MZAHK v Minister for Immigration
[2016] FCCA 1979
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAHK v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1979 |
| Catchwords: MIGRATION – Protection visa – whether absence of “accredited” interpreter will amount to jurisdictional error – application for judicial review dismissed. |
| Legislation: Immigrants and Emigrants Act Migration Act 1958 (Cth), ss.366, 420, 422B, 424A, 425, 429, 429A, Div.4, Pt.7 |
| Cases cited: BZAID v Minister for Immigration and Border Protection [2016] FCA 508 Dhillon v Minister for Immigration and Border Protection [2014] FCCA 552 Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZJTKv Minister for Immigration and Citizenship[2008] FCA 1712 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 |
| Applicant: | MZAHK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1329 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hands |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the Respondents: | Mr Aleksov |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.
The application for judicial review is dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount for legal costs incurred.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1329 of 2014
| MZAHK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This decision concerns an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 5 June 2014, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”), dated 18 December 2013 to refuse to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant was born in the Mullaitivu district in Sri Lanka. He is a citizen of Sri Lanka. His ethnicity is Tamil and his religion is Christian. He arrived in Australia by boat, landing in Cocos Islands on or about 28 July 2012. At the time that he lodged his application for the visa, on 12 December 2012 (CB 1-71), he was in detention at Christmas Island. The Applicant cannot speak English and requires the assistance of an interpreter in the Tamil language. He was assigned a legal representative (Malyon Adronicus Law Pty Ltd) by the Department of Immigration and Border Protection (“the Department”) under the Immigration Advice and Application Assistance Scheme. The representative’s offices were located in Sydney.
His visa application included a statutory declaration (CB 29-32) signed by the Applicant and witnessed by his then representative. The statutory declaration is written in English. There is, under the heading “Interpreter’s Declaration”, a signature by a Mr G, who attests to being an accredited interpreter in the Tamil language and to having accurately and completely interpreted the contents of the declaration from the English language to the Tamil language to the Applicant. In his statutory declaration the Applicant made the following claims:
a)the situation was bad for Tamils in Sri Lanka;
b)in 1987 his father was shot and killed by that Sri Lankan army after which his family were displaced;
c)in February 2009, his brother-in-law and sister-in-law were killed during the shelling by the Sri Lankan army and he was also injured by shrapnel;
d)his brother was taken away in 2009 and has never returned. They suspect that he was taken away by the Sri Lankan army;
e)in 2009, when he was in a camp, he was taken to the CID office and was held and questioned on the basis of their suspicion about his association with the LTTE. When he said he did not have any involvement with the LTTE, they slapped him on the ear;
f)in May 2012, during which time he had a shop in Mullaitivu, the CID told him to report their camp. He was questioned about the LTTE but he told them he was not involved with the LTTE;
g)Mullaitivu was under LTTE control and the authorities considered all residents in Mullaitivu to be LTTE supporters;
h)he was released but informed that he would need to report to the CID whenever required;
i)he was scared as people in similar situations were never seen again;
j)he left Sri Lanka with the help of smugglers. His brother “A” was granted a protection visa in Australia;
k)since he has been in Australia the Army has come to his house to enquire about him and has advised his family to move to another place if they come again;
l)he believes that if he returns to Sri Lanka, he would face a real chance of serious physical harm and could be killed; and
m)he believes he will be harmed because of his race, religion, imputed political opinion and because he belongs to a particular social group of being a young Tamil.
There is a photocopy of a CD in the Court Book (“CB”), which is described as “PV interview” conducted by the Department on 9 October 2013 (CB 71). A transcription of this CD has not been filed by any party in these proceedings. In her decision record, the delegate described the recent claims and oral evidence from the interview before her on 9 October 2013 relevantly as follows (CB 89-90):
·The applicant’s father was shot and killed by the Sri Lankan Army (SLA) in the family’s home in 1987.
·The applicant and his family were displaced several times during to the conflict.
·The applicant’s brother in law and sister in law were killed in shelling incidents in February 2009.
·The applicant was injured in the shelling.
·The applicant’s brother has been missing since approximately March 2009. He was last seen in Vavuniya and was intending to flee the country.
·While in an IDP camp the applicant was taken by the CID, interrogated and beaten unconscious.
·In May 2012 the CID came to the applicant’s home and requested he go to the army camp for questioning.
·The applicant was questioned for approximately 45 minutes regarding his knowledge of LTTE members.
·Many people in the applicant’s village have been abducted by unidentified persons.
