpreter’s failure to communicate the fact that the applicant stated he had a headache, as opposed to the fact that he was confused, does not, in my view, give rise to a jurisdictional error. Moreover, as noted by the first respondent in its submissions, earlier in the interview, the applicant asked for a break and this was granted.[87] It is reasonable to assume therefore that if he felt the need to have a break, he would have requested one. No such request was made.
[87] First respondent’s submissions filed 19 February 2020 at paragraph 23; see also Tribunal hearing transcript at page 34.
Importantly, the interpreter did translate the fact that the applicant was confused in giving his evidence.
Failure to adequately translate the Member’s concerns deprived the applicant of procedural fairness
The applicant further points to the fact that some of the Tribunal Member’s comments about the applicant changing his evidence regarding claims made by the police that he was involved in supporting the Liberation Tigers of Tamil Eeslam (‘LTTE’).[88] It is submitted that the translation does not accurately convey the Tribunal Member’s concern that he had lied about this evidence and therefore deprived him of the opportunity to address this concern. Notwithstanding this, the Tribunal ultimately made an adverse finding on this issue at [32] of its decision record.[89]
[88] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 25(d).
[89] Court book at page 302.
Leaving aside the question of whether or not the interpretation of what the Tribunal Member said is sufficient to convey the Tribunal Member’s concerns with enough clarity to allow the applicant to respond, the transcript excerpt at paragraph 25(d) is not the only time that this matter is raised with the applicant.[90]
[90] Applicant’s submissions filed 5 February 2020.
In any event, it is submitted for the first respondent that the translation, whilst not perfect, was sufficient to convey the Member’s concerns that he had changed his evidence.[91] The interpreter says:
… There are contradictions in the statement given then and now. So, she is asking how can she believe your statement.[92]
[91] Respondent’s submissions filed 19 February 2020 at paragraphs 24 to 25.
[92] Tribunal hearing transcript page 54.
There is some force to this submission. The juxtaposition between a statement that there is a contradiction in the applicant’s evidence and a statement of disbelief in the Tribunal Member is, in my view sufficient to convey the concept that the Tribunal Member was seeking a response to a concern that the applicant had given different evidence previously and she had difficulty in believing him.
Moreover, it is further apparent, in my view, from the applicant’s response that he understood the concern about the discrepancy between the evidence initially given and that given at the hearing.[93] He went on to explain that where he says:
… I didn’t go to the same Police Station in both times. In both occasions I didn’t go to the same Police. One is Pettah Police one is Nittambuwa Police. These are the police stations I went. I didn’t go to any other Police. After that I started to live in hiding.[94]
[93] Tribunal hearing transcript page 54.
[94] Tribunal hearing transcript page 54.
In any event, the issue is then immediately raised again by the Member and the applicant again tries to explain his evidence in this regard. No issue is taken with the translation of the further exchanges on this issue. Further, when the transcript is read in its entirety it is clear that the applicant was aware that the inconsistency in his evidence raised concerns about his credibility in relation to this issue.
Whitegoods
It is not disputed that the term ‘whitegoods’ is one which the interpreter used for the first time and one which the Tribunal Member referred to both in questions of the applicant and ultimately in its decision record.[95] Ultimately, however, whether some of the goods which the applicant and his brother sold and transported could properly be described as ‘whitegoods’, was not central to the claims or the manner in which the Tribunal disposed of those claims.
[95] Tribunal hearing transcript page 58.
The exchange referred to at paragraph 25(e) of the applicant’s written submissions do make it clear that the Tribunal Member did struggle to follow the discussion at times and the reference to ‘whitegoods’.[96] It is submitted for the first respondent that when the transcript of the interview is read fairly and in its entirety, it is clear that the Tribunal’s concern was not what the applicant transported, but rather that the issue of the applicant and his brother delivering goods other than batteries to Jaffna was a new claim.[97]
[96] Applicant’s submissions filed 5 February 2020.
[97] Respondent’s submissions filed 19 February 2020 at paragraph 26.
