EOT17 v Immigration Assessment Authority
[2018] FCCA 3271
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EOT17 v IMMIGRATION ASSESSMENT AUTHORITY & ANOR | [2018] FCCA 3271 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Conduct of review – Natural justice CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Other matters |
| Legislation: Migration Act 1958 (Cth), ss.65, 473CA, 473CB, 473CC, 473DB(1), 473DC(1), 473DC(3), 473DD, Pt.7AA |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 WAAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 357 |
| Applicant: | EOT17 |
| First Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | BRG 1022 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 1 June 2018 |
| Date of Last Submission: | 1 June 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| The First Respondent entered a submitting appearance |
| Counsel for the Second Respondent: | Mr McGlade |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 13 October, 2017 and all other outstanding applications filed by the applicant are dismissed.
The applicant pay the second respondent’s costs of and incidental to the application fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1022 of 2017
| EOT17 |
Applicant
And
| IMMIGRATION ASSESSMENT AUTHORITY |
First Respondent
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a national of Iran. He arrived in Australia by boat on 12 March, 2013. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival. In December, 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa. On 24 January, 2017 he was interviewed by a delegate of the first respondent and on 8 February, 2017 the delegate refused the applicant’s visa application.
Because the delegate’s decision was a fast track reviewable decision, on 13 February, 2017 it was referred to the first respondent in accordance with s.473CA of the Act. On 18 September, 2017 the first respondent affirmed the delegate’s decision not to grant the applicant the visa.
The application which initiated these proceedings was filed on 13 October, 2017. On 22 November, 2017 a registrar of this Court made some procedural orders which included an order for the filing of any amended application by 16 March, 2018 and the filing of written submissions 14 days prior to the hearing of the application. The applicant has filed two documents which purport to be amended applications, one in the form of an affidavit filed on 16 March, 2018 and one attached to his written submissions filed on 15 May, 2018.
On 1 June, 2018 in circumstances where counsel for the second respondent did not object, I gave leave to the applicant to rely on the latter further amended application. For ease of reference I will refer to the further amended application simply as the application.
By these proceedings the applicant seeks orders quashing the first respondent’s decision, the issue of a writ of mandamus directed to the first respondent requiring it to re-determine the matter according to law and the issue of a writ of prohibition, restraining the second respondent, his employees, officers, delegates or agents, from acting upon or giving effect to the decision.
The second respondent opposes the application. The first respondent enters a submitting appearance.
The visa application
In his visa application and the documents supporting it, the applicant claimed that:
a)he is a Faili Kurd, born in Tehran, Iran;
b)his parents were born in Baghdad, Iraq. They moved to Tehran because of Saddam Hussein’s regime. The only identification document that was officially issued to him in Iran was what he described as an “Iraqi Kurdish Faili card”, described in the delegate’s decision as a “green card”;
c)he could not go to an Iranian school because he was an “undocumented” Faili Kurd from Iraq. He had four years of home schooling until his family could no longer afford to pay the teacher’s fees;
d)his father was working mainly in Iraq until the factory in which he was employed ceased business. He then worked as an interpreter for the American forces in Iraq;
e)some of his father’s brothers and their friends murdered his father because he was working for the Americans. After murdering his father the same brothers sent a message to his mother telling her that they would kill the family;
f)at the age of 16 he started working as a retailer in Tehran’s bazaar. The city authorities would come almost every week or second week and confiscate his stock and he would have to pay a bribe to have it returned. As he had no documentation other than his green card he could not complain to the authorities;
g)on several occasions he was detained because he had tattoos and was kept in detention for a few days at a time. On one occasion he was detained for a month and accused of being a spy;
h)when he was 21 years of age a maternal uncle told his mother that he had seen the applicant’s father’s murderer in Tehran and that this person had asked how to find the applicant. As he knew what this man could do and because, being undocumented, he could not go to the authorities, he was fearful of being killed. His mother sold her jewellery, he obtained a fraudulent passport with his photo but under a different name and used it to leave the country through Tehran’s airport;
i)his green card was taken from him by people smugglers in Indonesia; and
j)he was a stateless person.
The delegate gave the applicant an opportunity to provide submissions in support of his application. The applicant’s migration agent provided submissions which relevantly included two foreign language news reports entitled Foreign nationals residing in Iran have until 14 January 2017 to extend their identity cards and The Head of the State’s Foreign national Affairs said, “Foreign Nationals residing in the state have until 14 January to enrol in the Phase II of Logistics Scheme regarding their identity cards”. At the time those reports were provided, they had not been translated into English. That translation occurred on 6 February, 2017 two days before the delegate posted the decision to refuse the grant of the visa. The translations were never provided to the delegate.
On 20 March, 2017 the first respondent received submissions on behalf of the applicant which included several country information reports. The first respondent considered the submissions and made decisions about whether the information was new information for the purposes of s.473DC(1) of the Act and otherwise whether to consider the new information in light of s.473DD of the Act.
As part of the submission, the applicant submitted the two translations of the foreign language news reports in support of his claims that he and his family had retained green cards after 2001. The first respondent concluded that the translations (as opposed to the original foreign language news reports) predated the delegate’s decision and were new information for the purposes of s.473DC(1) of the Act. However, it considered that s.473DD was engaged and so the first respondent did not consider the translations as part of its deliberations.
The first respondent accepted that the applicant and his family may have held green cards at some stage. However, the first respondent did not accept that the applicant and his family renewed their green cards every year, or at all, after 2001. It reached that conclusion because:
a)it considered that apparent inconsistencies in the applicant’s entry interview and protection visa interview, namely that:
(i)in the applicant’s entry interview he claimed that when he applied to travel from Iran, “they” seized his green card and did not return it to him; and
(ii)later in the same interview the applicant claimed that the people smugglers in Indonesia took his green card from him;
rendered his evidence about this unreliable;
b)it considered that a further inconsistency between the applicant’s migration agent’s suggestion that the applicant and his family were amongst those Kurds who did not collect their white cards and the applicant’s claim that he and his family renewed their green cards every year, including after 2001 also rendered his evidence on this issue unreliable;
c)country information from the Department of Foreign Affairs suggested to the effect that:
(i)from 2002 green cards were replaced with white cards (Amayesh cards);
(ii)from 2002 green cards were no longer valid; and
(iii)it is probable the majority of Fali Kurd refugees are registered and have Amayesh cards; and
d)when questioned in his protection visa interview, the applicant did not know what a white or Amayesh card was.