·The applicant was scared for his life and feared he would be abducted or killed by Sri Lankan authorities.
·The CID has gone to the applicant’s home three times since he left Sri Lanka looking for him.
·If her returns to Sri Lanka the applicant will be harmed by security agencies based on his race, religion, imputed political opinion and belonging to a particular social group of young Tamil.
An application for review of the delegate’s decision was made on his behalf, by the Applicant’s then legal representative, on 10 January 2014 (CB 139-166).
On 26 February 2014, the Applicant was invited to appear before the Tribunal on 15 May 2014, to give evidence and present arguments relating to the issues in his case. In the correspondence sent to the Applicant’s representative, the representative was informed that a written submission setting out all the claims made and maintained by the Applicant should be provided by 8 May 2014, along with a witness statement setting out any witness evidence to be given at the hearing by that same date (CB 172). No submission or witness statement was provided to the Tribunal prior to the hearing. At the hearing held in Sydney, various news articles in English were provided, together with untranslated documents in the Tamil language (CB 179 to 199). The Applicant appeared by video link from the Tribunal registry in Melbourne, his representative appeared by telephone link from Sydney, as did the Tamil interpreter. The Tribunal Hearing Record records an interpreter in “Tamil (Sri Lankan)” as being “not accredited” (CB 200). In the decision record, the Tribunal noted that, whilst the Applicant’s representative attended at the hearing, no submissions were made by the representative on the Applicant’s behalf. The Tribunal notes in its decision that the Applicant’s representative was given an opportunity to provide a written submission by 29 May 2014, but that no written submission had been received (CB 210 at [26]).
Tribunal decision
The Tribunal stated in its decision record that it did not find the Applicant to be a credible witness, that his answers were vague and at times contradictory. The Tribunal stated that, in particular, it “found his description of life in an LTTE controlled area at odds with the available country information. His claims about the incidents in 2009 were contradictory” (CB 211 at [32]).
The Tribunal found that the Applicant’s claims in relation to the 2009 and 2012 incidents were not credible, noting that:
a)the Applicant had given three different accounts of the 2009 incident, which the Tribunal considered varied in a substantive manner; and
b)the Applicant’s evidence in relation to the 2012 incident was contradictory and, having regard to the country information, appeared to relate more to general questioning undertaken by the Army about a planned demonstration in the Applicant’s area, rather than the Applicant’s links to certain organisations as claimed.
The Tribunal recorded that it had informed the Applicant at the hearing that it was concerned he had given three versions of what occurred in the questioning in 2009 (CB 211 at [35]):
a)in his statutory declaration, he declared that he had been slapped across the ear during the questioning;
b)at the interview with the delegate, he said that he had been beaten unconscious; and
c)at the Tribunal hearing, he said that he had been assaulted and bashed.
The Tribunal records the Applicant’s response was that when the statutory declaration was being prepared, he had said that “he had passed out” when he was being questioned, and that he did not know what the final version of his statutory declaration said.
The Tribunal said that it did not accept the Applicant’s evidence that the contents of the statutory declaration were not read to him in Tamil (CB 211 at [37]). In making this finding, it relied on the attestation by the interpreter (see [3] above).
The Tribunal found the Applicant’s evidence regarding the 2012 incident contradictory and lacking in credibility (CB 212 at [38]-[41]).
The Tribunal found that the Sri Lankan authorities did not have any ongoing interest in the Applicant. The Tribunal referred to the fact that the last approach by the CID or the Army to his family was in November 2012, save for an approach made three weeks before the Tribunal hearing. The Tribunal said that it would take into account the timing of this latter claim (CB 212-213 at [42]-[46]).
The Tribunal considered country information regarding the situation in Sri Lanka. It found that, although Tamils in Sri Lanka were in need of international protection around the time of the civil war, the situation in Sri Lanka had improved and, at the time of decision, only Tamils with particular adverse profiles were likely to require international protection. As a result of these findings, and having regard to the Applicant’s claims, the Tribunal found that the Applicant did not face a well-founded fear of persecution in Sri Lanka by reason of any actual or imputed political opinion (CB 217-221 at [78]-[111]), nor by reason of being a Tamil (race) (CB 213-215 at [47]-[60]). For essentially the same reasons, the Tribunal concluded that the Applicant did not face a well-founded fear of persecution by reason of being a member of a particular social group of ‘young Tamils’ (in addition to the fact that the Applicant was now 37 years old) (CB 215-216 at [62]-[67]).