The Tribunal Member’s concerns are articulated as follows:
You had previously claimed, according to this delegate’s decision … that the Army … was after you for selling batteries to the LTTE that the authorities had inspected your shop previously and found records that showed a delivery of batteries to a Tamil area. Now this is different to coming to your store and questioning your brother about the delivery of whitegoods, your evidence has changed over time and I have not seen or read … anything about these numerous visits questioning you about the delivery.[98]
[98] Tribunal hearing transcript page 58.
It does appear at this point in the interview, that the Tribunal Member is concerned about a shift in the applicant’s evidence from being questions about the transportation of batteries to the transportation of whitegoods. Had this line of questioning stopped at this point, there may have been some merit to the applicant’s claim that the use of the term ‘whitegoods’ by the interpreter introduced a term into the inquiry which had not been used by the applicant. However, the discussion on this point continues and the applicant confirms that the goods transported to Jaffna were not limited to batteries but also included, ‘rice cooker, gas cooker, battery … furniture …’[99]
[99] Tribunal hearing transcript page 59.
On balance, when the totality of the interview is considered, it is clear that:
a)the applicant’s evidence was that:
i)prior to the shop incident when his brother was taken, the CID or others had come to his brother’s store and inquired about goods which were being transported to Jaffna, including batteries, rice cookers, gas cookers and furniture;
ii)they were told that they should stop doing this; and
b)the Member expressed concern that the applicant had not previously claimed to have transported anything other than batteries to Jaffna.
The Tribunal Member’s concerns are then accurately reflected in its reason’s for decision at [30] and [37] where the reference is to the delivery of ‘goods’ not ‘whitegoods’.[100]
[100] Court book at pages 302 to 305.
Whilst there was clearly some confusion arising from the use of the word ‘whitegoods’ by the interpreter, ultimately, it is evident that this did not adversely impact the applicant’s capacity to understand the Tribunal’s concerns and to address them.
Similarly, the applicant claims that the interpreter did not accurately interpret the number of visits by the police.[101] The transcript extracted at 25(e) of the applicant’s written submissions is not as clear as it could have been. The Tribunal Member had asked the applicant how many times the Army or Police came to the shop prior to his brother being taken away and questioned the applicant or his brother about the goods they were delivering to Jaffna. The applicant said in response:
At the start they came. But I was not told since I was in the store. My older brother was in the shop. They have made questioning like that. I know the last time they came was three months ago at that I was in the shop.[102]
[101] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 25(e).
[102] Tribunal hearing transcript page 33.
This was translated as:
They would of come on a number of occasions which I wouldn’t have a clue about them because I was inside the store, which I wouldn’t see anybody coming to the … front side of the shop, but only three months ago I saw them coming and discussing matters with my brother.[103]
[103] Tribunal hearing transcript page 33.
However, after a short break, this issue was clarified. The Tribunal Member said:
Ok … so you were saying that … the Police or the CID had previously come to your store… on several occasions, but you only saw one occasion which was 2-3 months before this incident where your brother went missing.[104]
[104] Tribunal hearing transcript page 34.
This was interpreted as:
What you say is because you were in the store you were not aware of the matters happening in the shop. You told only once that was 2 or 3 months before your big brother was abducted you saw CID coming to the shop. You told only one you saw (in Tamil – correct?)[105]
[105] Tribunal hearing transcript page 34.
The applicant confirmed that this was correct. No issue is taken by the applicant with the interpretation of this exchange. When this is read in its entirety, it is clear that the applicant was given a fair opportunity to comment on the number of visits by the authorities prior to his brother’s alleged abduction.
Merak Boat
The applicant asserts that he gave permission for the Tribunal Member to contact other people who were on the Merak boat to confirm that he was there but this was not translated to the Tribunal.[106] It was submitted that had the Tribunal been made aware that he was content for the Tribunal to make these inquiries, this may have impacted on the Tribunal’s assessment of whether or not he was in fact on the boat.
[106] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 25(f).
