MZABH v Minister for Immigration

[2015] FCCA 1111

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABH & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1111

Catchwords:
MIGRATION – Refugee Review Tribunal – Tribunal reconstituted – whether the Tribunal’s reliance on record of hearing conducted by Tribunal as originally constituted involved jurisdictional error – whether interpretation shown to involve jurisdictional error – whether jurisdictional error consisting of alleged inadequacies of applicants’ lawyer.

Legislation:
Migration Act 1958, ss.422, 424A

Cases cited:
SZDWB v Minister for Immigration and Citizenship [2008] FCA 92
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465

First Applicant: MZABH

Second Applicant: MZABJ

Third Applicant: MZABK

Fourth Applicant: MZABL

Fifth Applicant: MZABM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 383 of 2014

Judgment of: Judge Riley

Hearing date: 23 March 2015

Date of last submission: 14 April 2015

Delivered at: Melbourne

Delivered on: 4 May 2015

REPRESENTATION

Advocate for the applicant: David Eldridge

Solicitors for the applicant: David Eldridge - Lawyer

Counsel for the first respondent: Catherine Symons

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 4 March 2014 and amended on 25 March 2015 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 383 of 2014

MZABH

First Applicant

MZABJ

Second Applicant

MZABK

Third Applicant

MZABL

Fourth Applicant

MZABM

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicants protection (class XA) visas.  The first applicant is the husband of the second applicant.  They are the parents of the third, fourth and fifth applicants.  The first applicant made protection claims.  The other applicants relied on being members of his family unit.

2. The first three applicants were born in Sri Lanka. The first applicant left Sri Lanka in 2008 and went to Malaysia.  He returned to Sri Lanka later in 2008 and went back to Malaysia again shortly after.  The second and third applicants joined the first applicant in Malaysia in 2009.  The fourth applicant was born in Malaysia.  The fifth applicant was born in Australia after the others arrived here as irregular maritime arrivals on 9 August 2012. The applicants are all of Tamil ethnicity.

3. The application to this court was filed without the benefit of legal assistance.  However, by the time of the hearing on 23 March 2015, the applicants had obtained a lawyer.  He advised the court of the amended grounds of review verbally during the hearing.  Without opposition, the applicants were given leave to file an amended application by

   
   

   27 March 2015.  An amended application was filed on 25 March 2015. 

4. Also on 23 March 2015, the first respondent was ordered to give the applicants and the court a copy of the audio recording of the two hearings before the Tribunal and the applicants and the first respondent were permitted to file post hearing submissions.  The court received the audio recordings on 25 March 2015. The applicants’ lawyer emailed chambers confirming his receipt of the audio recordings on 25 March 2015.

5. The applicants did not file written submissions prior to the hearing.  The applicants did file affidavits affirmed by the first applicant on

   
   

   4 March 2014 and 2 March 2015 and filed an affidavit sworn by Ms Provan on 19 March 2015.  The applicants also filed post hearing written submissions on 14 April 2015.

6. The first respondent filed written submissions prior to the hearing on 10 March 2015 and further submissions after the hearing on 2 April 2015.

The claims

1. The first applicant claimed that:

   a)he left Sri Lanka because he was perceived to be wealthy;

   b)unknown people threatened him and tried to extort money from him because he is Tamil;

   c)he tried to get help from the police but instead of helping him the police asked for bribes;

   d)he was vocal about his political views and said that only the Tamil National Party would help Tamils;

   e)he thought his views had reached the authorities who approached him about being involved with the LTTE and threatened him with death;

   f)in 2007, he started getting calls demanding money;

   g)he received hundreds of calls;

   h)just before leaving Sri Lanka for Malaysia, he was approached by two men in plain clothes in a café;

   i)they accused him of supporting the LTTE and the Tamil National Party;

   j)in Malaysia, he started a business venture with a local partner who stole money from him and threatened to kill his daughter;

   k)if he returned to Sri Lanka, he would be harmed or killed by the authorities, or the people who tried to extort money from him or the people who came to the café;

   l)he returned to Sri Lanka briefly and entered and departed with the help of a smuggler;

   m)as he has been outside of Sri Lanka for some time, he would be presumed to be wealthier than before;

   n)his political position was known;

   o)the authorities would not help him because he is Tamil, and, in any event, they could not protect him against people trying to extort money from him; and

   p)there was nowhere in Sri Lanka he could be safe because the people he fears are active all over the country.

