Dvo16 v Minister for Immigration
[2018] FCCA 3058
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVO16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3058 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority erred in failing to exercise its jurisdiction under Part 7AA of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 473DC, 476 |
| Cases cited: Minister for Immigration and Border Protection v CRY16 [2017] 253 FCR 475 BZAID v Minister for Immigration and Border Protection [2016] FCA 508 |
| Applicant: | DVO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 3540 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 October 2018 |
| Date of Last Submission: | 24 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Paul Bodisco |
| Solicitors for the Applicant: | Norton Rose Fulbright |
| Counsel for the Respondents: | Mr Hamish Bevan |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3540 of 2016
| DVO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 1 December 2016 (“the Authority”), dismissing a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 19 August 2016 refusing the applicant a Temporary Protection (Class XD) (Subclass 785) visa (“TPV”).
The applicant was represented by Mr Paul Bodisco, of counsel. At the hearing Mr Bodisco sought leave to file in Court and rely on a Second Amended Application. That leave was opposed by the first respondent, who was represented by their counsel, Mr Hamish Bevan.
The Second Amended Application is as follows:
“[Grounds 1 and 2 not pressed]
Ground 3: Error of Law – the Tribunal [sic] erred, amounting to jurisdictional error, by failing to consider exercising its jurisdiction, to seek further information from the Applicant, pursuant to the powers contained within Division 3 of Part 7AA of the Migration Act 1958 (Cth) in respect of his claim to fear persecution on account f his ethnicity.
Ground 4: Error of Law - the IAA has misapplied and/or breached section 473DD of the Migration Act 1958 (Cth) in dealing with the submission of the Applicant dated 12 September 2016 by erroneously directing itself that the document did not contain new information, thereby failing to complete the task of jurisdiction embarked upon.
Ground 5: Error of Law – The IAA has made a decision which is legally unreasonable. In directing itself that it had regard to a submission from the Applicant dated 12 September 2016, there remains no discernible reason as to why regard was had to some of the information contained in the submissions and not to other information in the submissions.”
For reasons that were apparent during the discussion between the Court and counsel, leave was refused in respect of Grounds 4 and 5.
At the conclusion of the hearing, I understood counsel for the first respondent not to oppose leave in respect of Ground 3 and the parties asked the Court to determine Ground 3 based on the submissions provided by each of them. In considering Ground 3 I had regard to the evidence of the applicant provided in support, including the affidavit of Dr Christopher Lucas affirmed on 16 October 2018.
Ground 3 contends that the Tribunal failed to exercise its jurisdiction by seeking further information from the applicant pursuant to the powers contained in Division 3, Part 7AA of the Act in respect of his claim to fear persecution on account of his ethnicity.
In a statutory declaration provided by the applicant in support of his visa application, the applicant stated:
“I left Iran because I fear to be killed for being a member of a minority group and for belonging to the Nagravi tribe.
[…]
I would be kidnapped and killed by the Jalali tribe because I am a member of a particular group, the Nagravi tribe.
[…]
Authorities are not willing to protect me because of my ethnicity.”
In considering the issue of the applicant’s ethnicity, the Delegate stated as follows:
“11. As discussed above, I accept the applicant is an Arab. He claims because of his ethnicity he (and other Arabs) are discriminated against in Iran. The applicant’s claims in relation to being discriminated against because of his ethnicity are discussed in Part 3, Is the Fear of Persecution Well-Founded?
[…]
141. The applicant claims if returned to Iran he would be persecuted and discriminated against because of his ethnicity.”
In considering whether the applicant’s fear of persecution is well-founded, the Delegate stated as follows:
“154. The applicant’s claims in relation to discrimination mainly relate to the fact he feels the outcome of his court case (discussed above) was not satisfactory to him and this was because he is an Arab, if he wasn’t of Arab ethnicity the outcome would have been different.
155. The applicant’s claims of personal discrimination because of his ethnicity are unconvincing. There is no evidence before me to suggest the applicant or his family have been subjected to undue discrimination or harassment by the Iranian authorities. I note the applicant claims his father holds nine degrees and has worked most of his life at a government run university. The applicant has four siblings, two sisters and two brothers, at least three of whom are university educated. Both brothers live with their parents in the same house the family has lived in since the applicant’s birth. Notwithstanding this, with consideration to the country of origin information cited above, I find that it is reasonably possible the applicant may face harm, in the form of discrimination, as an Arab on return to Iran.
156. If the applicant returns to Iran, there is a reasonable possibility that he would face discriminatory treatment due to his ethnicity as an Ahwazi Arab. This treatment has been considered in its entirety and is not considered to constitute persecution, both when considered individually or cumulatively.