Nor did the first respondent accept that the applicant was born in a private clinic and could not attend public school either due to a refusal of the relevant authorities to accept the applicant’s or his family’s green cards. The first respondent relied upon country information which indicated that registered refugee card holders in Iran have access to education and free primary healthcare.
As to the applicant’s claim that he was stateless, the first respondent found that the applicant was born in Iran and that he resided in Iran prior to coming to Australia. The first respondent also accepted that:
a)the applicant’s parents were Faili Kurds who were born in Baghdad, Iraq;
b)the applicant was of Faili Kurd ethnicity;
c)the applicant’s father held an Iraqi birth certificate;
d)his parents were expelled from Iraq by Saddam Hussein’s regime and went to Iran a number of years ago;
e)his father worked in a plastics factory in Iraq and would travel back and forward between Iraq and Iran every three to six months.
The first respondent found that it was likely that the applicant’s father had acquired Iranian citizenship. To reach this conclusion the first respondent reasoned that:
a)in his entry interview the applicant had claimed that his father had both Iranian and Iraqi citizenship;
b)DFAT country information indicated that:
(i)Fali Kurds who can prove Iranian ancestry through the paternal line were eligible for Iranian citizenship;
(ii)Iran had granted citizenship to some 100,000 expellees from Iraq who had proven Iranian origins, including the majority of Fali Kurds; and
c)the applicant’s father’s travel between Iraq and Iran was probably facilitated by him having dual citizenship.
The first respondent concluded, at [19]:
Given citizenship is derived from the father in Iran, I consider it more likely that the applicant was able to acquire Iranian citizenship though his father and this is the reason why he did not obtain a white or Amayesh card when they were introduced from 2001 and knew nothing about them. For these reasons I do not accept that the applicant is stateless.
The first respondent accepted that the applicant’s father worked as an interpreter for the US forces in Iraq from around 2003 and that he may have been killed for his work for the Americans. It did not accept that he was killed by members of his family or that such family members sought to kill him. The first respondent considered that in the applicant’s entry interview he said his father had been killed for working for the Americans and that he is now at risk, but he did not say that his father was killed by relatives. In its reasons the first respondent noted that the applicant was asked to provide reasons in a few sentences, but that he was later allowed the opportunity to elaborate, which he did not seize.
The first respondent further considered that the applicant gave false information in relation to his brother. The applicant initially claimed he had not heard from his brother since he was a child, but later disclosed he had been in contact with his brother and explained that his brother has been seeking citizenship in Sweden for the past 11 years and told the applicant not to disclose their contact.
Ultimately, the first respondent did not accept that the applicant or his family were threatened by his paternal uncles, or any other group or person, as a result of the applicant’s father’s work with the Americans. The first respondent did not accept that this was the reason the applicant left Iran in 2012.
The first respondent accepted the applicant’s claim to have worked in a small store in the bazaar to support his mother when he was 16 years old. On the basis of its earlier conclusions that the applicant did not hold a green card after 2001 and that the applicant likely acquired Iranian citizenship, the first respondent did not accept that:
a)the applicant was selling items illegally;
b)this illegal practice resulted in City Council authorities regularly confiscating the applicant’s stock;
c)the applicant would have to pay bribes to have his stock returned to him; and
d)the applicant could not complain to the authorities because he did not hold any documentation.
The first respondent accepted that the applicant may have experienced low-level harassment such as a warning or a fine for his tattoos and earrings. It did not accept, however, that the applicant was ever detained by authorities for his tattoos and earrings, ethnicity or lack of documentation. For the basis of that conclusion, the first respondent relied on country information, some of which indicates:
a)that persons with tattoos or earrings might come to the attention of security forces resulting in low-level harassment similar to that resulting from dress or hair styles that are deemed improper; and
b)there were no known cases of Iranian Fali Kurds facing adverse attention specifically because of their ethnicity.
The first respondent further did not accept that on such occasions that the applicant was detained he was “bashed and bitten” (the applicant submits the first respondent refers to being “beaten”) as a result of his tattoos and earrings, ethnicity or lack of documentation. It considered that the applicant made this claim in his entry interview but not in his protection visa interview.
In post interview submissions to the delegate, the applicant claimed that tattoos and earrings are seen as an act of rebellion and that the applicant is perceived as having both an anti-government and anti-Islamic stance as religion and government are intertwined. The applicant submitted his fear of political persecution amounted to a fear of religious persecution. The first respondent accepted that the Iranian authorities have denounced tattoos and jewellery on men but did not accept that such people are imputed with anti-regime political opinion and anti-Islamic religious opinion.
The first respondent considered other claims, however, as they are not subject to, or of contention in, any ground of review in this application I will not discuss them further.
The grounds of review
The applicant advances three grounds of review. I will deal with each separately.
The first ground of the application is in the following terms:
The IAA failed to lawfully consider whether documents entitled, “Foreign nationals residing in Iran have until 14 January 2017 to extend their identity cards” (at CB 76) and “The Head of the State’s Foreign National Affairs said, “Foreign Nationals residing in the state have until 14 January to enrol in the Phase 11 of Logistics Scheme regarding their identity cards”, (at CB 78), the English translations of which are dated 6 February 2018, were admissible before it in terms of s. 473DD(a) and s. 473(DD(b)(i) of the Migration Act.
Particulars
(a)Given that the translations of the above documents were dated two days prior to the date of the delegate’s decision, it was legally unreasonable for the IAA not to consider making make enquiries, under s. 473DC(3) or otherwise from the applicant’s migration agent as to when he received the translations, and what efforts he made to get them to the delegate prior to his decision.