The delegate’s decision

1. The delegate refused the application. The delegate noted that the first applicant:

   a)had applied for a skilled visa to enter Australia in June 2006

   b)withdrew that application in June 2010;

   c)had applied for an Australian refugee and special humanitarian visa in 2009 while in Malaysia; and

   d)that application was refused in February 2011.

The Tribunal hearings

1. The applicants attended a hearing before the Tribunal on 31 May 2013.  An interpreter and a lawyer assisted the applicants. The first applicant confirmed that only he was making claims for protection in his own right and the other applicants relied on their membership of his family unit.

2. On 18 September 2013, the Tribunal was reconstituted to a different member. The second member said that she had regard to the record of the first hearing as permitted under s.422(3) of the Migration Act 1958 (“the Act”).

3. The Tribunal conducted a second hearing on 15 October 2013. The same lawyer and interpreter assisted the applicants.

The Tribunal’s reasons

1. The Tribunal noted certain inconsistencies between the first applicant’s entry interview, his statutory declaration and his oral evidence and concluded that the applicant had exaggerated his political activity and did not face a well-founded fear of harm for political reasons.

2. For reasons which it gave, the Tribunal did not consider that the first applicant had a well-founded fear of persecution based on his membership of particular social groups consisting of Tamils, Tamil males from the north, wealthy Sri Lankans, failed asylum seekers or returnees from the west.

3. The Tribunal did not accept that the first applicant had a well-founded fear of persecution based on his late claim of being a Hindu.  The Tribunal noted that the evidence suggested that the first applicant had never been hampered in the past in the practise of his religion and his evidence in this connection was vague and general.

4. Nor did the Tribunal accept that the first applicant had a well-founded fear of harm for reasons of being absent from Sri Lanka for a long time or for having departed Sri Lanka illegally.

5. The Tribunal also considered whether the first applicant faced a real risk of significant harm in Sri Lanka and thus engaged the complementary protection obligations.  However, for reasons that it stated, the Tribunal did not consider that the first applicant faced a real risk of significant harm in Sri Lanka.

Ground 1

1. The first ground of review in the application filed on 4 March 2014 and amended on 25 March 2015 is:

   A. The Refugee Review Tribunal (the Tribunal) erred in, upon convening a second hearing, relying on the evidence of the first hearing in the form of a statement of evidence not available to:

   (a)the Applicants at the Tribunal; and

   (b)the parties in this hearing;

   B. The Tribunal member in the second hearing failed to adequately inform herself of the Applicants’ case.

2. The applicants acknowledged that s.422 of the Act permitted the Tribunal as constituted on 18 September 2013 to have regard to the record of the first Tribunal hearing on 31 May 2013. Section 422 of the Act provides as follows:

   (1)If the member who constitutes the Tribunal for the purposes of a particular review:

   (a)     stops being a member; or

   (b)for any reason, is not available for the purpose of the review at the place where the review is being conducted;

   the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

   (1A)To avoid doubt, this section does not apply after a decision on the review is taken to have been made as provided by subsection 430(2) (written decisions) or subsection 430D(1) (oral decisions).

   (2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

   (3)In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).

3. The applicants also accepted that the law is as stated in SZDWB v Minister for Immigration and Citizenship [2008] FCA 92 at [14] which is as follows:

   … Information given to the Tribunal by the appellant is an exception to the requirement in s 424A(1) by reason of s 424A(3)(b). The reference in the Act to the Tribunal does not depend on the identity of the particular member constituting the Tribunal. Until the Tribunal has made a valid decision on the review that has been initiated by valid application under s 414, it has a duty to perform that particular review. The Tribunal as reconstituted still has properly before it the materials that were obtained when the decision that had been set aside was made (SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 159 FCR 291 at [39], [41]).

4. However, the applicants submitted that SZDWB could be distinguished.  The applicants noted that the first respondent, during the hearing before this court, submitted that the record of the first Tribunal hearing is contained at CB433 to CB439.  Those pages form part of the Tribunal’s reasons for decision under the heading, “First Tribunal Hearing”, and appear to be a summary of what was said and what occurred at and after the first Tribunal hearing. 