The difference between what the applicant said and what was translated, is not significant in my view. The Tribunal does not need the consent of the applicant to obtain that type of information. The Tribunal’s response that the applicant had had sufficient time to produce evidence from other people who were on the Merak boat to attest to the fact that he had been present on that boat, was a reasonable one open to it on the material.
In any event, in the Tribunal’s decision record, while it had serious doubt that the applicant was present on the Merak boat, as discussed earlier, it ultimately assessed his claims on the basis that he may have been present.[107]
[107] Court book page 309 at [52].
Applicant’s interest to the authorities 8 years after his departure
The applicant points to the fact when asked why after 8 years, the authorities would still be looking for him, the applicant made reference to his presence on the Merak boat as a possible explanation and this was not translated.[108] So much is evident from the excerpt of the transcript at 25(g) of the applicant’s written submissions.
[108] Tribunal hearing transcript at page 37.
Whilst the applicant refers to his presence on the Merak boat in answer to the question asked about why he would still be of interests, this is only after he says that he does not know why he would still be of such interest. Moreover, although the interpreter does not expressly refer to the Merak boat, they do translate the applicant’s evidence that there were 254 people detained in Indonesia and that these people were considered by the Sri Lankan government to belong to the Tamil Tigers.[109] When viewed in context, it is sufficiently clear that this was a reference to the people on the Merak and therefore the applicant’s answer was adequately translated.
[109] Tribunal hearing transcript at page 37.
Poor interpretation makes the applicant seem non-responsive
The applicant further submits that the poor interpretation at various stages of the interview made him look non-responsive.[110] The example given relating to the Facebook post however, does not in my view make the applicant look non-responsive, but rather evidences difficulties experienced in the parties understanding each other and the efforts undertaken by the Member to persevere until understanding had been achieved.
[110] Applicant’s submissions filed 5 February 2020, ground 2 paragraph 25(h).
It is not uncommon for questions of clarification to be sought where it is clear that a person giving evidence is unclear of or does not fully understand the nature of the questions being asked. This can happen even where all parties speak the same language. The use of interpreters can add another layer of complexity. The example given, however, does not disclose any jurisdictional error.
Failure to translate that the applicant had been ‘…inside. It was like a jail’
Similarly, it is the case that when asked why the applicant had first raised the issue of the removal of money from his brother’s bank account at the hearing before the first Tribunal, he responded by saying:
I was not in that manner, they put me in a detention centre. Was inside. It was like a Jail. … at that situation I was not in the right state of mind.[111]
[111] Tribunal hearing transcript at page 71.
The interpreter did not expressly refer to the applicant being in a detention centre when translating this response. However, this response must be viewed in the context of the whole exchange with the Tribunal Member which is set out at pages 71 to 73 of the transcript. When viewed in context, the interpretation of the applicant’s answers was sufficient to convey the questions asked of him and his evidence in response.
When regard is had to the totality of the interpretation throughout the interview with the applicant, the relatively limited number of ‘errors’ identified and the fact that the key issues and concerns of the Tribunal Member were repeatedly raised with the applicant to ensure that he had an opportunity to understand those concerns and respond, I am satisfied that the standard of interpretation was adequate.
The Tribunal’s main concerns related to discrepancies between claims that the applicant had previously made and claims and evidence advanced at a later stage. This was particularly so given that the applicant was assisted and represented at various stages throughout his application process. These concerns and concerns about the applicant’s vague and, at times, inconsistent evidence were put to the applicant and the applicant was given a fair opportunity to respond.
To the extent that credibility was in issue, there is nothing in the translation issues identified by the applicant, either individually or cumulatively, which could be said to fundamentally challenge the credit findings made by the Tribunal Member so that the translation issue gives rise to a jurisdictional error.
Counsel for the first respondent conceded, correctly in my view, that the interpretation was ‘less than ideal’ in parts.[112] However, he maintained that it was nonetheless ‘sufficient to convey the important pieces of information that the tribunal was asking.’[113]
[112] Court transcript page 28.
[113] Court transcript page 28.
