MZARC v Minister for Immigration
[2016] FCCA 2452
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARC v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2452 |
| Catchwords: MIGRATION – Application for a protection visa – whether the exercise by the Tribunal of its discretion to refuse to adjourn the Tribunal hearing was unreasonable – whether the Tribunal decision not to provide the Applicant with an interpreter at the Tribunal hearing denied the Applicant a meaningful opportunity to give evidence and present arguments to the Tribunal – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(a) and (aa), 427(7) |
| Cases cited: Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Pandey [2014] FCA 640 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 |
| Applicant: | MZARC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 130 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 19 July 2016 |
| Date of Last Submission: | 19 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondents: | Mr Day |
| 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 filed on 3 February 2015 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 130 of 2015
| MZARC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This is an application for judicial review of a decision of the then Refugee Review Tribunal (“Tribunal”) dated 10 December 2014, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).
The issues for determination arising from the Applicant’s grounds of judicial review and his oral submissions are as follows:
a) Did the Tribunal unreasonably refuse to allow the Applicant an adjournment of the Tribunal hearing?
b) Did the failure of the Tribunal to provide an interpreter for the Applicant at the hearing deny the Applicant a meaningful opportunity to give evidence and present arguments to the Tribunal?
The Applicant is a Malaysian citizen who applied for the visa on 2 December 2013.
The Applicant did not attach a statutory declaration regarding his claims to fear persecution. The details of his claims emerge from the interview with the delegate held on 30 April 2014 (CB 48). The Applicant was assisted at the interview with an interpreter in the Tamil and English languages.
The Applicant’s claims to fear persecution are founded on his association with his brother (“M”), who he claimed was a member of the “04 Gang” which is implicated in drug dealing, money laundering and other criminal activities.
The Applicant claims that for a period of time, he and his brother, M, lived in Johor Bahru. At the time, M worked at Samsung in marketing. He claims M was the leader of the local 04 branch, and in 2008 he was killed in a car accident which was believed to have been orchestrated by his enemies. He was informed about his brother’s involvement in the 04 gang by a friend of his brother’s (“P”), after his brother passed away. A week after his brother died, he joined Samsung as a sales representative, but resigned when a stranger went to his workplace looking for him. He then worked as a bartender in a pub for about three months and kept moving around. One day while working at the pub, he was asked by a stranger whether he was M’s brother. He said he was, and asked the stranger if he was M’s friend. The reaction of the stranger concerned him. He immediately called P, who came to his workplace. As he left the workplace to meet P, he saw two cars approaching slowly, but P took him away. He believes that the people inside the car had intended to kill him. P told him these people were looking for him and he should go away.
The Applicant claims he later heard that another friend of his brother’s was killed in execution style by gangsters, with the assistance from the police. He claims that sometime later he was attacked and beaten in a park. The attackers fled when they saw the police. He was taken to hospital by the police, but they refused to allow him to lodge a police report as they recognised him as the brother of M. He moved to a different suburb of Johor Bahru, and found a job in a restaurant. He planned to go to Singapore to work, but was advised by P that Singapore was not safe for him either, and was told to go somewhere else. With the assistance of friends, he left for Australia in 2011.
The Applicant fears that if he were to return to Malaysia, he would be killed by his brother’s enemies, and he will not be protected by the authorities.
The delegate refused to grant the visa on 22 May 2014. The delegate found the Applicant's claims inconsistent and implausible due to discrepancies. The delegate also did not accept that the Applicant would not think that relocation within Malaysia was possible, if he genuinely feared for his life (CB 49-50).
Tribunal proceedings
The Applicant applied to the Tribunal for a review of the decision on 18 June 2014. In his application, the Applicant stated that he did not need an interpreter when communicating with the Tribunal (CB 52), nor did he want to appoint a representative to act on his behalf or be his authorised recipient (CB 54). The Tribunal wrote to the Applicant on 15 September 2014 and invited the Applicant to a hearing on 27 November 2014 (CB 71-72).