5. The applicants argued that it was “not necessarily so” that the summary in the Tribunal’s reasons for decision is the record of the first Tribunal hearing.  The applicants said that there was nothing to indicate that the summary which appears in the Tribunal’s reasons for decision is the work of the Tribunal as first constituted. 

6. The applicants also said that, to the extent that the summary at CB433 to CB439 is the work of the Tribunal as first constituted, it is likely that the exception in s.424A(3)(b) of the Act applied to much of it. However, the applicants said, “failing access to the record we cannot be sure.”

7. Subsection 422(2) of the Act permits the Tribunal to:

   have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

8. That provision permits the Tribunal as reconstituted to have regard to a written summary of the hearing prepared by the Tribunal as originally constituted or an audio recording of that hearing.  In other words, it does not matter whether the summary that appears at CB433 to CB439 is the work of the Tribunal as originally constituted or the Tribunal as reconstituted.

9. Having said that, the summary does appear to be the original member’s work.  At paragraph 57 of the Tribunal’s reasons for decision, the Tribunal refers to “the previous Member’s summary of the oral evidence given at the first hearing”.  In the absence of anything to suggest otherwise, I accept that the summary at CB433 to CB439 is the work of the original Tribunal member.

10. The applicants’ claim that they cannot be sure that the exception in s.424A(3)(b) of the Act applies to much of what is contained at CB433 to CB439 is not indicative of jurisdictional error. It is for the applicants to demonstrate jurisdictional error. It is not enough for them to merely speculate about jurisdictional error.

11. To the extent that the applicants might be alleging some mistake in the summary at CB433 to CB439, there is nothing before the court to substantiate the existence of any such error.  The court can and should accept that the Tribunal’s summary is accurate unless the contrary is shown.

12. The applicants claim that they no longer have a copy of an audio recording of the Tribunal hearings.  However, that claim was only made from the bar table and was not contained in any of the three affidavits filed by or on behalf of the applicants.  Clearly, the applicants did have a copy of the audio recording of the first Tribunal hearing in October 2014, as demonstrated by the affidavit of Ms Provan sworn on 19 March 2015. 

13. In any event, the possibility of an adjournment was raised at the hearing before this court on 23 March 2015 but the applicants did not seek one.  The first respondent was ordered on 23 March 2015 to provide the audio of the two Tribunal hearings to the applicants and the court by 25 March 2015 and the first respondent did so.  It seems likely that the first respondent would have provided the applicants with an electronic copy of the audio of the Tribunal’s hearings if they had asked for it. If not, there seems little doubt that the court would have ordered it, at an early stage, if such an order had been sought. 

14. I do not consider that the applicants can advance their case by their claim of not having a recording when they clearly had the recording at one time and could easily have got another copy if need be.

15. The applicants also said that the Tribunal record might have been affected by misunderstandings of the interpreter.  Again, it is not sufficient to raise speculative possibilities.  It is for the applicant to demonstrate jurisdictional error.

16. Finally, in ground 1B, the applicants said that the second hearing was so brief that the Tribunal as reconstituted was not able to adequately inform herself of the case.  The applicants said that the member had acted in haste and relied too heavily on the original member’s materials.  The applicants said that this gave rise to an apprehension of bias.

17. The second hearing may have been brief but that does not mean that the Tribunal was not adequately informed of the case.  The Tribunal noted at paragraph 57 of the reasons for decision that the member said at the second hearing that she had read the departmental and Tribunal files as well as the previous Member’s summary of the oral evidence given at the first hearing.  That was sufficient.

18. Indeed, it is unusual for the Tribunal to convene a second hearing.  When the Tribunal does so, the hearing is usually brief, for the simple reason that the Tribunal wishes to receive evidence on very confined issues, the bulk of the relevant matters having been dealt with at the first hearing.

19. The applicants have not pointed to anything that raises a reasonable apprehension of bias. The whole point of s.422 of the Act is to allow the Tribunal as reconstituted to rely on the record of the earlier proceedings. If a second hearing were convened at all, it would almost inevitably be brief.

20. There is no substance in ground 1.

Ground 2

1. The second ground of review in the application filed on 4 March 2014 and amended on 25 March 2015 is:

   (a)The Applicants were denied procedural fairness by having to rely on inadequate interpretation despite raising it as an issue in the first hearing and having it raised as an issue by the Tribunal in the second hearing; and

   (b)The Tribunal members decided without apparent independent information that the Applicants’ levels of English proficiency were such that they did not require an interpreter, notwithstanding the Applicants and the Tribunal continued to rely on the interpreter.