157. While it is accepted that the applicant may face discrimination, it should be noted that the UNHCR Handbook states that not all forms of discrimination would amount to persecution. Discrimination will amount to persecution only if discriminatory measures:
158. lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.
159. While cultural heritage is generally important and the right to freely express it should be respected, the mere fact that a particular right is denied is not necessarily enough to establish persecution. The importance that the applicant places upon the exercise of the particular right in issue must be considered. In the case of this applicant, he did not claim to be in serious need of wearing Arabic clothes or of speaking the Arabic language in public. There is no indication that the curtailment of the right to express his culture is taken by the applicant to be so oppressive that he cannot be expected to tolerate it. I do not assess that this prohibition will result in anything more than inconvenience for the applicant. I therefore find that there is no reasonable possibility that the applicant will suffer harm on return to Iran for the reason of his being an Ahwazi Arab.”
(Footnotes omitted)
The Delegate further summarised and had regard to a range of country information in respect of the predicament of the Ahwazi Arabs.
Ultimately, the Delegate considered the country information gave rise to a plausible prospect of discrimination and persecution, however rejected that it met the standard for Convention protection, inter alia, because the applicant’s claims of personal discrimination because of his ethnicity were unconvincing; the applicant did not claim to be in serious need to wear Arabic clothes or speak Arabic in public and did not feel oppressed by that curtailment; and, the applicant’s claims in relation to discrimination mainly related to the fact he felt the outcome of his court case was not satisfactory to him and this was because he is an Arab.
The applicant provided a further submission to the Authority on 12 September 2016. The Authority found that the submission contained a discussion in relation as to why the applicant did not agree with aspects of the Delegate’s decision. The Authority did not consider this new information and therefore had regard to it.
In referring to the applicant’s earlier written statement in support of his TPV application, the Authority stated as follows:
“22. In his written statement the applicant also claimed he would be persecuted due to his ethnicity. During the TPV interview the delegate asked the applicant what this meant. The applicant responded that he did not know. He further stated that apart from the tribal conflict and fearing harm from the Chanani tribe, he does not fear returning to Iran for any other reason. He later said he fears from the Iranian authorities because they will cover up any harm he faced from the Chanani tribe as they have connections. He did not claim to fear harm from the authorities on the basis of being an Ahwazi Arab, nonetheless the delegate addressed this in her decision.”
The Authority then summarised the effect of country information as to the plight of the Ahwazi Arabs. The Authority also refered to particular Department of Foreign Affairs and Trade (“DFAT”) information that disclosed that there is a high level of societal discrimination against Arabs in Iran, although it is rarely coupled with community-level violence. The DFAT information assessed that most Arab Iranians did not come to the attention of Iranian authorities and were subject only to low levels of adverse attention by the state. The DFAT information stated that this risk increased dramatically for Arabs who attempt publicly to assert cultural or political rights.
In considering the DFAT reports of a high level of societal discrimination in the form of limitations on access to employment, housing and services, the Authority found that the applicant continued to have access to housing as his immediate and extended family continued to reside in Ahwaz and Sosengerd; and, that the applicant had a demonstrated ability to obtain employment in Iran. The Authority found there was no evidence before it to indicate that the applicant would not be able to return to Iran and obtain employment. The Authority was ultimately not satisfied that the discriminatory treatment the applicant may face on return amounted to serious harm. The Authority stated that:
“26. Having regard to the country information and the applicant’s circumstances, I am not satisfied he will face a real chance of serious harm on return to Iran as an Ahwazi Arab.”
In the interview with the Delegate, the applicant submits that in respect of his ethnicity claim, the Delegate did not allow the applicant an opportunity to be properly heard. The applicant submits that this arose from a combination of language difficulties and the approach of the Delegate. An extract of the transcript of the interview upon which the applicant relies is as follows:
[Delegate] - It also says here that you say that you will be persecuted for your ethnicity what do you mean by that?
[Interpreter] – Speaks in Arabic
[Applicant] - Speaks in Arabic
[Interpreter] – Sometimes because he is Ahwazi sometimes he doesn’t understand my my
[Delegate] – I think it means because you’re an Arab
[Interpreter] – Because what happened Arab Ahwazi sometimes they use different expressions
[Delegate] – Yeah yeah
[Interpreter] – Speaks in Arabic
[Applicant] – Speaks in Arabic
[Interpreter] - He doesn’t know the meaning of it even in Arabic
[Delegate] Well obviously you don’t hold a fear of that then it if you don’t know what it means
[Interpreter] - Speaks in Arabic
[Applicant] – Speaks in Arabic
[Interpreter] – Speaks in Arabic
[Applicant] – Speaks in Arabic
[Interpreter] – Sorry, he is, persecuted by which,
[Delegate] – I think we will start again maybe
[Delegate] – Just he wanted to know by which group.