The Tribunal considered country information regarding the treatment of Christians in Sri Lanka (especially Catholic Christians, such as the Applicant), and found that the evidence did not suggest that the Applicant faced a well-founded fear of persecution by reason of his religion (CB 216-217 at [68]-[77]).
The Tribunal considered whether the Applicant faced a well-founded fear of persecution by reason of being a returned failed asylum seeker, or a returned failed Tamil asylum seeker. The Tribunal accepted that the Applicant had left Sri Lanka unlawfully, and that he may be charged under the Immigrants and Emigrants Act, but found that this would lead to no more than a fine. The Tribunal found that any such fine would be the result of the enforcement of a law of general application; and, although it accepted that the Applicant might be questioned by Sri Lankan authorities upon his return, it found that this did not amount to persecution. The Tribunal did not find that the Applicant may be detained upon his return to Sri Lanka (CB 221-223 at [112]-[126]).
The Tribunal considered the Applicant’s claims cumulatively, and found that he did not face a well-founded fear of persecution by reason of his cumulative claims (CB 223-224 at [127]).
The Tribunal considered the Applicant’s claims to complementary protection. Where the Applicant’s complementary protection claims overlapped with his Refugee Convention claims, the Tribunal expressed its complementary protection findings in the same terms as it had expressed its Refugee Convention findings.
With respect to the claim of significant harm as a failed asylum seeker, the Tribunal referred to its earlier finding that the Immigrants and Emigrants Act was not discriminatory or selectively enforced, and that the Applicant would be questioned upon his return, but that the Applicant did not have a profile which would attract adverse attention from the authorities. It also noted country information indicating that some returnees had been remanded in custody after being charged under the Immigrants and Emigrants Act and a report that one person had been harmed whilst on remand. Based on other country information, however, the Tribunal found that only persons with an adverse profile were exposed to this kind of treatment, noting the Applicant did not have such a profile (CB 224-227 at [128]-[156]).
Judicial Review
The Applicant filed an amended application on 30 March 2016, in which he specified eight Grounds of judicial review as follows:
1. The Tribunal breached section 420 of the Migration Act when it relied on the declaration made by an interpreter employed by the first respondent who was not an accredited interpreter despite his averment to the contrary. (CB -32).
2. The Tribunal has not afforded natural justice and/or procedural fairness to the applicant when it accepted the interpreter’s declaration over the applicant’s evidence.(CB 211)
3. The Tribunal breached section 414 of the Migration Act.
4. The Tribunal breached section 420 of the Migration Act when it applied the country information it located about CID officials questioned Sri Lankan deported from Australia, Saturday 29 March 2014 ( at paragraphs149& 150 of its decision at CB-226) to the applicant’s case.
5. The Tribunals finding (at paragraph 150 at CB 226) of its decision about the insinuation that the person deported from Australia was persecuted due to people smuggling, criminal activity or an outstanding warrant was not supported by evidence.
6. The Tribunal breached section 424A of the Migration Act when it failed to give written notice to the applicant about the alleged inconsistencies about him being slapped on the ear, beaten unconscious or bashed during the questioning by CID in 2009 ( CB 211/212) (SCB pages 26-28) and thereby fell into jurisdictional error.
7. The Tribunal has not assessed the applicant’s claim cumulatively and thereby breached section 414 of the Migration Act.
8. The Tribunal has not assessed the applicant’s integer claim and fell into jurisdictional error.
Grounds one and two
I agree with the Minister that Grounds one and two can be treated together. As argued in the Applicant’s Outline of Submission filed on 5 April 2016 and by his Counsel in the proceedings, these Grounds are centred on two complaints, which the Applicant asserts give rise to jurisdictional error. The first relates to the question of the qualification of the interpreter and the standard of interpretation. The second relates to the fact that the Tribunal hearing was conducted using a video link, in which the Applicant was located at a separate Tribunal registry office alone.
The Interpretation Complaint
I have found the Applicant’s submissions regarding the qualifications of interpreters used at various points, prior to and at the Tribunal hearing, confusing.
The Applicant’s Grounds of review regarding the qualifications of interpreters are directed to the Tribunal’s adverse credibility findings, regarding the Applicant’s claims about being questioned in 2009 (see [8] to [10] above).