Counsel for the second respondent submits that the applicant’s contention that the first respondent should have exercised its power under s.473DC(3) should be rejected because (emphasis in original):
a) first, it was not legally unreasonable not to consider the exercise of the s 473DC(3) power in the circumstances of the case; and
b) second, even if the Applicant could show legal unreasonableness (which is denied), there is nothing before this Court to indicate that, if the IAA made the inquiries the Applicant suggests it ought to have made, this could have yielded a useful result (and, accordingly, any unreasonableness did not give rise to jurisdictional error or, alternatively, should result in the Court refusing to grant the Applicant the relief sought).
The second respondent contends that “another reasonable decision-maker could have proceeded to make a final decision on review without considering the exercise of the s 473DC(3) power to ascertain whether attempts were made by the Applicant to provide the website information to the delegate”.
Both the applicant’s and the second respondent’s submissions focus upon the discretion set out in s.473DC(3) of the Act. However, in my view, that focus is misplaced for the following reasons.
It will be immediately apparent that the particulars are inconsistent with the ground of review. The ground of review asserts that the first respondent failed to “lawfully consider” whether certain documents “were admissible” before it in “terms of ss.473DD(a) and 473DD(b)(i) of the Migration Act”. The particulars, presumably of the unlawfulness of the first respondent’s failure to consider the documents, focuses upon the first respondent not considering whether it should make enquiries under s.473DC(3) of the Act to obtain from the applicant’s migration agent an explanation “as to when he received the translations, and what efforts he made to get them to the delegate prior to his decision”. To understand the position fully, it is necessary to set out the legislation:
Section 473DC provides:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD relevantly provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Subsection 473DC(3) is concerned with the first respondent inviting a person to give new information. New information is defined in s.473DC(1) to be information that was not before the second respondent when the second respondent made the decision under s.65 and the first respondent considers may be relevant. The first respondent had already determined that the two translations were new information and by force of that determination, had accepted that they may be relevant. That must be so because of the terms of s.473DC(1)(b).
Here, the applicant argues that the first respondent ought to have sought out further information which would go, not to his claims made in his visa application and therefore not relevant for the purposes of s.473DC(1)(b), but rather to whether:
a)there were exceptional circumstances to justify considering the new information that the applicant wished the first respondent to consider; and
b)in relation to that new information whether it was not or could not have been provided to the second respondent before the second respondent made its decision under s.65.
The information that the applicant argues the first respondent ought to have sought out was not new information for the purposes of s.473DC(1) and so no occasion for the consideration of exercising the discretion set out in s.473DC(3) arose.
However, the applicant’s argument goes further than reliance upon s.473DC(3) alone. This ground of review includes the words “or otherwise” and the applicant’s counsel’s submissions indicate that the applicant presses this ground on a broader basis than simply a failure to exercise the discretion provided in s.473DC(3).
It is apparent from the first respondent’s reasons that it gave specific consideration to the reception of the translation of the two articles upon which the applicant wished to rely and decided not to consider them because:
a)they predated the delegate’s decision;
b)the delegate raised concerns about the fact that green cards had been out of circulation since 2002;
c)the applicant was given the opportunity to provide written submissions after the interview;
d)it was not satisfied that the documents could not have been provided to the delegate before making his decision; and
e)it did not consider the documents to be credible personal information.
The first respondent said in its reasons:
7. In response to the delegate’s reliance in his decision on country information which indicates that green cards became invalid in 2002 and were replaced with Amayesh cards, the submission claims that this transition has not been as quick or as smooth as the delegate suggests and in support of this claim attached two translated articles which indicates that many regions in Iran are still transitioning from green cards to Amayesh cards. One article is undated but the subject refers to a deadline of 14 January 2017 for foreigners in Iran to extend their identity cards so I am satisfied that this article was published prior to the delegate’s decision. The other article is dated 31 December 2016 which is also before the delegate’s decision. It also attached a copy of the applicant’s mother’s purported green card which has not been translated. I am satisfied that the above is new information which was not before the delegate. I note that during the protection visa interview the applicant was questioned at length about his documentation and his green card and departmental case officers made clear to him their concerns about the fact that green cards had been out of circulation for some time and had been replaced by white cards and Amayesh cards and therefore his claims appeared implausible. Given the applicant had been put on notice in regards to these concerns during the protection visa interview and was represented by the same migration firm at that stage and was given an opportunity to provide any written submissions after the interview, I am not satisfied that the above information was not, and could not have been, provided to the Minister before the Minister made the decision. I also do not consider the country information to be credible personal information. As the green card has been provided without a translation, I also cannot be satisfied that it is credible personal information. I am not satisfied that s.473DD(b) of the Act has been met and I have not considered this information.
In his written submissions, counsel for the applicant argues that considering the importance of the information to the claim and the proximity of the completion of the translation to the delegate’s decision:
a)the first respondent ought to have considered seeking information from the applicant’s agent as to when he received the translations and what efforts he made to get them to the first respondent;
b)such an enquiry was necessary in order for the first respondent to determine whether it was reasonably possible for the applicant to have submitted the documents to the delegate before the delegate made his decision; and
c)it was legally unreasonable for the first respondent not to consider making such an enquiry.
In making that submission, counsel for the applicant referred to Clough v Leahy (1904) 2 CLR 139 as authority for the proposition that absent a legal or Constitutional prohibition, the executive branch of the Commonwealth may ask any question that it chooses to ask. There is no doubt about that proposition. But it does not assist. The issue is whether the first respondent was obliged to ask and whether failing to inquire was legally unreasonable.
More generally, the applicant seems to assert that this is the type of case where the first respondent was under a duty to make an obvious inquiry about a critical fact, the existence of which is easily ascertained. That is to say, the applicant’s argument is that knowing that the relevant translations were completed only two days before the delegate made his decision, the first respondent ought to have enquired of the applicant’s representative to seek some explanation as to why the translations were not put to the delegate.