When one considers the transcript in its entirety, including the fact that for the most part, the applicant’s answers to questions were responsive to the questions asked, together with the fact that where it was clear that there was some misunderstanding or miscommunication, the Member took steps to clarify what was being discussed, I respectfully agree with the first respondent’s submissions. This is particularly so when regard is had to the fact that the interpreter was interpreting in real time, that the errors identified by the applicant in support of ground are relatively minor by comparison to the length of the interview and importantly, that the Member returned to deal with the key issues on more than one occasion, giving the applicant an opportunity to respond to the matters raised.
Moreover, I am not satisfied that the applicant has established that the errors in interpretation contributed to the Member’s assessment of the applicant’s credit. This application has a long history. As noted in paragraph [21] of the Tribunal’s decision record, the applicant’s claims were contained in his protection visa application made 18 June 2012, an interview with the Department on 18 June 2012, submissions received from his representative in March 2013 and April 2016.[114] Moreover, the applicant was also made aware of the first Tribunal’s decision and was taken to be on notice of the first Tribunal’s reasons and findings.
[114] Court book page 297.
The key issue in the Tribunal’s view was whether the applicant had a well-founded fear of harm if he were to return to Sri Lanka. In considering this issue, the Tribunal did not accept the applicant’s claims regarding the alleged problems he had when his brother Malik was allegedly taken by a group of armed men after arms were found in a box in their store in Colombo. The Tribunal concluded that his evidence in relation to this incident was ‘vague, inconsistent and implausible.’[115]
[115] Court book page 297 at [27].
In coming to this view, the Tribunal found that the applicant’s evidence about who visited the family’s shop in Colombo changed over time. In particular, the Tribunal noted that in his statutory declaration, the applicant stated that it was an armed group who he thought were from CID.[116] However, at the hearing, the Tribunal noted that the applicant claimed that these people were not directly involved with the authorities, were paid servants of the government or a clandestine gang of men who helped the government.[117]
[116] Court book page 301 at [28].
[117] Court book page 301 at [28].
As is evident from the transcript of the Tribunal hearing, it is clear that the applicant did say in the interview that the people who visited the shop were paid persons who worked for the government but were not part of the CID. The Tribunal’s reliance on this change in the applicant’s evidence, was reasonably open to it.
Nor for the reasons set out above do I find that the distinction in the translation of ‘documents’ to ‘dossier’ is significant. The meaning which the applicant was conveying by his evidence in relation to this was that the government had access to all of his documents and all relevant information relating to him. The reference to the applicant’s information/dossier arose in response to a question as to why the authorities would still do the applicant harm if he were to return, given the time which had passed since the shop incident. In response, the applicant said:
They have got all my details. If I go definitely it will happen to me.[118]
[118] Tribunal hearing transcript at page 21.
This was translated to:
My entire dossier is with them...all my documents… all are with them now.[119]
[119] Tribunal hearing transcript at page 21.
Subsequently, there were some further questions about who the applicant understood held the ‘dossier’ or ‘information’ on him.[120]
[120] Tribunal hearing transcript at page 22.
It is clear from the exchange on this matter, that the applicant understood that the Tribunal was seeking information about who held all of his ‘details’ and that the Tribunal was trying to understand why they, whoever they were, would still be interested in him now if he were to return to Sri Lanka.
It is clear from the Tribunal’s reasons that it was not focussed on the notion of a ‘dossier’ per se being held by the Sri Lankan authorities. At [29] the Tribunal says:
‘In response to the Tribunal’s question about how he knew that his entire dossier or all his documents were with this group …’ (emphasis added)[121]
Moreover, its finding was that ‘the applicant’s evidence regarding the existence of a dossier which includes all the information on him to be ambiguous, somewhat incoherent and contradictory.’(emphasis added)[122]
[121] Court book page 301 at [29].
[122] Court book page 301 at [29].