On 21 November 2014, the Applicant emailed and telephoned the Tribunal requesting an adjournment of the hearing date (CB 74-75). The reason he gave was (CB 75):
I need to get my adjournments copy from the department of immigration for my own reference and to produce to my migration lawyer which I just recently managed to get through them.
On 24 November 2014, the Tribunal sent the Applicant an email refusing to adjourn the hearing date (CB 76). In that email, after referring to the Applicant’s reasons for the requested adjournment, the following reason was given for refusing the adjournment:
The tribunal has not received any documents to indicate that you have appointed a migration agent to represent you. The tribunal has also not received any request from you or from a migration agent appointed by you for a copy of your files.
On 24 November 2014, after receiving a copy of the email, the Applicant telephoned the Tribunal. The case note records, in part, as follows (CB 77):
The RA said that he is waiting to hear from the migration agents as to whether they will take his case on…
He said that he had previously seen a ‘fake’ migration agent who didn’t do the right thing….
On the day of the hearing, the Applicant contacted the Tribunal to let them know he was running late. The Applicant also asked if an interpreter was booked for the hearing. The Tribunal informed the Applicant that an interpreter had not been booked as “this was not requested at time of lodgement, in the hearing response form or in any additional correspondence sent to the Tribunal to date.” He was advised that he could raise any issues about understanding the Tribunal member at the hearing (CB 78).
Tribunal Decision
The Applicant raised the issue of an interpreter again at the hearing. This was dealt with at [23] of the decision record (CB 92):
The tribunal had a discussion with the applicant about his concerns regarding having an interpreter. The tribunal noted that the applicant had not requested an interpreter in his application for review, had not submitted a hearing invitation response with an interpreter request, nor had he requested an interpreter in any of his email or telephone communications with the tribunal. The tribunal also noted that although the applicant had an interpreter as his departmental interview, he mostly spoke in English and even repeated in English what he had said through the interpreter. Given that there appeared to be no problems with communication and that the applicant had travelled several hours to attend the hearing which was commencing an hour later than scheduled due his being late, the tribunal proposed to commence the hearing without an interpreter and that, if one was required, an telephone interpreter would be arranged.
During the hearing, the Applicant also informed the Tribunal that he was not happy with the interpreter at the interview with the delegate, and that is why he attempted to clarify with the officer in English. He said he was supposed to get a Malay interpreter, which is his native language, but had a Sri Lankan Tamil one instead (CB 92-93 at [27]). The Tribunal member said that, as there appeared to be no difficulties in communication, it would proceed to commence the hearing in English and an interpreter could be organised if the Applicant faced any difficulties (CB 93 at [28]).
It is apparent from the decision record that, during the course of the hearing, the Applicant gave very detailed evidence in relation to his claims to fear persecution because of his association with his brother, M, and because he will be suspected to have been a member of the 04 Gang (CB 93 to 99). It is evident that during the course of the hearing, the Tribunal member clarified certain aspects of the Applicant’s evidence and raised concerns about aspects of the Applicant’s evidence (see CB 96-100 at [59]-[61], [69], [71], [79], [84] and [89]-[95]).
Under the heading, “Findings”, the Tribunal once again addressed the issue of the Applicant’s ability to participate in the hearing without the assistance of an interpreter. The Tribunal first repeated what it had said earlier regarding the Applicant’s late request for an interpreter (see [15] and [16] above). The Tribunal then stated (CB 101 at [100]):
… At no point during the hearing did the applicant claim or the tribunal observe that the applicant had any difficulties in understanding the tribunal’s questions, comments and concerns or any difficulties in expressing himself. Accordingly, the tribunal finds that the applicant was able to meaningfully participate in the hearing.