2. In this context, I note SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [71] to [81], which are as follows:

   71.The principles concerning mistranslations were recently discussed and analysed at some length in SZRMQ and, in particular, in the judgments of the Chief Justice at
   [13]-[24], Flick J at [42]-[44] and Robertson J at [65]-[75] (noting that his Honour also expressed his agreement at [74] with the Chief Justice’s general comments and his analysis of the authorities). As noted above, that case arose in a context other than s 425 of the Act. It was primarily concerned with the application of common law procedural fairness requirements to mistranslations or non-translations. It is evident, however, that there is some overlap in the relevant principles in a statutory and non-statutory context, even though, as Robertson J observed in SZRMQ at [74],
   s 425 of the Act may pose a “blunter question” of whether the Tribunal has given an applicant an opportunity to appear before it to give evidence and present arguments relating to the relevant issues. I consider that it is unnecessary in this appeal to define with precision the extent of that overlap.

   72.In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this which raises the application of s 425 of the Act is essentially that which was applied in cases such as Perera, SZOYU, Appellant P119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in a s 425 context in the following terms at [29]:

   To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry...

73.In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of
s 425 of the Act but also other relevant provisions, such as

ss 414 and 422B (noting the exhortatory command in
s 422B(3) that, in applying Div 4, the Tribunal must act a way that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]).

74.Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.

75.Nor did the Minister contest the following observations of Allsop CJ in SZRMQ at [17]-[18]:

In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant's statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.

In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:

It is plain that there was a variety of factors operating upon the Tribunal's determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.

76.In SZRMQ, Robertson J agreed with the Chief Justice’s view that there is no requirement, at least for the purposes of procedural unfairness, to establish a causal connection between a mistranslation and the decision-maker’s ultimate conclusion. At [67]-[69], Robertson J said:

Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated. The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.

If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness. (Emphasis added).

77.I respectfully agree with those observations, which were not challenged by the Minister here. I consider that they apply equally to a complaint that there has been non-compliance with the requirements of s 425.

78.In my opinion, Robertson J provided further useful guidance in SZRMQ. For example, his Honour emphasised the importance of distinguishing between a case where the mistranslation or non-translation is frequent or continuous, as opposed to a case where the errors are intermittent (see SZRMQ at [70]). His Honour also drew attention, correctly in my view, to:

(a)the importance of keeping separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see SZRMQ at [73]); and

(b)the distinction to be drawn between a mistranslation and a lack of detail in the relevant question the subject of translation (SZRMQ at [114]).

79.A further relevant principle is that in assessing whether or not one or more mistranslations or non-translations give rise to jurisdictional error, it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected (see generally the observations of Kenny J in Perera at [29]-[31]). It may well be enough that the translation is sufficiently accurate so as to convey the idea or concept being communicated (WACO at [66]).

80.Furthermore, it is necessary to consider not only alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the overall process, but also to have regard to their cumulative effect. As Robertson J said in SZRMQ at [116]:

I turn finally to consider whether, in the aggregate, the mistranslations constituted a denial of procedural fairness. In my view, in the circumstances of this case, they did not. While care must be taken to examine whether errors in translation may have contributed to adverse findings or otherwise have been of significance to the process and thereby to a lack of procedural fairness, in the present appeal the sum of the mistranslations did not rise to that level. The errors of translation were intermittent rather than continuous and did not have a cumulative effect.

81.Finally, as noted above I did not understand the Minister to contest the proposition as stated by Jagot J in SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] that the question whether inadequate interpretation has deprived an applicant of the opportunity given by s 425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”.

1. The Tribunal addressed the issue of interpretation at the first hearing at paragraphs 52 to 54 of its reasons for decision, which are as follows:

   52.At the conclusion of the hearing [the applicant’s lawyer] raised an issue relating to a concern expressed by the applicant during the break as to the quality of aspects of the interpreting provided in the hearing. He described those concerns as “minor issues” and when asked by the Tribunal to expand further said the applicant informed him there were some words which had been difficult, and that the interpretation had been slow. The Tribunal explored this issue with the applicant, who at that point commenced speaking to the Tribunal in English. The Tribunal observed his English language skills appeared well developed, and thought that if there were any interpreting difficulties he would have raised them at the time, and would also have had the benefit of hearing the questions both in English as well as in Tamil. The Tribunal also observed it had not identified any apparent difficulties with the flow of information through the interpreter during the hearing, and noted the applicants’ own adviser had previously indicated a similar observation.