In his written submissions, the Applicant relevantly put his argument in this way:
10. The applicant contends that the interpreter employed by the first respondent in preparing his statutory declaration was not an accredited interpreter as claimed and was not truthful when he declared that he was an accredited interpreter (CB 32). The applicant enclosed an email correspondence from Robert Foote, Manager NAATI (National Accreditation Authority for Translators and Interpreters) to this submission to support his contention. The interpreter employed by the Tribunal was also not a qualified interpreter (CB 200).
11. The Applicant’s claim was that the alleged inconsistencies about him being slapped on the ear, beaten unconscious or bashed during the questioning was not due to his inconsistencies but due to incompetence of the interpreter’s employed at various stages. This was further exacerbated by the fact that the hearing was done through video link and the applicant was to fend himself alone in a hearing room in Melbourne. (SCB page16)
I note that the attached email referred to in the written submission from Mr Foote, is in relation to the interpreter used in preparing the Applicant’s statutory declaration (CB 32). A Mr G attests to having interpreted the contents of the Applicant’s statutory declaration from the English to the Tamil language to the Applicant and provides, at the end of his name, a number (No 472067). Mr Foote states in the email correspondence, dated 5 March 2015:
NAATI is the only body which accredits translator and interpreters in Australia. The number 427067 is not a NAATI number which for individuals with an accreditation would be a number between 00001 and 90072 (as of today). I know some agencies provide there interpreters with their own reference number but I am not in a position to know that this particular number might refer to.
Although the Applicant’s written submissions refer to the lack of accreditation by Mr G and the interpreter used at the Tribunal hearing, Counsel for the Applicant submitted that the concern was with the interpreter used at the “delegate’s hearing”. I can find no reference in the Court Book to the identification of the interpreter used during the Applicant’s interview with the delegate. There is of course a photocopy of a CD, said to be a PV interview, but this has not been transcribed.
In the circumstances, I shall assume the complaint of the Applicant is directed to the question of the accreditation of the interpreters made available to the Applicant during the Tribunal hearing, in the preparation of his statutory declaration annexed to his visa application, and in the interview conducted by the delegate.
The Minister’s submissions dealt with the Applicant’s Grounds one and two as follows:
15. The applicant alleges that the interpreting of the initial statement was not done by a NAATI accredited interpreter, based on an email from Mr Foote, of NAATI. Five points need to be made about these allegations.
(i) Whether or not the interpreter was NAATI accredited is beside the point. In order for interpreting problems to amount to jurisdictional error, the quality of the interpreting must be so poor as to practically deprive the applicant of a fair and meaningful opportunity to present his case.
(ii) If an applicant is to succeed in this ground of review, it is for him to prove – through admissible evidence – that the interpreting was faulty and that this compromised the presentation of his case.
(iii) It is trite that the assertions made in the application and the written submissions, annexing the email, are not admissible evidence.
(iv) The suggestion that the interpreting problems were exacerbated by the manner in which the oral hearing was conducted are without foundation. The transcript of the oral hearing reveals that there were occasions where it was necessary to accommodate the fact of the hearing being conducted through a video-link and with an interpreter, but otherwise reveals a fluent and coherent exchange between the Tribunal and the applicant.
(v) The complaint relating to the Tribunal’s finding that the interpreting was accurate cannot amount to a jurisdictional error. It was a question of fact for the Tribunal to determine which evidence to accept – in this case, to choose between the content of the certification from the translator (at CB 32) or the conflicting evidence from the applicant himself; it preferred the certification from the translator. This was open and it is not affected by any jurisdictional error.
16. In the circumstances, the applicant has not identified any basis on which this Court could interfere with the decision of the Tribunal by reason of interpretation or translation issues.
(footnotes omitted)
In a recent decision, Edelman J in BZAID v Minister for Immigration and Border Protection [2016] FCA 508 (“BZAID”) stated:
52. The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:
(1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;
(8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.
53. The last point emphasises the focus on process. As Allsop CJ said in SZRMQ (supra) at p. 215 [9]:
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
I turn first to consider what inference or conclusion the Court should draw from the fact that an interpreter is not an accredited interpreter.
In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J said this about the standard by which an interpreter should be judged to be competent at [31]:
…In assessing whether an interpreter is likely to be competent, courts and tribunals ordinarily have regard to various factors, including the interpreter's qualifications, accreditation or experience. It remains possible, however, that an interpreter, who satisfies a court or tribunal that, by reason of qualifications and experience, he or she would be likely to provide a competent interpretation, may nonetheless provide an incompetent one. Conversely, though lacking in qualifications and experience indicative of a capacity to interpret competently, an interpreter may turn out to provide a competent interpretation. The fact remains, however, that a challenge to the quality of an interpretation may fail when evidence that the interpreter was appropriately qualified is to be weighed in the balance.