Similarly, the Tribunal found that the applicant’s evidence regarding the alleged interest in the applicant’s family’s shop and their authorities was inconsistent.[123] The Tribunal referred to the fact that at the hearing the applicant stated that some two or three months prior to the incident with his brother, the authorities had attended his family’s shop on numerous occasions to warn against the applicant’s family delivering goods to the north of country. Whilst the Tribunal does use the word ‘whitegoods’ on one occasion, it is clear that the focus of the Tribunal’s concerns at [30] of its decision record was not in relation to whether the applicant claimed to deliver whitegoods or not. The Tribunal’s concern was the change in the applicant’s claims as to whether the authorities had attended at the applicant’s family’s shop at all prior to the incident where his brother was taken, and how his evidence in relation to this changed over time.
[123] Court book page 302 at [30].
In addition, the Tribunal expressed concern about inconsistencies in the applicant’s claims about what happened when he attended the police station after his brother was allegedly taken. The inconsistencies between his evidence and prior statements, cannot reasonably be put down to a translation error. The concerns that the Tribunal had about the applicant’s credit on this issues were reasonably open on the evidence before it.
As noted by the applicant’s counsel, findings on credit are not necessarily linear.[124] It is notable however, that the Tribunal also had concerns about the applicant’s credit arising from:
a)inconsistencies and vague evidence given about how he came to know that the authorities were after him following the incident with his brother;[125]
b)inconsistencies in the evidence given about his involvement in the running of the family business.[126]
[124] Applicant’s submissions filed 5 February 2020, ground 1 paragraph 11.
[125] Court book page 303 at [34].
[126] Court book page 304 at [35].
Moreover, in coming to its conclusions in this matter, the Tribunal also had regard to the applicant’s legal departure from Sri Lanka in 2009 and further inconsistencies in his evidence about how he came to leave the country.
The Tribunal’s conclusions about the applicant’s claims are then set out at [37] and following.[127] It is clear that in reaching these conclusions, the Tribunal had regard to the totality of the applicant’s evidence and its concerns about the vague and inconsistent nature of his evidence over the lengthy history of this claim. These findings were reasonably open to the Tribunal and are not infected by jurisdictional error arising from any imperfections in the standard of interpreting at the Tribunal hearing.
[127] Court book page 305.
For each of these reasons, on balance, I am not satisfied that the translation errors, either individually or cumulatively, rise to the level of jurisdictional error. Consequently, ground two is not made out.
Ground 3
Ground three was made as follows:
The decision of the Tribunal was illogical.
Particulars
(1)The Member placed emphasis on particular ‘omissions’ in the applicant’s account.
(2)The Member had not told the applicant to provide a comprehensive account, but rather, as was interpreted to him, the Member had the earlier material and was going to look at his case again.
(3)It was illogical, to an extreme level, to expect that applicant to provide a complete account at the hearing in circumstances where he was told that his earlier claims were known to the Tribunal.[128]
[128] Applicant’s amended application filed 5 February 2020.
The applicant notes that the Tribunal Member stated that the Tribunal had before it all prior information submitted by the applicant, including the material before the first Tribunal. At the heart of this ground, the applicant claims that it was therefore illogical or irrational for the Tribunal to conclude that the applicant’s failure to say ‘everything in relation to his case’ as the basis to rely on the applicant’s omissions for concluding his case had not been made out.[129]
[129] Applicant’s submissions filed 5 February 2020 paragraphs 39 to 44.
The applicant refers to and relies upon the comments by Wigney J in Minister for Immigration and Border Protection v SZUXN where he said:
[52] As Robertson J put it in Minister for Immigration and citizenship v SZRKT [2013] FCA 317 … [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship … [84], a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[54] … The judgement of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusions …
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result. … Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out …[130]
[130]Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] to [55].
For the reasons which follow, I accept the first respondent’s submissions and find this ground is not made out.
At the commencement of the proceedings before it, the Tribunal Member explained that the Tribunal would consider the applicant’s claims afresh, in circumstances where this matter had been remitted to the Tribunal (differently constituted). The Tribunal Member however went on to say:
The Tribunal will have regard the evidence that you provide today in addition to the evidence that you have provided to the Department and to the first Tribunal.[131]
[131] Tribunal hearing transcript page 2.