   53.The Tribunal indicated it did not propose to revisit the entirety of the hearing, but if there were aspects the applicant believed were incorrectly or poorly interpreted, he could identify such instances and alert the Tribunal. The Tribunal also indicated it would not make a decision for at least seven days to enable this to occur, and for the applicant to make any further submissions on general issues, or the issue of religion that had been raised late in the hearing.

   54.    No further submissions were received by the Tribunal.

2. The Tribunal addressed the issue of interpretation at the second hearing at paragraph 55 of its reasons for decision, which is as follows:

   The applicants and their adviser, [the applicant’s lawyer], appeared before the Tribunal again on 15 October 2013.  An interpreter in the Tamil and English languages was present.  However, because he was the same interpreter who attended the first hearing the applicant said he had some issues.  He could not remember specific concerns but said he remembers that when he would say something the interpreter would say words in English straight away.  The Member noted that the most important part of hearing is that they can understand one another and asked if he wanted to adjourn the hearing and resume the hearing at a later date with a different interpreter. The applicant said he felt confident enough with his English skills to proceed with the hearing and that he would only use the interpreter when needed. The Member encouraged the applicant to advise if he had any concerns with any aspect of the interpreting at the time.  The hearing proceeded, largely in English and the applicant did not raise any further concerns about the interpreter.

3. The affidavit sworn by Ms Provan also addresses this issue.  Ms Provan listened to the audio recording of the two Tribunal hearings and made what she described as an “informal transcript”.  Her affidavit annexed what Ms Provan described as “the most pertinent excerpts” from her “informal transcript”.

4. The difficulty with this ground is that it is well established that excerpts from a transcript would generally not be sufficient to establish a denial of procedural fairness, because a flaw in the hearing process at one point might be corrected at a later point.

5. In addition, the applicants have not established that the interpreter made any errors at all.  The applicants have not provided evidence of what the interpreter should have said as opposed to what he actually said.  It was not suggested that Ms Provan has expertise in the Tamil language.  She has only recounted excerpts of what was said in English, and added her own commentary, which I give no weight.

6. The court explained to the lawyer for the applicants that, where interpretation issues were raised, it was customary for expert evidence to be provided showing what the interpreter should have said in contrast to what he erroneously said.  The possibility of an adjournment was also raised.  However, the applicants chose to press ahead.

7. In any event, the first respondent conceded that, except for one passage, Ms Provan’s partial transcript accurately recorded what was said in English.  The one passage that the first respondent disputed occurred at the 22.10 minute mark in the first hearing.  Ms Provan said the Tribunal said:

   This has not been raised before and is too speculative to be considered.

   In fact, having listened to the audio recording, I note that the Tribunal actually said:

   There is no evidence before me before that that’s ever been raised [Mr Applicant].  I will take it on board and I’ll consider it but it does seem to me that that’s speculative…

8. The applicant has not explained how either version of that passage is indicative of jurisdictional error.

9. In any event, the decision record of the Tribunal indicates at paragraph 52 that the applicants’ lawyer at the first hearing described the concerns about interpreting as “minor issues”.  The decision record also shows at paragraph 53 that the Tribunal as originally constituted gave the applicants seven days from 31 May 2013 to identify any errors of interpretation and alert the Tribunal to them.  The applicants did not do so.

10. The Tribunal as reconstituted had a second hearing on 15 October 2013.  Clearly, the applicants had had a considerable period of time by then to identify any errors in interpretation.  However, as the decision record shows, when the Tribunal asked the applicant to identify any specific errors, the applicant was only able to say that the interpreter would start speaking English straight away.  Some interpreters are able to do that.  Others have to wait for a whole sentence to end before they can start to interpret.  Either way, it is not indicative of jurisdictional error.

11. It is also noted that the decision record shows at paragraph 55 that the Tribunal offered an adjournment of the second hearing, in the event that the applicants wished to have a different interpreter.  However, the first applicant said that he would proceed in English and only use the interpreter if needed.  There is no jurisdictional error in the Tribunal acceding to the first applicant’s wishes in that regard.