I agree with the Minister that, in considering whether the Applicant was afforded an opportunity to give evidence and present arguments to the Tribunal, the question of the accreditation of the interpreter is not determinative. The question is whether, having regard to the matters referred to in BZAID and SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142, the interpretation provided was competent so as to afford the Applicant an opportunity to be heard.
Firstly, I will consider the question of interpretation during the Tribunal hearing. The Applicant has not provided sufficient evidence, in an admissible form, that the interpretation by the translator (who I accept was not accredited) was either not competent, or failed to convey the substance of what was said, so as to enable the Applicant to be provided with a genuine opportunity to give evidence and present arguments to the Tribunal.
The Applicant has filed a Supplementary Court Book (“SCB”), which I assume (in the absence of a sworn affidavit) was prepared by “Legal Transcripts Pty Ltd”, containing an English transcript of the Tribunal hearing. The Court was not taken to any part of this transcript by Counsel for the Applicant for the purpose of demonstrating faulty translation, for example, by incongruences between questions and answers or requests by the interpreter and/or Applicant for a question and/or answer to be repeated. There was no complaint made during the hearing about the quality of the interpretation.
I have read the transcript in the SCB and conclude on its face that it discloses a competent standard of translation. The fact that the interpreter was not accredited does not render what was otherwise a competent translation, incompetent.
Turning to the Applicant’s submission that the Tribunal denied him procedural fairness because it preferred the attestation of the interpreter to the Applicant’s evidence. I agree with the Minister’s submission on this issue. At [37] of the Tribunal’s decision record (CB 211-212), the Tribunal said that it accepted the interpreter’s declaration that he had accurately and completely interpreted the contents of the statutory declaration, from the English language to the Tamil language, to the Applicant. This is a finding which the Tribunal was entitled to make on the material before it. It’s preference for the attestation of the interpreter over the evidence of the Applicant was a function within its powers. The weight given by the Tribunal to evidence, both oral and written, before it, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. In Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162, the Full Court said at [95]:
“… Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court. …”
Turning to the question of interpretation during the Applicant’s interview with the delegate. The Applicant has not provided any admissible evidence to support his argument that the interpretation at the interview was deficient. It is evident that there is a CD recording of this interview, which took place in late 2013. It is impossible for this Court to determine the competency of the interpretation when the Applicant, despite being legally represented before the Tribunal and now before the Court (with a different firm of solicitors), has not filed an affidavit by a competent or accredited interpreter which sets out, in the English language, translations of the interpretation of the delegate’s questions and the Applicant’s evidence.
The conduct of the Tribunal hearing
In its Outline of Submissions, the Applicant referred to the conduct of the hearing in these terms (at [5] to [6]):
5. The hearing was held on 15th May 2013 by video link between the RRT registry in Sydney and RRT registry in Melbourne with the assistance of an interpreter in Tamil and English languages. (CB 207 & 241). The applicant was stationed in Melbourne and the member and the interpreter were stationed in Sydney.
6. The applicant was represented by a migration agent allocated by the first respondent who participated in the hearing by way of telephone link. (CB 241 & SCB at page 8).
As I understand, the submissions of Counsel for the Applicant are that the separate location of the Applicant, the Tribunal Member and the interpreter, contributed to the denial of procedural fairness to the Applicant. I assume the argument, although not expressed in this way, is that an Applicant must appear in person before the Tribunal when the Applicant is invited to appear under s.425 of the Migration Act 1958 (“the Act”).
I do not understand the reliance on s.420 of the Act in the Grounds of review, as this was not amplified in oral submissions. Section 420 of the Act does not form part of the statutory provisions setting out the mandatory requirements of the natural justice hearing rule: s.422B of the Act. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, the High Court found that the provisions of s.420 of the Act were not mandatory requirements regarding the conduct of a review. Gleeson CJ and McHugh J said at [49] to [50]:
The relationship, or lack of it, between ss 420 and 476 was correctly explained by Lindgren J at first instance in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs. The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals…”
(footnotes omitted)
Gaudron and Kirby JJ said at [77]:
“… s 420 serves to describe the general nature of review proceedings, there is no basis for concluding that the latter section operates to mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision. It follows that the Tribunal's decision is not reviewable, whether in this Court or in the Federal Court, on the ground that the Tribunal failed to observe procedures required by s 420 of the Act.