This was translated as:
You had a first review before, after that, in today’s hearing you can affirm your argument by giving more documents if you have. Understand? She is telling you can say more today. Understand?[132]
[132] Tribunal hearing transcript page 2.
The applicant then indicated that he had understood.[133]
[133] Tribunal hearing transcript page 2.
Whilst this particular translation was not entirely perfect, it must be read together with the further explanation given to the applicant by the Tribunal Member where the Tribunal was at pains to explain that:
a)it had before it information the applicant had previously provided; but
b)it would also be asking further questions.[134]
[134] Tribunal hearing transcript page 5.
In relation to the latter the Tribunal said:
What I will be doing today is asking you a number of questions, trying to get as clear a picture of your circumstances as I possibly can.[135]
[135] Tribunal hearing transcript page 5.
This was translated as:
What I am going to do today is, I am going to ask some questions. By asking the question I need to prepare a good picture of you. You need to tell who you are and what had happened. Question answer. Question answer. (emphasis added)[136]
[136] Tribunal hearing transcript page 5.
The Tribunal Member further said:
After answering my questions, you will then have an opportunity to raise any other matters you consider important to your claim.[137]
[137] Tribunal hearing transcript page 5.
This was translated as:
Please, after answering here (her) questions, when your turn comes you can also tell what else had happened. What kind of other problems you have. Can say second time too.[138]
[138] Tribunal hearing transcript page 5.
The Tribunal Member also invited the applicant to raise any questions he had before the hearing commenced. He indicated he did not have any questions.[139]
[139] Tribunal hearing transcript page 5.
Having regard to this exchange between the applicant and the Tribunal, I therefore do not accept that the applicant was told, either by the Member, or erroneously translated by the interpreter, that he did not need to refer to any evidence previously given by him. The premise in particular (b) of this ground is therefore not made out.
In support of this ground, the applicant relies upon the Tribunal’s findings at [32] of its decision record where it states:
Further, the Tribunal notes that in the hearing the applicant omitted the fact that when he went to his local police station, in Nittambuwa, that the police started abusing him that he had been involved in terrorist activities and was assisting the LTTE and that they threatened to arrest him, as he had previously claimed in his statutory declaration attached to his protection visa.[140]
[140] Court book page 302.
That statement, however, must be read in the context of the whole of paragraph [32]. The remainder of that paragraph goes on to set out the evidence which the applicant did give about his attendance at the Nittamubuwa which was not consistent with statements he had earlier made about that incident. It was the inconsistency which the Tribunal was pointing to, not the mere fact that he had not raised something he had raised earlier.
In any event, paragraph [32] must be read in the context of the discussion at [30] and following in which the Tribunal says:
The Tribunal finds the applicant’s evidence regarding the alleged interest in his family’s shop and their activities by the authorities inconsistent.[141]
[141] Court book page 302.
It is the inconsistency in the applicant’s evidence which the Tribunal addresses at paragraphs [30], [31] and [32].[142]
[142] Court book page 302.
It is also noted that in the course of the hearing before it, the Tribunal raised these inconsistencies with the applicant and gave him an opportunity to respond. In particular, the Tribunal raised with the applicant the inconsistency between his evidence before it and the statements made about this incident in his statutory declaration.[143]
[143] See Tribunal hearing transcript pages 50 to 54.
In its reasons for decision, the Tribunal notes that the applicant sought to explain the difference in his evidence on the basis that he was trying to say things quickly but did not accept this as an explanation for the different evidence given.
I respectfully accept the first respondent’s submission that the Tribunal’s assessment at [32] of the applicant’s evidence was reasonably open on the material before it.[144] The mere fact that a different decision maker may have placed different weight on these factors, is not the determinative issue in a claim of illogicality or irrationality
[144] Respondent’s submissions filed 19 February 2020 at paragraph 38.
For each of these reasons, ground three is not made out.
Conclusion
As none of the grounds of review are made out, I order that the applicant’s application be dismissed and the applicant pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 19 February 2021
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