[Interpreter] – It doesn't say. After that it talks about the Jalali tribe again, but - and we need to be out of this building very soon, so what I'm going to do is ask you a question, so do you want to - just tell me exactly what it is that you fear will happen to you if you return to Iran.
The applicant submitted that the Authority had before it a transcript of the interview with the Delegate and must have been aware that the applicant had not been heard on his ethnicity claim for the following reasons:
a)Miscommunication;
b)The failure of the Delegate to put the required matters to the applicant in respect of his ethnicity claim; and,
c)The wholly unreasonable approach of the Delegate evidenced by the conclusive statement, “So obviously you don’t hold a fear of that, then, if you don’t know what it means.”
The applicant submitted that it was unreasonable in those circumstances for the Authority not to consider exercising its power under s.473DC(3) of the Act and giving the applicant an opportunity to be heard on the basis for the rejection of the claim and the claim generally.
In support, counsel for the applicant referred to Minister for Immigration and Border Protection v CRY16 [2017] 253 FCR 475 where the Full Court of the Federal Court of Australia per Robertson, Murphy and Kerr JJ stated at [82]:
“Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.”
The first respondent submits that it is clear from the transcript that the applicant was given numerous opportunities by the Delegate to say anything he wished about whether his ethnicity was a cause for his fear of harm. Counsel for the first respondent referred to the following exchange between the Delegate and the applicant through his interpreter:
[Delegate]:…Moving on from that, it also says here that you say that you'll be persecuted for your ethnicity. What do you mean by that?
Interpreter: Because sometimes he's Ahwazi, sometimes he doesn't understand my - I think my-----
[Delegate]: No, I think it means because you're an Arab.
Interpreter: Yeah, because what happened, Arab, sometimes they use different expression.
[Delegate]: Yeah.
Interpreter: He doesn't know the meaning of it, even in Arabic.
[Delegate]: So obviously you don't hold a fear of that, then, if you don't know what it means.
Interpreter: Sorry, he's persecuted by which?
[Delegate]: Okay, I think we'll start again maybe.
[…]
[Delegate]: All right. Is there anything, any other reason you fear return to Iran?
[…]
[Delegate]: Okay, but apart from those people, apart from issues to do with the Chanani tribe, is there anything else you fear if you were to return to Iran?
[…]
[Delegate]:…Okay, so my question, I suppose, was, is, apart from the Chanani tribe, your fears because of them, is there anything else you fear if you were to return to Iran?
Interpreter: You mean like killing, from killing or from - what do you mean exactly?
[Delegate]: Any sort of serious harm?
[…]
[Delegate]:… Is there anything else that you wanted to bring up in relation to your claims?...
[…]
[Delegate]: Just make sure that I have all the information here, that's all.
Interpreter: Yeah, what you asked me to bring before are all the evidence I brought all the documents to show the - what happened to me and at the same time, I told you according to the question you asked, I answered most of them.
[Delegate]: Yeah, okay.
Interpreter: Yeah, I don't have anything else to bring later.
The interview with the Delegate had commenced with the Delegate explaining to the applicant that it was “extremely important that you give the Department your full personal and accurate protection claims as early as possible, including during this interview” and warning the applicant that there may not be “another chance to provide these claims.”
In the circumstances, the first respondent submits that the applicant failed to give any evidence about whether his ethnicity was a cause for his fear of harm and that he failed to do so against the background of his written claims; and, the Delegate’s statements at the beginning of the interview about the importance of giving a complete account, and s.5AAA of the Act.
The first respondent submitted that the Delegate set out detailed country information in relation to the position of people with Arab ethnicity in Iran and found that any discriminatory treatment that the applicant would face for reason of his ethnicity did not constitute persecution as it did not rise to the level of serious harm required by s.5H and s.5J of the Act. The applicant does not challenge that finding.
The applicant’s claim that there was a denial of procedural fairness before the Delegate amounting to a denial of an opportunity to be heard with respect to any claim to fear harm in Iran based on the applicant’s ethnicity was opposed by the first respondent because the Delegate gave the applicant numerous opportunities to put forward anything he wished to say in respect of his ethnicity, and the applicant failed to do so.
