MZAEH v Minister for Immigration

[2015] FCCA 1272

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAEH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1272

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – grounds of Application wholly unparticularised – applicant asserting difficulties with interpretation – matter not previously raised – Tribunal sending s.424A letters to which applicant’s lawyers responded – interpretation issues not then raised – Tribunal’s decision not revealing jurisdictional error – Application dismissed.

Legislation:  
Migration Act 1958, ss.36(2)(aa), 424A

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6

Applicant: MZAEH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 936 of 2014

Judgment of: Judge Burchardt

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Melbourne

Delivered on: 2 June 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application be dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 936 of 2014

MZAEH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 April 2014.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.  The Application filed on 19 May 2014 lists as ground of application:

   “1.    The Refugee Review Tribunal did not afford me procedural fairness.

   2.    The Refugee Review Tribunal applied the wrong legal test.”

2. The applicant’s affidavit in support, filed also on 19 May 2014, merely asserts that the applicant seeks judicial review of the decision and appends the decision of the Tribunal.  On 20 August 2014, Registrar Allaway made orders which, inter alia, gave the applicant the opportunity to file an amended application, a supplementary court book and written submissions.  He did not do so.  There can, of course, be no criticism of the applicant for this failure because given his lack of English and lack of understanding of legal matters, it is not in any way surprising that he was unable to do so.

3. The only reason I mention the matter is that it means that the Court has very little to go on, other than the Tribunal’s decision and the first respondent’s written submissions.  The first respondent’s outline of submissions asserts in relation to both grounds (at paragraph 34):

   “In the absence of particulars, it is difficult to determine the nature of the applicant’s complaint about procedural fairness.”

   and at paragraph 42:

   “In the absence of particulars, it is difficult to determine to which particular legal test the applicant refers and the nature of his complaint about the application of that test.  However, on the face of the Tribunal’s reasons it does not appear that the Tribunal has misstated the law in respect to the applicant’s claims or fallen into any other legal error.”

4. When the matter was called on the day of the hearing, the applicant, who appeared on his own behalf with the assistance of an interpreter, articulated a particular criticism which had certainly not been clear to me from reading his Application and affidavit, although I repeat, that is not a criticism of the applicant.  The applicant, who confirmed that he had had the first respondent’s outline of submissions interpreted to him, complained that he was not given what he described as a good interpreter.  He said the interpreter was of very poor quality and that the answers, as interpreted, were different to what he had himself stated.

5. He asserted that these errors of interpretation had caused the Tribunal to make a different decision to that it ought to have made.  He said some key words had not been conveyed and that his responses appeared to him to be shortened.  I asked him how he was able to say that the interpretation was inadequate when he does not, himself, understand English and the words just indicated were his response.  He said that he was unable to pinpoint the exact reasoning to which he referred, where the Tribunal might have been misled, but that many times he had had the feeling that he was not being interpreted correctly. 

6. Counsel for the first respondent responded to the submissions made and it was submitted that the gravamen of what the applicant was putting was that the answers provided by the interpreter were thought by the applicant not to be as full as the evidence he had himself given.  It was submitted that this did not indicate anything had interfered, so to speak, with the task that the Tribunal undertook in assessing the applicant’s claims.  The fact that the applicant had the feeling that interpretation was not as full as he would have thought proper, did not mean that the applicant’s claims had not been considered.

7. More particularly, counsel took the Tribunal to post-hearing correspondence addressed to the applicant’s legal representatives. At Court Book (“CB”) 250-252, there is set out a s.424A letter to the applicant from the Tribunal dated 25 March 2013. It is clear from CB248 that this was in fact sent to BMA Lawyers, who were acting for the applicant. The Tribunal set out a number of dot points which set out very clearly, “differences” in the applicant’s evidence, as the Tribunal characterised them.  It is equally clear that the applicant’s solicitors responded to that and the material concerned is at CB255-263.

8. A further issue arose in the Tribunal’s mind, which led to another s.424A letter on 26 August 2013, at CB265, to which once again, the applicant’s solicitors responded at CB269-270, together with supporting documentation set out in the Court Book. It should be noted that none of the extensive correspondence forwarded by the applicant’s solicitors raised any questions of interpretation before the Tribunal and there could be no question, on any reasonable reading of the Tribunal’s letter, that the applicant was made well aware of those aspects of his evidence about which the Tribunal was concerned.

9. Counsel for the First Respondent submitted that the Tribunal simply failed to accept the applicant’s factual claims and that any errors in interpretation could have been corrected in the post-hearing submissions. In my view that submission is correct. When one looks at the Tribunal’s decision, it is quite clear that the Tribunal approached the applicant’s evidence very much in the light of the s.424A letters and the responses to them. Given that the applicant is able to say, ultimately, no more in substance than that his answers appeared to him to be truncated in the interpretation process, and that he was expressly unable to point to any particular factual finding affected by interpretation, in my view, the applicant’s complaint cannot be made out.

10. It is clear that errors in interpretation may be such as to vitiate the validity of a hearing by producing an outcome where no real hearing has taken place at all (see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6).. However, this is not that case, because as counsel correctly submits, if any matter raised in the s.424A letters had elicited in the mind of the applicant an understanding that the Tribunal had misunderstood his answers, then it is only reasonable to suppose that his lawyers would have drawn that matter to the attention of the Tribunal in their responses.

11. Accordingly, the matters raised by the applicant’s oral submissions cannot be sustained.  I have, of my own notion, studied the Tribunal’s decision.  It sets out the Application for review, in my view, in a fashion that is fair.  It sets out the history of the Application, once again, in an unobjectionable manner, and the Tribunal was clearly seized of the relevant law, as is plain from paragraphs 9-12, CB297.  The Tribunal clearly had regard to the applicant’s youth, level of education and the difficulties arising from the Tribunal hearing the evidence in a language other than the applicant’s first language.  I note that at paragraph 14, CB 298, the Tribunal recorded:

    “The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance.  On occasions the Tribunal indicated difficulty understanding the applicant.  The Tribunal at each instance clarified the applicant’s evidence.  The Tribunal is satisfied the standard of interpreting at the hearings was reasonable.  The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.”

12. I appreciate that those remarks on the Tribunal’s part do not directly address the issues that the applicant raised, but insofar as questions of interpretation give rise to issues of procedural fairness, it would seem that the Tribunal was clearly mindful of the sort of difficulties that interpretation could give rise to.  The Tribunal traversed the applicant’s account of events and said at paragraph 29, CB301:

    “During the hearing, the Tribunal told the applicant it was mindful of his age and claims regarding his mental health, therefore, it proposed to put the inconsistencies in his evidence to him in a letter using the procedure in s.424A, allowing him additional time to consider his response. The details of the s.424A letter and the applicant’s responses include:…”

    (and the letter and the responses are then paraphrased in a manner which I would regard as entirely fair).

13. The Tribunal addressed the applicant’s claims in detail and did not, so far as I can see, fail to deal with any aspect of the matters he had raised, including his race and the risk of persecution as a failed asylum seeker, and as a person who had departed illegally from Sri Lanka. The Tribunal simply failed to believe the applicant’s substantive claims and on that basis decided that he was not a person to whom Australia owed Convention obligations. The Tribunal, having done that, went on at paragraphs 70 and thereafter (CB314) to consider the applicant’s claims against the criterion arising from s.36(2)(aa) and the complementary protection regime, and once again concluded that the applicant did not meet those criterion.

14. Nothing on my reading of the Tribunal’s decision suggests that the Tribunal fell into error and accordingly, the Application will be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 2 June 2015