However, any force in that argument falls away when one considers that the applicant was informed that should he wish to provide new information to the first respondent he would have to provide an explanation as to why that information was not provided prior to the delegate’s decision. The submissions received by the first respondent accompanying the new information made no attempt to suggest that any efforts had been taken to provide the information to the delegate. The reasons of the first respondent and the submissions of the second respondent both emphasise that the applicant retained the same migration agent before the delegate and the first respondent.
I put to counsel for the applicant during oral submissions that the applicant had been told to provide an explanation as to why any new information upon which he wished to rely was not provided to the delegate in the Practice Direction that governs applications to the first respondent. Counsel for the applicant conceded that the applicant had been so told and declined to press this ground any further in oral submissions.
Whilst there is no doubt that there may be circumstances in which the first respondent would be obliged to either consider making, or in fact making, reasonable enquiries about a critical fact which is easily ascertained so as to determine whether new information is not caught by the general provision imposed by s.473DD, this is not one of those cases. The circumstances simply did not require that consideration. The applicant was afforded the opportunity to provide further information to the first respondent and it was made clear that if he wished to rely on new information then he needed to provide an explanation as to why that new information was not provided to the delegate.
Counsel for the second respondent identified Minister for Immigration and Border Protection & Anor v CRY16 [2017] FCAFC 210 and Minister for Immigration and Border Protection & Anor v DZU16 [2018] FCAFC 32 as relevant authority. For the reasons I have set out above concerning the usefulness of s.473DC(3), these cases are of no assistance.
The first ground of review must fail.
The second ground of review provides:
The IAA failed to review the delegate’s decision as required by s.473CC of the Migration Act.
(a) Failure to consider a clearly articulated submission made to the delegate, citing country information, to the effect that whole families have been wiped out because one member has helped the Americans.
(b) Failure to consider a clearly articulated submission made to the delegate, citing country information, to the effect that persons with tattoos have been imputed with a political opinion opposed to that of the government and have been punished by methods including being lashed.
(c) Failure to consider information in the delegate’s decision that some Iraqi refugees failed to obtain Amayesh (white) cards and remain unregistered.
Counsel for the applicant submits that the first respondent must consider the statement of reasons provided by the delegate and the material provided by the Secretary of the second respondent. That is certainly the combined effect of ss.473CC, 473DB(1) and 473CB of the Act. I also accept that for the purposes of s.473DB(1), when conducting the review the first respondent needs to direct an active intellectual process towards the issues and material relevant to the matter: Tickner v Chapman (1995) 57 FCR 451, 462, 495; cf Minister for Immigration v MZYTS (2013) 230 FCR 431 at [38]. Further, I accept that means that the first respondent was required to consider (in the sense of directing an active intelligent intellectual process towards) the submissions made by the applicant or on his behalf to the delegate.
Counsel for the applicant submitted the importance of a “sufficient familiarity with what was put to the delegate and the delegate’s reasons so as to appropriately and fairly approach the evidence of an applicant on review is essential”: SZWAY v Minister for Immigration [2018] FCA 268, at [6]. This too, is uncontroversial. Relying upon SZSSC v Minister for Immigration (2014) 142 ALD 150 at 172-5, counsel for the applicant submitted that ground 2 reveals:
a)a breach of the duty to review; and
b)a failure to deal with a fairly articulated submission.
Before going on to consider the particular matters about which the applicant makes complaint in more detail, however, it is as well to set out some other uncontroversial principles.
First, an applicant bears the onus of establishing that evidence was not considered or was overlooked. That can be a difficult thing to do in the present context because:
a)the first respondent is not required to set out in its written reasons all of the matters that it considered or to which it turned its mind;
b)the first respondent’s reasons are only required to set out the evidence on which its findings on material questions of fact were based;
c)the first respondent is not required to set out all of the evidence before it or to provide reasons for the weight it attributed to each piece of evidence;
Second, the first respondent is not required to consider every document provided to it: AKK17 v Minister for Immigration [2017] FCCA 2486.
Third, inferring that the first respondent has overlooked evidenc to which it was not required to refer in its statement of reasons is not something that should be lightly done, nor can such an inference be drawn merely because of the first respondent’s non-reference to a particular piece of evidence.
Fourth, where the first respondent does not refer to a piece of evidence in its reasons, the appropriate inference to draw is that the first respondent did not consider that evidence to be material in the sense that its findings of fact were not based on that material.
Fifth, where the first respondent expressly stipulates that it has “considered” or “had regard to” certain matters, ordinarily that ought to be accepted at face value: Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [22], [23]; Coker v Minister for Immigration and Border Protection [2017] FCA 929 at [54].
Sixth, in ascertaining whether or not evidence was overlooked, regard ought to be had to:
a)the centrality of that evidence to an applicant’s claims. There is a greater expectation that a decision-maker will engage in his reasons with evidence of such a type;
b)the cogency of the evidentiary material;
c)the place of the evidentiary material in the assessment of an applicant’s claims.
Seventh, the reasons of a decision-maker ought not be construed minutely and finely with an eye keenly attuned to the perception of error.
Finally, counsel for the first respondent referred to Minister for Immigration v SZSRS (2014) 309 ALR 67 where the Full Court said at [34]:
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
The applicant is critical that the second respondent did not refer to some information referred to by the delegate in the delegate’s reasons in the following way:
The Daily Beast also observed death threats and retaliation killings against Iraqi interpreters and their families, “At least 1,000 Iraqis who worked as interpreters for the U.S. have been assassinated over the years. Many were tortured first and some were beheaded Whole families have been murdered because one member of the family made a decision to work alongside U.S. troops and try to make Iraq a better place. Those of us who survive are labeled traitors and subjected to threats. Influential Shiite leaders like Moytada al-Sadr have singled us out in aggressive speeches. Militia leaders are said to have lists of “collaborators.