The Tribunal also dealt with the Applicant’s request for an adjournment as follows (CB 101 at [101]-[102]):
101. The applicant claimed that after his refusal by the department he employed an individual who purposed (sic) to be a migration agent but who the applicant later discovered was not. He claimed that this individual completed his application for review and that he thought an interpreter would be organised. He also claims that he was not told by this individual what documents or evidence he needed to supply which is why he contacted the tribunal and asked what he needed to provide. As discussed with the applicant, there is no indication in the application review or in any other correspondence that the applicant had a migration agent or anyone else assisting him. As also discussed with the applicant hearing, there is no record of him speaking to an officer about what evidence he needed to provide for his review. The tribunal prefers its own records to the applicant’s assertions particularly in light of the tribunal’s significant concerns regarding his credibility.
102. Apart from not knowing what evidence was required, the applicant also provided other reasons why he was unable to obtain evidence in support of his claims at the hearing ranging from not having enough time to get it or that it was difficult to do so because he could not let his friends know about his situation. Given that the friends the applicant referred to in his evidence were also gang members, it is unclear which friends the applicant feels he could not confide in. Furthermore, as noted earlier, his application for review was lodged in June 2014 and the applicant was invited to the hearing on 15 September 2000. The applicant was aware of the issues in his case as they were set out in the decision record of 22 May 2014. The tribunal considers that the applicant had ample time to arrange for any evidence he had to be obtained.
The Tribunal noted that at the hearing, the Applicant provided a copy of a newspaper article about a gang member’s death in Johor Bahru, who the Applicant does not claim to have known. The article did not state whether the deceased gang member was a member of Gang 04. The Tribunal stated that whilst it accepts that gang violence does occur in Malaysia, it had given the article little weight in assessment of the credibility of the Applicant’s particular claims (CB 101-102 at [103]).
The Tribunal found, in relation to the Applicant’s request for an adjournment, (CB 102 at [104]) that:
Considering all the evidence before it, the tribunal does not accept the applicant’s claim that he was assisted by an individual purporting to be a migration agent, that he was under the impression that an interpreter would be arranged for him, that he was not aware of what evidence was required or could not obtain it or that he contacted the tribunal to inquire about what documents or evidence he needed to provide.
It is apparent that the Tribunal’s ultimate finding, that the Applicant did not satisfy ss.36(2)(a) or (aa) of the Migration Act 1958 (“the Act”), arose from what it found to be “several significant inconsistencies, discrepancies and omissions in the applicant’s evidence to the tribunal, both internally and to the department, as set out in the decision record submitted with his application for review” (CB 102 at [105]).
The “significant inconsistencies, discrepancies and omissions” identified by the Tribunal, and its findings regarding the particular claims of the Applicant, are accurately set out in the Minister’s written submission. The relevant extracts are set out below:
11. The RRT did not accept the applicant's explanation for the discrepancy in his evidence regarding why his brother was killed (at [106]). The RRT did not accept the applicant's claims that he was not able to give evidence about his claimed kidnapping because the delegate was upset with him (at [107]).
12. The RRT did not accept that the discrepancy in the applicant's evidence about his employment period at Samsung was due to carelessness (at [109]). The RRT found the applicant failed to provide any reason why he failed to mention at the hearing before the delegate that people came searching for him at Samsung a second time (at [111]).
13. The RRT found the applicant's evidence that rival gang members would want to target him at or near a pub owned by a Gang 04 member to be implausible (at [115]).
14. The RRT stated that the applicant provided no explanation for why he was unable to recall the sequence of allegedly significant events, such as the death of Gang 04's leader (at [116]). The RRT found that had the beating in a park happened as claimed, the applicant would have mentioned it at the hearing before the RRT (at [117]).
15. The RRT was concerned by the significant delay of over two years from when the applicant arrived to when he lodged his protection claim (at [120]). The RRT was willing to accept the applicant's brother, [M] died in 2008, however it did not accept (at [121]) that:
15.1 [M] was ever in a gang, or that the applicant was ever told his brother was in a gang;
15.2 The applicant was ever associated with any gang members who were his brother's friends;
15.3 His brother's death occurred in the circumstances claimed; or
15.4 The applicant was ever kidnapped or beaten by [M]'s enemies, or that [M] subsequently attacked those enemies or that those enemies had anything to do with [M]'s death.