12. The applicants noted that the second applicant was not as proficient in English as her husband.  That may be so.  However, her claims were entirely contingent upon her husband’s.  The Tribunal did not seek to question her, except to confirm that she made no protection claims of her own and relied on her husband’s claims.  The wife also added that she was concerned about her daughter having no protection in Sri Lanka. There is no suggestion that there was any interpreting error in relation to the wife’s evidence.  Consequently, I am not persuaded that there was any jurisdictional error in relation to the interpretation for the wife.

13. Many of the passages in the annexure to Ms Provan’s affidavit consist of discussion about interpretation rather than discussion about the applicant’s claims.  There is also a good deal of commentary and gloss by Ms Provan. 

14. One matter that might have been of significance was the interpretation of the Tamil National Alliance as opposed to the Tamil National Party.  However, at paragraph 71 of its reasons for decision, the Tribunal noted that there is no such thing as the Tamil National Party, and said that it assumed that the first applicant meant the Tamil National Alliance.  Consequently, I do not accept that any confusion in the interpretation of this name could have resulted in an inadequate hearing and a denial of procedural fairness.

15. Another issue which Ms Provan suggested might have involved an error in interpretation is the question of whether the first applicant’s passport was lost, as the Tribunal understood, or stolen, as the applicants now contend.  However, this distinction was irrelevant to the Tribunal’s decision.  The Tribunal as originally constituted noted during the first hearing (as recorded at paragraph 50 of the reasons for decision) that the first applicant’s evidence was that he had left Sri Lanka legally on his own passport, but subsequently lost it.  The Tribunal asked why he did not simply seek to replace it.   The first applicant said that he had a false visa for Malaysia.  The Tribunal said that it seemed highly unlikely that the Sri Lankan authorities would be aware of or interested in that.  

16. In the findings regarding illegal departure, the Tribunal noted at paragraph 96 of its reasons that the first applicant claimed that there may have been no record of him leaving Sri Lanka because he used an agent.  Consequently, the Tribunal considered, from paragraphs 96 to 105 of its reasons for decision, the consequences for the applicants if they had left Sri Lanka illegally.  Ultimately, the Tribunal concluded that the applicants did not face a real risk of serious harm for this reason, or, at paragraph 120, a real risk of significant harm for this reason.  Therefore, any error in interpretation about whether the first applicant’s passport was lost or stolen was irrelevant.

17. All in all, it does not appear to me that the applicants have demonstrated any defect in interpretation that could amount to a jurisdictional error.

Ground 3

1. The third ground of review in the application filed on 4 March 2014 and amended on 25 March 2015 is:

   The Applicants’ legal representative failed to afford them an appropriate standard of representation to the extent that:

   At times instructions were not sought, were ignored and were misunderstood;

   The representative agreed to proposals put by the Tribunal and offered opinions about the Applicants without receiving appropriate instructions,

   He thereby failed to act in the Applicants’ best interests and exposed them to failure which may not have otherwise been the result.

2. The applicants expressly disavowed any suggestion that there had been a fraud on the Tribunal as a result of any actions by the applicants’ lawyer.  The applicants also conceded that the Tribunal had no duty to intervene in the event of incompetent representation, even where a low standard of representation was apparent.

3. Rather, the applicants argued that there had been a denial of procedural fairness because their lawyer had not filed written submissions about the interpretation issue, although he had been permitted to do so, and he had stated to the Tribunal at the second hearing that the interpretation was adequate, without seeking instructions from his client.

4. There was no evidence from the lawyer.  It is possible that, between the first and second hearing, the lawyer had ascertained from the applicants that the interpretation was adequate.  Certainly, at the second hearing, neither the first applicant nor his lawyer was able to point to any specific deficiencies regarding interpretation.

5. I am unable to discern any jurisdictional error in the Tribunal relying on the statements made by a lawyer, where there was no fraud on the Tribunal, and no general duty to intervene in cases of incompetence.

6. More fundamentally, the applicant has not demonstrated that any default of the lawyer resulted in any specific error in interpretation to materially affect the Tribunal’s hearing process or decision. I am not persuaded that this ground has any substance.

Conclusion

1. As none of the applicants’ grounds has been made out, the application must be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  4 May 2015