Counsel for the applicant points out that nowhere in the first respondent’s discussion of the danger to the applicant as a result of his father’s work with U.S. forces is this information referred to, “despite it being of clear and immediate relevance to that issue. It may thus be inferred that the submission and evidence therein were not considered, with the consequence that there has been a fundamental breach of s.473CC”. The criticism is made in the context of the first particular to ground two to the effect that the first respondent failed to consider a “clearly articulated submission made to the delegate, citing country information, to the effect that whole families have been wiped out because one member has helped the Americans”.
The difficulty with this particular is that the applicant made no such submission to the second respondent’s delegate. The highest the applicant’s submission got was “The Applicant’s father was murdered because of his work for the Americans and the Applicant received death threats for his assumed pro-American “heretical” views.” The information extracted above was referred to the second respondent’s delegate by the applicant’s advisers in its written submission made on 16 January, 2017. It was part of the evidence relied upon by the applicant in support of his claims. Nowhere in those written submissions did the applicant’s advisers articulate a claim or submission to the effect of that set out in the first particular to this ground of review. At best, the material was evidence to support the applicant’s claim that he was at risk because he was a family member of his father who had provided assistance to the Americans as an interpreter. But his claims were more specific than that – he claimed that the people that wished to harm him were his paternal uncles and their friends.
To the extent that the applicant argues that the first respondent has failed to consider a submission made to it by him, and assuming that there is a duty on the first respondent to record the submission in its reasons for decision and address it specifically, no submission to the effect of that now contended for by the applicant was made by him to the delegate.
Relevantly, the applicant’s claims, as recorded by the first respondent concerning this issue were as follows:
· When he was about 21 years old, his maternal uncle told his mother that he had seen his father’s murderer in Tehran and had asked him how to find the applicant. His mother suggested that he flee Iran and he obtained a fraudulent passport with a different name and fled Iran in around March 2012.
…
· He fears he will be captured, tortured and killed by his uncles.
The applicant did not suggest that the first respondent’s recitation of his claims was inaccurate. What the first respondent said about this claim was:
Father’s death and threats
20. I accept the applicant’s claim that his father became an interpreter working with Americans in Iraq around 2003 to 2004.
21. The applicant claims that his father’s own brothers and their friends murdered him because they were religious fanatics who could not accept that his father was working with the Americans. He claims it had been a long time since they had heard from their father and that he had not come back to Iran since 2007. He claims that after they killed his father they sent a message to his mother calling them heretics and claiming they would kill them. During the protection visa interview he explained that his father’s brothers preferred to have Saddam in power than the Americans because when the Americans come, they destroy the country and war starts. When he was about 21 years old, his maternal uncle told his mother that he had seen his father’s murderer in Tehran who had asked him how to find the applicant.
22. I note that during the applicant’s entry interview, when asked why he left Iran, he referred to the fact that his father had been killed and had been accused of being a traitor because of the interpreting he did for the Americans and that he is now at risk as well for the same reason. He did not mention that his father had been killed by his own family members and that he was at risk from his own relatives. I have taken into account that during the entry interview the applicant was advised to only provide the reasons why he left Iran in a few sentences but have also considered that the interviewing officer asked him number of additional questions about why he left allowing him an opportunity to elaborate on this claim. For example she asked him how he knew that his father had been killed and whether his mother and brother were also at risk. I note that in response he said they do not want to harm women and that his mother was paralysed and that he has no clue about his big brother who he claimed he had not heard from since he was a child. Despite being asked such questions he made no mention of his uncles killing his father and the relatives he feared. I have also given consideration to the fact that he gave incorrect information about his brother. Although he initially claimed he had not heard from his brother since he was young, only when confronted by the delegate with information the Department had obtained about his brother during the protection visa interview, did he admit that he was in touch with his brother who was in Sweden but who had told him not to say they were in touch as it may “stuff up” his application for citizenship in Sweden where he has been for the past eleven years. I find this creates further doubt as to the applicant’s general credibility. I am also not satisfied that the applicant’s uncles would threaten him or his family after killing his father due to his work with the Americans when they had nothing to do with his work and question why they would wait several years to travel to Iran and look for the applicant with the intention of killing him.
23. On the evidence before me, I accept that the applicant’s father disappeared and was possibly killed as a result of his work as an interpreter with the Americans in Iraq a number of years ago around 2007. I am not satisfied that he was killed by his brothers and that they threatened to kill the applicant and his remaining family in Iran or that he and his family have been threatened by any other group or person as a result of his father’s previous work as an interpreter in Iraq. I do not accept that the applicant left Iran in 2012 for this reason as he has claimed.
As can be seen, the first respondent accepted that the applicant’s father disappeared and was possibly killed as a result of his work as an interpreter. The applicant’s own evidence was against that contained within the report from the “The Daily Beast”. He said that those who were threatening to harm him (his paternal uncles) did not want to harm women or his mother. He was not suggesting that those from whom he had claimed to have received threats wished to “wipe out his whole family”.
In those circumstances and where the first respondent has expressly recorded that it had regard to the review material and its reasons otherwise reflect that it had considered the applicant’s written submissions before the delegate, the clear inference that is available is that the first respondent considered the report but found it not to be material. Further an inference is equally open that the report from “The Daily Beast” was not referred to in the first respondent’s reasons because the first respondent may have considered it but given it no weight and not relied on it in arriving at its findings. In my view, the report from “The Daily Beast” can be sensibly understood as a matter considered by the first respondent, but not mentioned because it was not material.
Before passing from this matter one other observation, made by the second respondent in submissions is worth recording. The applicant was specifically invited to provide a written submission to the first respondent on “why [he] disagree[d] with the [delegate’s] decision” and “any claim or matter that [he] presented to the [delegate] that was overlooked”. The applicant by his agent provided submissions to the first respondent and those submissions made no suggestion whatsoever that the delegate had overlooked a separate or independent claim based upon “The Daily Beast” material.
The second particular to this ground asserts that the first respondent failed to consider a clearly articulated submission made to the delegate, citing country information, to the effect that persons with tattoos have been imputed with a political opinion opposed to that of the government and have been punished by methods including being lashed.