The first respondent submits that the statement by the Delegate, “So obviously you don’t hold a fear of that, then, if you don’t know what it means” does not accurately reflect the whole of the exchange between the Delegate and the applicant in relation to the issue of the attempts by Delegate to elicit from the applicant why he feared harm in Iran.
The first respondent submitted that the applicant could not establish that he was denied a meaningful opportunity to communicate his claims and substantive information when considering the transcript as a whole and the opportunities given by the Delegate to the applicant to communicate his claims and substantive information.
The first respondent further submits that the applicant was given an opportunity before the Authority to make submissions and, if thought necessary, put forward new information. The first respondent submitted that this was the opportunity for the applicant to address, inter alia, the Delegate’s finding that any discrimination he might face would not be serious harm or constitute persecution.
The first respondent also submits that the Authority’s lack of exercise of the discretionary power under s.473DC(3) was not an unreasonable decision in all the circumstances of this matter. Indeed, the applicant did in fact provide a submission in respect of the Delegate’s decision but did not otherwise ask the Authority to consider any “new information”. I further note that the submission was prepared by the applicant’s representative.
I do not accept the Delegate’s statement, “So obviously you don’t hold a fear of that, then, if you don’t know what it means” as the Delegate’s definitive position in providing an opportunity to the applicant to give evidence about what the harm is that he fears if returned to Iran. The later exchanges quoted above make clear that there was every opportunity for the applicant to say what he feared, and indeed he did so.
Read fairly, the Delegate’s statement “So obviously you don’t hold a fear of that, then, if you don’t know what it means” when asking the applicant about his fear of persecution by reason of his ethnicity, the Delegate realised there was a misunderstanding and immediately said “Okay, I think we’ll start again maybe”. The Delegate then went on to discuss with the applicant in some detail his fear of what may happen to him if he was returned to Iran. I also note that that exchange and that statement by the Delegate “So obviously you don’t hold a fear of that, then, if you don’t know what it means” was said after a detailed explanation with the applicant of the whole of his claims. Plainly, the Delegate appreciated that there was a period of miscommunication and lack of understanding between herself and the applicant which accounts for her statement, “Okay, I think we’ll start again maybe”.
The applicant also relied upon a translation by an Arabic linguistics specialist in relation to those exchanges. The translator made clear that he was not a native speaker of the applicant’s dialect and that the applicant spoke very fast and has a rather “unclear and idiosyncratic speech style in general”.
The transcript provided by the translator discloses that the words said by the Delegate “So obviously you don’t hold a fear of that, then, if you don’t know what it means” was not in fact translated by the interpreter in those terms. Instead, the interpreter stated “What it means is they treated you badly”. The interpreter then said to the Delegate, “Sorry, he’s persecuted by which?”. It is at that point that the Delegate’s decides to start again on that issue.
In particular, the Delegate asked the applicant, “…just tell me exactly what it is you fear will happen to you if you return to Iran”. The applicant’s expert translator said that what was translated was “Ok now tell me exactly what are the fears that are affecting you about your return to Iran”. The applicant responded “I might be killed” and that was translated accurately by the interpreter.
The various exchanges are then translated in detail by the applicant’s expert translator. To my mind, the translations do not reflect mistranslations or misinterpretations of substance. The principles were well summarised by Edelman J in BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at [50]-[54] as follows:
“[50] In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, 19 [29], Kenny J said of an earlier version of s 425 that:
Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.
[51] That statement has been described as the "seminal" statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 [29] (Jacobson J).
[52] The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, "Working with Interpreters: Judicial Perspectives" (2015) 24 JJA 207. The relevant principles are summarised below:
(1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) where interpretation is necessary, it must be adequate to convey “the substance of what is said" or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant's case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;
(8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.
[53] The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [9]):
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
[54] In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding.”
The thrust of the applicant’s evidence was that he feared harm in Iran from the Chanani tribe, that he may be killed by them. Moreover, the expert translator also does not have any real difficulty with the interpreter’s translation of the applicant’s evidence.
In those circumstances, I accept the first respondent’s submission that there is no evidence of any substance by the applicant as to why it is he fears harm in Iran because of his ethnicity, beyond those issues considered by the Delegate and which are referred to above.
In the circumstances, there was nothing before the Authority to suggest to it that a failure to exercise its discretion under s.473DC(3) would cause any procedural unfairness amounting to jurisdictional error.
In the circumstances, Ground 3 is not made out.
Accordingly, there was no error by the Delegate in the nature of a denial of procedural fairness that infected the Authority’s determination.
Accordingly, the proceeding before this Court by way of application filed on 13 December 2016 should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 31 October 2018
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