Gummow J, agreeing with the reasoning of Lindgren J in Sun, said at [108]:
…His Honour described s 420 as containing “general exhortatory provisions, the terms of which do not conform to the common understanding of a ‘procedure’”. This, to his Honour, signified “the steps, more or less precisely identified, which are or may be involved in particular proceedings.” In particular, the direction in s 420(1) that the Tribunal pursue the objective of “providing a mechanism of review that is fair, just, economical, informal and quick” did not amount to a requirement that the Tribunal observe a procedure in connection with the making of a particular decision for the purposes of par (a) of s 476(1).
Section 429 of the Act provides that the Tribunal hearing must be in private. However, relevantly to this Ground of review, s.429A of the Act provides that:
Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
This section is located within Div.4, Pt.7 of the Act – Reviewable decisions: Tribunal Powers, which contains the exhaustive statement of the natural justice provisions.
In Dhillon v Minister for Immigration and Border Protection [2014] FCCA 552, Judge Burchardt was required to determine a similar Ground of review in respect of an application for judicial review from the (then) Migration Review Tribunal. Having noted that s.366 of the Act expressly provided that the Tribunal may take evidence by video link, his Honour considered various authorities as follows (at [52] to [54]):
52. However, as the first respondent in my view correctly submits, s.366 of the Act expressly provides that the Tribunal may take evidence by video link (s.366(1)(b) closed circuit television or (c) any other means of communication). In Odhiambo v Minister for Immigration & Multicultural Affairs[2002] FCAFC 194; (2002) 122 FCR 29 Black CJ, Wilcox and Moore JJ at [97]-[99] said:
“In this case, the tribunal heard the appellants’ evidence by video conferencing. This court regularly uses video to conduct hearings to great practical effect. It is a valuable tool for a court or tribunal in conducting hearings where one, some or all of the parties are located at various points over a large area. However, video can have its limitations: see the discussion by Spender J in Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526; BC200202276. The particular position applicants for protection visas are in has been the subject of judicial comment. In Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 557, the Full Court said:
We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to ensure that they are sensitive to these special considerations.
[98] The Full Court also quoted with approval the following passage from Professor J C Hathaway in The Law of Refugee Status, Butterworths, Toronto, 1991:
First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state.
[99] It is of course for the tribunal to decide whether it conducts a video hearing in a particular matter. It is empowered to use it: see s 429A of the Migration Act. But, in doing so, it is as well to be mindful of the limitations of using videos for hearings, particularly where language and demeanour may be relevant if not significant in assessing the veracity of what the applicant for the protection visa is saying in circumstances where the person giving the account is starting from a position of comparative disadvantage of the type just discussed.”
53. As Reeves J observed in SZJTK v Minister for Immigration and Citizenship[2008] FCA 1712 at [24]- [25]:
“[24] Indeed, s 429A of the Act expressly allows for appearances before the Tribunal to be conducted using such technology. It provides:
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
[25] As the Federal Magistrate observed, this is an enabling provision. It clearly gives the tribunal a discretion to allow an applicant’s appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility).”
54. In the face of the fact that the Tribunal clearly had a discretion given to it by the legislation to proceed by way of video link in my view the Tribunal was clearly entitled to do so. Minds would differ as to whether in the particular circumstances of the applicant this was appropriate, but it seems to me that it cannot have been jurisdictional error for the Tribunal to adopt a form of communication that the Statute expressly empowered.
I agree with the conclusion of Judge Burchardt.
In SZJTKv Minister for Immigration and Citizenship[2008] FCA 1712, Justice Reeves identified matters which were relevant to the Tribunal’s discretion as follows (at [26]):
In exercising that discretion, the Tribunal would generally need to consider whether an appearance using such technology gave the applicant concerned a fair opportunity to give his or her evidence and to present arguments to it. The Tribunal may also need to consider other factors, such as whether its questioning of the applicant concerned is likely to be conducted fairly and effectively using such technology; whether it would be able to properly make any necessary assessment of the applicant’s credibility; whether it may need to put a large quantity of documents to the applicant; and what delays and costs may be caused if the appearance were not to be conducted in that way. These, and other factors, have been considered in relation to the use of video conference facilities in courts and tribunals, in a number of cases in this, and other courts, over the past two decades. The most recent decision on this issue, and one that conveniently reviews many of the earlier authorities, is ACCC v World Netsafe[2002] FCA 526 at [4] to [8] per Spender J.