I accept that the applicant’s agent made a submission that having a tattoo resulted in the applicant having an anti-government profile. The agent referred to country information that indicated that the Iranian government punished people for a violation of the dress code policy in a number of ways, including by “floggings”. However, the applicant argues that the first respondent did not give this submission proper consideration.
As developed in oral argument, the applicant’s case was different to that set out in the amended application for review. In oral submissions the applicant argued that, rather than the first respondent not addressing the submission that the applicant would be imputed with an anti-government opinion by reason of his tattoos, the first respondent had unacceptably confined the applicant’s case to the proposition that having tattoos would result in the applicant being seen to have an anti-government profile. The applicant’s counsel submitted (T10-T11):
Moving on, so far as the issue of tattoos were concerned, and I’ve referred to the authority’s reasons at paragraphs 25 to 27. Again at 252 – 251 to 252, the – there was a great deal of country information, in dispersed with commentary, on the opinion not only of the government in Iraq – of Iran, but on the police on tattoos and what would happen with people who did have tattoos. Paragraph 30 on page 252 refers to the Refugee Documentation Centre Ireland report indicates that violations of the dress code enforced by Iranian Government can be punished, for example, by a ban on people completing their studies; harassment from police or other security forces, including the Basij militia; and guidance/warnings and threats, and even fines, problems and the loss of their business licence.
Now, that last – those last few words are relevant because the applicant claimed – and I can’t see that it was disputed by the Immigration Assessment Authority, that he had worked as a retailer in the – a bazaar in Tehran. I don’t – I haven’t been able to find anything – any indication of what he was actually selling in the bazaar, but a flogging and loss of a business licence can – sorry, those consequences can, on this information, clearly flow from the – having tattoos. Now, in addition, the – there was information towards the bottom of that paragraph that the police have broad powers to arrest people for failing to meet what might be called “the modesty test”. And it can be inferred that having a tattoo, visible tattoos, may not pass the modesty test.
So the issue here was not simply, as the authority described at paragraph 30, of perceived political opinion or ideology opposed to the government and Islam, it was simply having a tattoo, being in a group – being identified as having a tattoo could have these consequences visited upon them – upon a person who had a tattoo. Then that, in my submission, wasn’t addressed by the authority at page – at paragraph 30 of its decision
But I accept the second respondent’s submission that the applicant’s contentions faces similar hurdles to those which face his argument based on the first particular to ground two. The first respondent said it had regard to the “review material”. It also read the agent’s submission to the second respondent’s delegate. The first respondent dealt with the applicant’s case concerning tattoos in the following way (footnotes omitted):
25. The applicant claims that he was detained by the Iranian authorities because of his tattoos and earrings on several occasions. As he could not show any identification documents they would interrogate him for longer and accused him of being a spy. He was arrested over ten times and every time he would be kept for several days and on a few occasions he was detained for a period of a month.
26. DFAT has stated that tattoos are increasingly common in Iran- particularly among youth - and DFAT has regularly observed male Iranians with visible tattoos. DFAT is unaware of any recent, specific report of people being targeted by security forces solely for having a tattoo. However, it is possible that a person with a visible tattoo could come to the attention of security forces and result in low-level harassment. While DFAT is not aware of specific penalties that could be imposed for having a tattoo, it is likely that such penalties would be similar to those imposed for dress or hair styles that are deemed ‘improper’. In these circumstances, the usual penalty is a warning or fine. DFAT believes it unlikely that authorities would maintain an interest in someone who had previously come to their attention for having a tattoo, unless the tattoo gave evidence of another crime (e.g. related to national security). Another source claims that while there is no specific law against tattoos, the Iranian authorities use Islamic law to denounce it, as they do with many other trends considered too “Western”. Another source refers to the implementation in 2011 of a moral security plan which also banned men wearing jewellery.
…
28. I accept that the applicant may have experienced some low-level harassment such as a warning or a fine for his tattoos and earrings, but as I have not accepted that he had no identification documents, I do not accept that he was detained on these occasions and interrogated and accused of being a spy or experienced any other harm as a result of his Faili Kurd ethnicity or claimed lack of documentation.
…
30. In the post interview written submission to the delegate it claims that tattoos and earrings are seen as an act of rebellion against the conservative ideologies and beliefs of the Iranian government and thus the applicant is perceived as having an anti-Iranian government stance. It also claims that Islam and politics in Iran are fundamentally intertwined and therefore the applicant’s fear of persecution for political reasons also amounts to fear of persecution for religious reasons. Although I accept that the Iranian authorities have denounced tattoos and jewellery on men as too western, I am not satisfied on the evidence before me that the authorities impute such people (including Faili Kurds) with an anti-regime political opinion and anti-Islamic religious opinion.
As an example of the first respondent’s failure to properly appreciate the claims made by the applicant concerning his tattoos, in oral submissions, counsel for the applicant identified that the first respondent did not apparently consider the gravamen of a report from the Refugee Documentation Centre of Ireland that had been referred to and included with the applicant’s agent’s written submissions. But a perusal of the first respondent’s decision reveals that in fact the first respondent did refer to that report in paragraph 26 (extracted above). The first respondent’s reasons make it clear that not only did it refer to country information that was available to it from its own resources, but also the submissions and material provided by the applicant’s agent. In my view, the first respondent’s reasons demonstrate that it gave proper consideration to this aspect of the applicant’s claims.
That the first respondent did not refer to and describe the various punishments that might be meted out to persons who breached the dress code or who were tattooed is not, in my view, significant. I accept the second respondent’s submissions that the applicant’s complaint was that he was detained in consequence of his tattoos and due to his lack of identification he was subjected to a particularly onerous interrogation and targeting. I accept that the lack of identification was a critical aspect of this claim and it was rejected by the first respondent.