16. The RRT was willing to accept that the applicant worked at Samsung at some stage however, it did not accept that:
16.1 The workplace was ever visited by anyone associated with a gang who was seeking information about the applicant;
16.2 The applicant ever worked in a pub owned by a Gang 04 member;
16.3 The applicant was asked about his brother by a stranger at the pub;
16.4 Any cars full of suspicious individuals were outside the pub looking for him;
16.5 [M]'s friend, [P], warned the applicant that people were after him;
16.6 The applicant left any of his jobs due to threats against him; or
16.7 The applicant moved from one area of Johor to another for the reasons claimed.
17. The RRT did not accept on account of its significant concerns that the applicant was ever perceived to be a Gang 04 member or that he came to Australia in order to be safe (at [125]). The RRT did not accept that the applicant faced a real chance of serious harm due to his actual or perceived connections to Gang 04 or his brother or for any Convention ground if he returns to Malaysia (at [127]).
18. The RRT was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia there was a real risk that the applicant would face significant harm (at [127]).
Judicial review
The Applicant’s written grounds for judicial review are as follows:
1. I am not satisfied with the decision from the tribunal because I believe they didn't analyse my claim seriously.
2. I was given only six month (sic) to gather all the information that I could provide to convince them but unfortunately the timeline wasn't enough for me. I was not prepared mentaly (sic).
3. I need a reconsideration because it will be a great disaster if I had to send back to my country.
The Applicant was self-represented at the judicial review hearing and was assisted by an interpreter in the Tamil Sri Lankan and English languages. As the Applicant was self-represented, I explained to him the nature of judicial review proceedings, and the function of the Court in judicial review proceedings. I explained that the Court’s function is not to decide whether he should be granted his visa but, having regard to the Tribunal decision and the procedure the Tribunal adopted, to decide whether there was a “serious legal mistake”. The Applicant confirmed at the commencement of the hearing that he could understand the interpreter. However, shortly after I commenced explaining the nature of the judicial review proceedings, the Applicant raised through the interpreter his lack of understanding of certain words. I informed him that if there were words which were not or could not be translated adequately he should inform the interpreter about this so that the interpreter could let me know. I must say that the issue with understanding particular words seemed to relate to legal terminology used while explaining to the Applicant the nature of judicial review proceedings. I am satisfied that any difficulty with interpretation was overcome by the approach I took in simply asking the Applicant to explain what he meant by his grounds of review and to tell the court why he believes the Tribunal decision was wrong. I note that at no time during the proceedings did the Applicant raise with me any difficulties in the translation by the interpreter.
In his oral submissions, the Applicant raised two complaints. The first was that he was not given sufficient time to provide the evidence in support of his claim. I asked him whether he meant that the Tribunal was unreasonable in refusing his request for an adjournment. I am satisfied that he agreed with this characterisation of the complaint. The second issue was his dissatisfaction with the absence of an interpreter at the Tribunal hearing. He also explained that he was under a lot of stress at the time and was uncomfortable and suffering from headaches at the Tribunal hearing.
With respect to the question of an adjournment of the Tribunal hearing to enable him to obtain evidence in support of his claim, the Applicant said:
a) when he was invited by the Tribunal to attend the hearing, he was asked to submit evidence. He was unable to provide the evidence as he did not know how to provide it. Without the evidence, it was apparent submissions were not enough to convince the Tribunal about his claims;
b) he had only been given six months, he did not have a job and was struggling and moving from one place to another. At the time of the hearing, he had a full-time job from 5.00am in the morning to 6.00pm at night and it was difficult for him to have time to get the evidence;
c) he visited the Asylum Seeker Resource Centre. They looked through his documents and told him that it was too close to the hearing and to ask for an extension of time; and
d) the evidence he would have provided included evidence about his brother’s death and gang related activities in Malaysia.