I note that there is no evidence that either the Applicant or his representative expressed any opposition to the Tribunal conducting its proceedings in the way it did.
As I have already noted, the transcript contained in the SCB does not disclose any confusion or misapprehension such that it could be said the Applicant was deprived of a reasonable opportunity to present his case and to be heard.
For the reasons set out above, I find that Grounds one and two do not give rise to jurisdictional error.
Ground three
The basis for Ground three, as explained by Counsel for the Applicant, was that the considerable reference to the delegate’s decision by the Tribunal in its decision record, gave the impression that the Tribunal effectively “rubber stamped” the delegate’s decision, and did not conduct its own review. The Court was not taken to any parts of the decision record in support of this argument.
A finding made by a Tribunal, made with no other basis than the fact that the delegate had made the same finding, is inconsistent with its obligation to “review” a decision. The Tribunal must consider “for itself” the material before it and make its own findings based on that material: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547 at [32]; MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133 at [58].
I accept that the Tribunal, in its decision record, referred to the delegate’s decision on many occasions. However, it did this in the context of:
a)putting to the Applicant aspects of the delegate’s record of the evidence before it; or
b)evaluating the delegate’s findings.
I am satisfied that the Tribunal did not simply copy the delegate’s findings, but considered for itself the material before it to make its own findings.
Accordingly, no jurisdictional error arises in relation to Ground three.
Grounds four and five
Section 420 of the Act provides that:
The Tribunal, in reviewing a Part 7‑reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
The Applicant did not address these Grounds in his written Outline of Submissions. It appears from Counsel for the Applicant’s oral submissions, that the basis of this Ground was the failure of the Tribunal to have the documents, provided by the Applicant, which were written in Tamil, translated into English.
There is no overriding obligation on the Tribunal to inquire: Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275. It is for the Applicant to make his case, not for the Tribunal: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. The failure to have the documents translated into English is a failure on the part of the Applicant or his (then) representative.
On the other hand, Ground four seems to be about the reliance by the Tribunal on country information, in relation to the Applicant’s case. This allegation must be considered in context. The Tribunal stated the following at [148] to [150] of its decision record (CB 226):
148 At the hearing I noted the numbers of Sri Lankan failed asylum seekers who had returned safely to Sri Lanka and I asked why the applicant would not also be safe when he returned. The applicant said that he had a news clipping that indicated returnees from Australia were tortured. I asked where he had read this. He said that it was on the lankasri website in Tamil. It was dated 29 March 2014. He said that he would get a copy of the article to his representative to pass to me.
149 After the hearing I located an English translation and download it. It read in full: “CID officials questioned Lankan deported from Australia, Saturday 29 March 2014, CID officials have questioned Sri Lankan recently deported from Australia. Resident of Kaluwanjikudy visited Australia by boat last year. At present he has been deported to Sri Lanka by airplane and residing at his residence in Kaluwanjikudy. CID officials suddenly visited his house on Thursday and ordered him to Colombo for further enquiries. During the time of investigations he was brutally attacked and returned home.”
150 I have found no other reports of this incident and without elaboration about the individual circumstances of this case, including whether the person involved was of interest because he had been involved in people smuggling, criminal activity or an outstanding arrest warrant, I do not accept that this incident indicates that there is a real risk that the applicant will suffer significant harm on return because he left Sri Lanka illegally and then returned as a failed asylum seeker.
(footnotes omitted)
Read in context, paragraph [150] is an observation based on country information which the Applicant drew to the Tribunal’s attention. It did not insinuate that persons deported from Australia were persecuted due to people smuggling, criminal activity or an outstanding warrant. The Tribunal simply noted there was no information about whether that particular person was involved in these activities.
In his written submissions, the Applicant said:
18. Any credible relevant and significant information for the determination of the application must be brought to the notice of the applicant. There was a country information about a Sri Lankan deportee from Australia was brutally attacked by CID and an insinuation by the tribunal that he may have been involved in other illegal activities to warrant such punishment (CB 226). This information should have been put to the applicant pursuant s 424 A of the Act.
The First Respondent, in its written submissions, characterised Grounds four and five as an allegation that the Tribunal erred in applying certain country information in the determination of the review, and in not putting that country information to the Applicant under s.424A of the Act. I agree with this characterisation.
Section 424A of the Act provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
I agree with the Minister’s written submissions (extracted below) that, in the current case, this is information falling within the exception under sub-s.424A(3)(a) of the Act. I also agree that this information was information that the Applicant drew to the Tribunal’s attention. Although the Applicant did not provide a copy of the information, he was on notice about the contents of the information.