The first respondent considered whether the applicant was subjected to and would in the reasonably foreseeable future be subjected to some kind of ongoing harassment by the authorities merely because of his tattoos and earrings. In considering those matters it referred to the DFAT country information set out in the extracts above. That information suggested that people with tattoos were not targeted by the authorities for that reason but if the authorities sighted a tattoo there was a risk that this might result in low-level harassment and the usual imposition of a warning or a fine.
The second respondent submits that the material presented by the applicant’s agent about the punishments for non-compliance with dress codes and breaches of the moral security plan, properly construed, did not contradict the DFAT information in any material way. I accept that submission. That information did not suggest that the authorities engaged in the ongoing targeting or harassment of persons with tattoos, nor did it suggest that the usual punishment (for those identified by the authorities with tattoos) was not a warning and a fine.
Perhaps the most cogent reason for concluding that the first respondent considered the material that the applicant says was not given proper consideration is that the applicant sought to construe that information in a way which was misleading. Particular emphasis was laid in oral submissions on the information that indicated that transgressors of the dress code were liable to floggings. However, I accept the second respondent’s submissions that the information relied upon by the applicant to make a good claim that indicated that such a method of punishment was used against shopkeepers who failed to dress mannequins appropriately. The applicant could not be so described. The first respondent had plainly read the particular information (the report from the Refugee Documentation Centre of Ireland). It specifically referred to it in its reasons. The only reasonable inference open in those circumstances is that the first respondent did not consider that the material had any particular significance. That the first respondent chose not to refer to this material is, in my view, unremarkable and not indicative that it did not conduct a proper review of the decision made by the second respondent’s delegate.
The third particular to ground two is that the first respondent failed to consider information in the delegate’s decision that some Iraqi refugees failed to obtain Amayesh (white) cards and remain unregistered.
The applicant argues that the delegate found, on the basis of country information that it identified, that some Faili Kurds failed to obtain white cards and remain unregistered. However a perusal of the delegate’s decision demonstrates that it did not make such a finding. Whilst it referred to information from DFAT that bore on the issue of Iraqi refugees failing to obtain white cards, the delegate’s decision contains no findings about that matter.
The applicant asserts that the first respondent failed to consider the information in the delegate’s decision concerning Iraqi refugees and their failure to obtain white cards. He asserts that the failure constituted a failure to conduct a lawful review of the delegate’s decision.
There is no merit in this argument because the first respondent considered the same material that the delegate referred to when discussing that “some Iraqi refugees failed to obtain Amayesh (white) cards and remained unregistered”. The information relied upon by the delegate was contained within two documents described as CISEC96CF13392: Feyli Kurds – obtaining identity travel documents, 17 September 2015 and DFAT, “DFAT Thematic Report: Faili Kurds in Iraq and Iran”, 3 December 2014, CI52F827D91722.
The first respondent recorded in its reasons that “DFAT has stated that it is probable the majority of Faili Kurd refugees in Iran are registered and have Amayesh cards” and “the applicant’s migration agent also claimed that there were a lot of Kurds that did not actually collect their white cards and maybe he is one of them”. It specifically referred to the reports that were referred to by the delegate and to which I have referred above.
In my view, it is clear from those matters that the first respondent considered the evidence that was before the delegate and considered the material within the country information that was before the delegate. In my view the first respondent has conducted a review of the delegate’s decision as contemplated by Part 7AA of the Act.
There is no jurisdictional error evident in the second ground of review.
The third ground of review is in the following terms:
The IAA failed to lawfully consider a claim made in his entry interview that his father had been murdered by his own relatives because he acted as an interpreter for American forces in Iraq.
Particulars
(a) The claim was made in the Faili Kurdish language but incorrectly translated into English.
In support of this claim, the applicant relies on an affidavit of Sam Arya filed on 18 May, 2018. Mr Arya is an accredited interpreter in the Fali language. Annexed to his affidavit is a transcript of the applicant’s entry interview which the affidavit refers to as having occurred on 12 March, 2017 but which occurred on 12 July, 2013. Mr Arya’s evidence suggests that there were some misinterpretations during the course of the applicant’s entry interview. Mr Arya’s translation of the applicant’s entry interview was undertaken by him after the first respondent made the decision the subject of this review.
The relevant paragraph in the corrected translation attached to Mr Arya’s affidavit provides (original interpretation struck out):
2nd Interpreter:
Yeah. You know, first of all, and everybody knows that I am (2:32) and I don’t have any rights, any official rights in the country, and secondly, my father is gone and I was at risk as well to be disappear, such as my father.One of the many, I am Faili Kurd. Everybody knows that Kurdish Faili people have no identity. Secondly, my father side relatives are searching for me to kill me.[Interviewer]: Why are you at risk because – why are you at risk?
2nd Interpreter:
The reason is because we are on family, and my father has been accused that, he is – he’s a traitor, he’s been killed because he was interpreting for the American in Iraq, so this is a treason, so that’s why. I’m his son, I am in danger as well.Why was my father at risk? Actually, my father side relatives say that he betrayed Iraq. It was betrayal to do interpretation. After killing him they would kill his son as well to extinct his generation.In his written submissions, counsel for the applicant suggests that Mr Arya’s translation evidences a misinterpretation of a pivotal point upon which the first respondent relied – that the applicant made the claim in the entry interview that his father was killed by members of his own family. The applicant’s submissions go on:
26….That was not its fault, but it was a mistake of fact nonetheless and the mistake went to an important issue in the case. The question arises as to how that amounts to jurisdictional error?
27. The answer is that the IAA was required to review the delegate’s decision by considering the review material provided to the Authority. That review material contained a recording of the entry interview, containing words actually spoken by the applicant (CB 214). If the IAA did not take into account what was actually said by the applicant it failed to review the decision consistent with its obligation under s. 473CC
In oral submissions, counsel for the applicant developed the argument further by submitting that because the recording of the interview was before the first respondent and the first respondent was required to review the delegate’s decision by considering the review material provided to it, the first respondent failed to review the decision consistent with its s.473DB obligation. In other words, the first respondent did not know what the applicant actually said in his entry interview but proceeded (unknowingly) to make findings against the applicant on the basis of inconsistencies in statements which he did not make. It thereby failed in its duty to properly review the delegate’s decision. The misinterpretation, the applicant submits, resulted in:
a)a sufficiently material error of fact causing a “devastating effect on the applicant’s credibility”; and
b)a failure to consider “highly relevant material” referred to the first respondent for its consideration.