With respect to the absence of an interpreter at the Tribunal hearing, the Applicant conceded he spoke English on that day, but that he did not feel satisfied about what he said and felt as if he did not answer questions properly.
I agree with the Minister that the Applicant’s first and third grounds of judicial review merely express disagreement with the Tribunal’s decision and seek inadmissible merits review. It is apparent from the Tribunal’s record that the Tribunal not only identified all of the Applicant’s claims and evidence, but considered them in detail. I find, therefore, that neither of these grounds give rise to jurisdictional error.
Was the Tribunal’s refusal to adjourn the hearing unreasonable?
In Minister for Immigration and Border Protection v Pandey [2014] FCA 640, per Wigney J, referring to decisions by the High Court in Minister for Immigration v Li (2013) 249 CLR 332 (“Li”) and in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (“Singh”), summarised the relevant principles in relation to the requirement that the discretion reposed in the Tribunal to adjourn hearings be exercised reasonably as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
In considering this judicial ground of review, it must be recalled that the reasons given by the Applicant to the Tribunal, in requesting an adjournment, was his claim that he had requested a copy of his departmental file which he wished to provide to his Migration Agent. The Applicant does not now rely on this reason in this judicial review proceeding. I will shortly deal with the reasons he now relies on. I make it clear, however, that the Tribunal’s reason given for refusing the adjournment on the basis put by the Applicant to the Tribunal immediately preceding the Tribunal hearing was, in my opinion, reasonable. The Tribunal decided to rely on the records before it, which disclosed that the Applicant did not have or had not appointed a Migration Agent or authorised recipient. Nor had he made a request for the departmental file. It was open to the Tribunal to prefer the written records before it to the Applicant’s evidence. On this basis, I am satisfied that the Tribunal exercised its discretion reasonably.
I will now consider the Applicant’s written grounds of judicial review and oral submissions, that he required further time to provide the evidence for the purpose of supporting his claims to fear persecution.
I am prepared to accept that, in circumstances where the Applicant was not represented or assisted when he applied for the visa on 2 December 2013, he may well not have been aware that he needed to provide evidence in support of his claims. However, there can be no doubt that, at the time the delegate made her decision on 22 May 2014, the Applicant would have be aware of the concerns regarding his evidence. The delegate, in her decision record, made it perfectly clear that she found “notable inconsistencies and implausibilities in his evidence which raise serious concerns about the veracity of his claims” (CB 65). I am satisfied that, at this point, the Applicant was on notice of the issues he would need to address, as well as evidence he would be required to provide to the Tribunal, in support of his claims to fear persecution. There was a six-month period between the decision of the delegate and the Tribunal hearing. I do not accept the Applicant’s assertions (unsupported by any probative evidence) that he was so incapacitated during this period that he could not have taken steps to obtain the evidence he says he wanted to put before the Tribunal. The evidence he identified was evidence regarding his brother’s death and the situation of gangs in Malaysia.
In my opinion, the Tribunal’s conclusion that the Applicant “had ample time to arrange for any evidence he had to be obtained”, was reasonable. There was no suggestion before the Tribunal that the Applicant had obtained (other than a general newspaper article), or was about to obtain, any evidence in relation to his brother’s death or gangs in Malaysia generally. The Applicant did not give any indication of the steps he had taken to obtain such information. His explanation was simply that he had been unable to obtain the information. In these circumstances, the Tribunal’s exercise of its discretion to refuse to grant an adjournment of the Tribunal hearing was clearly not arbitrary or capricious.
Furthermore, it is not clear how the evidence the Applicant said he wished to obtain would have overcome the Tribunal’s serious concerns regarding the inconsistencies in the Applicant’s evidence.
In a decision referred to by the Minister, Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59, Gleeson CJ said, in respect of an argument that the Tribunal failed to assess or give any weight to the Applicant’s evidence in light of the corroborating evidence, at [12]:
It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
Accordingly, I find no jurisdictional error on this ground.