The Minister’s submissions are as follows:
18. The complaint relates to country information mentioned by the Tribunal in paragraphs 148-150 of its Reasons (CB 226), concerning a news report mentioned by the applicant (though, apparently, not furnished by him), which indicated that returnees had been tortured.
19. The Tribunal obtained an English language translation of this news clipping, analysed it in the context of broader country information, and found that it did not assist the applicant. This was because, although it mentioned adverse treatment of a Tamil returnee, the Tribunal was not prepared to place weight on that evidence without knowing whether the person mentioned in the article had any adverse profile of the kind mentioned in the more general country information on which the Tribunal relied.
20. The Tribunal was not required by s 424A of the Act to put this information to the applicant; the information was not specifically about the applicant and came within the exception under s 424A(3)(a). In any event, no practical injustice was experienced by the applicant because it was he who draw the Tribunal’s attention to this country information (even though he did not furnish the article itself).
(footnotes omitted)
Accordingly, no jurisdictional error arises in relation to Grounds four and five.
Ground six
In his written submissions, the Applicant said:
15. The Tribunal drew adverse inferences from inconsistencies between the applicant’s alleged written claim and his claim before the delegate and the Tribunal hearing. Such inconsistencies may constitute “information’ for the purpose of section 424A of the Act.
16. The Tribunal is obliged to put the alleged inconsistencies in his claim about the treatment the applicant was subjected at the hands of the CID.
17. There is a mandatory requirement on the tribunal to do so under section 424A of the Migration Act which the tribunal has not discharged and by not doing so erred jurisdictionally. (SAAP-v-Minister {2005} HCA 24.
(i) the inconsistencies did constitute “information” for the purpose of s.424 of the Act. (SZEEU v- MIMIA {2006} FCAFC 2 ( 24 February 2006
(ii) such information did not fall within the exception referred to in section 424(3).
The Minister submits that:
The matters complained about relate to the Tribunal’s reasoning process, and not to any information that was before the Tribunal but not put to the applicant; there is no “information” which engaged the obligations of the Tribunal under section 424A, identified by the applicant.
In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 the majority (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said at [18]:
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”.
“does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
(footnotes omitted)
The Tribunal did not fail to comply with its statutory obligation under s.424A of the Act to give written notice about alleged inconsistencies. The matters put to the Applicant at SCB T.26-28 were merely the Tribunal’s concerns or disbelief regarding the inconsistencies in the Applicant’s evidence.
No jurisdictional error arises from this Ground.
Ground seven
This Ground was not addressed in the Applicant’s submissions. It rated a bare reference in Counsel’s oral submissions, which I found almost impossible to decipher. Counsel for the Applicant said, referring to this Ground, that the Tribunal did in fact look at the Applicant’s claim of being a young failed Tamil asylum seeker, and found that he was never at risk of significant harm. Counsel then proceeded to state that the main thrust of the Applicant’s submissions was the quality of interpreting.
At [127] of the Tribunal’s decision record, the Tribunal said (CB 223-224):
In addition to the above, I have considered all of these claims cumulatively dealing with applicant’s race as a Tamil, his religion as a Christian, his actual or imputed political opinion and his membership of the particular social group ‘young Tamils’ or any similar formulation of ‘returned failed Tamil asylum seeker’ or any similar formulation cumulatively. Having done so, I am not satisfied that there is a real chance that the applicant will suffer serious harm in Sri Lanka now in the reasonably foreseeable future for a Convention reason, and that his fear of persecution is not well-founded.
I agree with the Minister that, on the face of the record, the Tribunal expressly dealt with the cumulative claim. In the absence of any cogent argument from the Applicant as to why it said, notwithstanding this express statement, the Tribunal did not assess the Applicant’s claims cumulatively, I find that this base assertion is not made out.
I find that no jurisdictional error arises from this Ground.
Ground eight
In his written submissions, the Applicant asserts that the Tribunal did not assess the integer claim of the Applicant (Applicant’s Outline of Submissions at [19]). The Applicant has not identified the integer claim the Tribunal is said not to have addressed. No reference was made to this Ground by Counsel during the hearing.
In these circumstances, I find that no jurisdictional error arises from this Ground.
Conclusion
For the reasons set out in this judgment, I will dismiss the application for judicial review, with costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 2 August 2016
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