In support of his submission, counsel referred to Craig v South Australia (1995) 184 CLR 163, at 179:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question. to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In oral submissions counsel for the applicant criticised the second respondent’s position that no matter how erroneous the translation the first respondent takes into account, there can be no jurisdictional error. Counsel submitted that if the first respondent is ignorant of a sufficiently material matter then there must be jurisdictional error. Support for that proposition, counsel submits, is found in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32 where Gageler and Keane JJ said:
Jurisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act. There is no reason in principle why jurisdictional error should be confined to error or fault on the part of the decision-maker.
Counsel for the applicant also relied on “authority to the effect that mistranslations of section 425 hearing at the old Refugee Review Tribunal can lead to failure to give a proper hearing”.
Paragraph 22 of the first respondent’s reasons provides (my emphasis):
22. I note that during the applicant’s entry interview, when asked why he left Iran, he referred to the fact that his father had been killed and had been accused of being a traitor because of the interpreting he did for the Americans and that he is now at risk as well for the same reason. He did not mention that his father had been killed by his own family members and that he was at risk from his own relatives. I have taken into account that during the entry interview the applicant was advised to only provide the reasons why he left Iran in a few sentences but have also considered that the interviewing officer asked him number of additional questions about why he left allowing him an opportunity to elaborate on this claim. For example she asked him how he knew that his father had been killed and whether his mother and brother were also at risk. I note that in response he said they do not want to harm women and that his mother was paralysed and that he has no clue about his big brother who he claimed he had not heard from since he was a child. Despite being asked such questions he made no mention of his uncles killing his father and the relatives he feared. I have also given consideration to the fact that he gave incorrect information about his brother. Although he initially claimed he had not heard from his brother since he was young, only when confronted by the delegate with information the Department had obtained about his brother during the protection visa interview, did he admit that he was in touch with his brother who was in Sweden but who had told him not to say they were in touch as it may “stuff up” his application for citizenship in Sweden where he has been for the past eleven years. I find this creates further doubt as to the applicant’s general credibility. I am also not satisfied that the applicant’s uncles would threaten him or his family after killing his father due to his work with the Americans when they had nothing to do with his work and question why they would wait several years to travel to Iran and look for the applicant with the intention of killing him.
The second respondent contends that the mistranslation does not identify any jurisdictional error because “translation errors are errors of fact” and “judicial review is not available in connection with such errors”.
The Full Court of the Federal Court of Australia dealt with the first proposition in WAAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 357 wherein Wilcox, Nicholson and Downes JJ said (at [6]):
… Now at best, if any mistake was made in the translation from the tape, an error of fact may have been disclosed but that would not be supportive of the review which the appellant sought of the Tribunal reasons because it is not a ground of review open either to the primary judge or this Court on the law as established by the Parliament of Australia.
To the extent that the applicant argues in this ground of review that the first respondent failed to consider a claim, the second respondent submits that the first respondent did in fact consider the claim that the applicant’s father was killed by his own relatives and that repetition of a claim (or an integer of a claim) does not result in new or separate claims. I accept those submissions. The first respondent plainly considered the applicant’s claim that his father was killed by his own relatives. However, it did not accept that claim.
Section 473DB of the Migration Act provides:
473DB Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Section 473CB provides for the relevant material (review material) that is to be provided to the Immigration Assessment Authority including “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.
The audio that was provided to the first respondent pursuant to s.473CB(3) falls within the definition of review material. The first respondent was required to consider the review material. However, a consideration of the audio and in particular the words spoken by the applicant were of no assistance to the first respondent given that they were not in the English language. The presence of a translator suggests that the decision-maker was unable to understand the language in which the applicant spoke. Accordingly, a translation of the applicant’s entry interview was necessary. That translation was also part of the review material before the first respondent. On a proper construction of s.473DB the first respondent was required to consider the audio of the applicant’s entry interview, which would have been of little assistance and also the translation of that entry interview which would have been of far greater assistance.
There is no doubt that the first respondent considered the transcript of the entry interview. In my view, the first respondent considered the recording by reference to the transcript in the same way another decision-maker would consider a non-English speaking witness by reference to that witness’ interpreter.
In any event, to the extent that the applicant argues in this ground of review that the first respondent overlooked evidence, a different language notwithstanding, the second respondent submits:
a)the first respondent was not required to consider the evidence, or was entitled to disregard it, because it was not in English: Ali v Minister for Immigration and Border Protection [2018] FCCA 121 at [75]; EEM17 v Minister for Immigration and Border Protection [2018] FCCA 337 at [35]; Cabal v Minister for Immigration [2001] FCA 546 at [25]; and
b)the first respondent committed an error of fact, and the weight the first respondent placed on any evidence is entirely a matter for it: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [197].
In fact what the first respondent did was to rely upon the translated entry interview. The translated entry interview was incorrect. Having regard to the transcript that is now in evidence, the second respondent concedes that there may have been translation errors and that the applicant in fact referred to his father being murdered by his father’s side of the family. Nonetheless, the second respondent argues that the inconsistency in the applicant’s evidence identified by the first respondent by reference to the translation of the entry interview was only one matter which informed the first respondent’s assessment of the veracity of this aspect of the applicant’s case. There were other matters which attracted the first respondent’s attention which told against the applicant’s credit. Further, as the second respondent points out, even on a proper translation, the applicant did not specifically identify his uncles as the murderers. It was only his “father’s side relatives”.
I accept those submissions. At best the misinterpretation is an immaterial error of fact which cannot be traversed on this application. It follows that ground three must also fail.
Conclusion
It follows that the further amended application filed on 15 May, 2018 must be dismissed with costs.
I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 November, 2018.
Date: 16 November, 2018
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