The Tribunal’s decision not to provide an interpreter at the hearing
Section 427(7) of the Act provides that if a person “is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter”. This provision was considered in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376 where the Court made the following observations:
26. There is no warrant for reading s 427(7) as imposing an obligation on the Tribunal. The Act regularly uses the word “may” and “must” in contexts where it is clear that the use of the former indicates a discretion whereas the use of the latter leaves no room for discretion. Section 427(7) must be considered in the context of s 425. Section 425(1) provides that the Tribunal “must invite” an appellant to appear before the Tribunal “to give evidence and present arguments” relating to the issues arising before the Tribunal. Section 427(7) simply empowers the Tribunal to take steps to ensure that there can be real compliance with s 425(1).
27. There is a clear relationship between ss 425(1) and 427(7). If an applicant for refugee status is unable to give evidence and present arguments in English, the effect of s 425(1) is to necessitate the exercise of the power under s 427(7) to direct that communication proceed through an interpreter – see Perera at paragraph [20]. Thus, the notion of proficiency in English that is referred to in s 427(7) must be understood by reference to the object for which s 427(7) is included in the Act. It is there to ensure that at a hearing the applicant will have a real opportunity to give evidence and present arguments.
28. That is to say, the proficiency in English contemplated by s 427(7) is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance of his or her case and to respond to issues raised. It does not require any greater expertise in English. If the applicant can comprehend and articulate English sufficiently well to enable him or her, in a real sense, to give evidence and present arguments in English to the Tribunal, the requirements of s 425(1) will have been satisfied. On the other hand, if an applicant does not have such proficiency, s 425(1) may well not be satisfied in the absence of a direction under s 427(1). Either way, there is no independent obligation imposed on the Tribunal by s 427(1).
I am satisfied, having regard to the material in the Court Book, that the Applicant did not request the assistance of an interpreter until his telephone communication with a Tribunal officer on the day of the hearing. On the other hand, the Applicant was assisted by an interpreter in the Tamil language during his interview with the delegate. The recording of this interview is not before the Court. However, I accept, in the absence of any evidence to the contrary, the Tribunal’s observation in its decision record “that the applicant spoke in English for the majority of his departmental interview” (CB 101 at [100]).
It is apparent that the Tribunal raised the question of interpretation with the Applicant at the commencement of the hearing and informed him that, whilst it proposed to commence the hearing without an interpreter, if he had difficulties with the interpretation, a telephone interpreter would be arranged (CB 92 at [23]). The Tribunal found that the Applicant had been able to meaningfully participate in the hearing because (CB 101 at [100]):
… At no point during the hearing did the applicant claim or the tribunal observe that the applicant had any difficulties in understanding the tribunal’s questions, comments and concerns or any difficulties in expressing himself. Accordingly, the tribunal finds that the applicant was able to meaningfully participate in the hearing.
An affidavit affirmed by Chloe Ann Hillary on 14 June 2016 was filed on behalf of the Minister. The affidavit attaches a transcript by Auscript Australasia Pty Limited, of the audio recording of the Tribunal hearing dated 27 November 2014. I have read the transcript and I am satisfied that the Applicant was sufficiently able to present his case. The transcript does not reveal any misunderstanding by the interpreter or requests by the Applicant to have questions repeated. There is no evidence of a disconnect between the questions asked by the Tribunal member, and the answers given by the Applicant. The Applicant’s answers are responsive both to the questions asked, and to concerns identified by the Tribunal member with respect to the Applicant’s evidence. The answers given by the Applicant are often quite detailed and convey, in a logical sequence, the evidence of the Applicant.
I should also note, as this was a matter raised by the Applicant, that the Applicant did not inform the Tribunal that he was suffering from headaches or any other medical condition.
Accordingly, I am satisfied that the Applicant was able to sufficiently communicate the substance of his case and thereby give evidence and present arguments to the Tribunal.
I find, therefore, that no jurisdictional error arises on this ground.
Conclusion
For the reasons given in this judgement, I will order that the application for judicial review be dismissed and that the Applicant pay the First Respondent’s costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 22 September 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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