MZART v Minister for Immigration
[2017] FCCA 63
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZART v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 63 |
| Catchwords: MIGRATION – Whether the Tribunal decision was affected by an error of law or the Applicant was denied procedural fairness – final hearing adjourned to enable the Applicant to file further material to support his submission that the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) because of the standard of translation – Applicant failed to file any material – held that the Tribunal decision was not affected by jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424A , 424AA, 425, div.4, pt.7 |
| Cases cited: BZAID v Minister for Immigration and Border Protection [2016] FCA 508 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | MZART |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 260 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 18 July 2016 |
| Date of Last Submission: | 18 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondents: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 260 of 2015
| MZART |
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 (“the Tribunal”) dated 15 January 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (respectively “the delegate” and “the Minister”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a 27 year old citizen of Sri Lanka, a Tamil Hindu from Udappu in the Puttalam district. He arrived in Australia on 29 June 2012.
On 6 November 2012, the Applicant applied for the visa, with the assistance of a migration agent (CB 19-88).
On 4 March 2013, the delegate invited the Applicant to an interview (CB 93-99). On 19 March 2013, the Applicant attended an interview before the delegate and presented evidence and argument in support of his claims.
The delegate invited the Applicant to comment on apparent inconsistencies in the presentation of his claims at the interview, as compared with his earlier statements (CB 100-101). The Applicant gave written submissions in response (CB 115-118).
On 12 July 2013, the Applicant was notified that the delegate had refused his visa application (CB 119-152). The delegate refused the application by reason of his assessment of the credibility of the Applicant’s claims and consideration of relevant country information (CB 141-148).
On 18 July 2013, with the assistance of his migration agent, the Applicant applied to the Tribunal for merits review of the delegate’s decision (CB 154-183).
On 29 September 2014, the Tribunal invited the Applicant to attend a hearing and present evidence and argument in support of his application (CB 200-210).
On 26 November 2014, the Applicant’s migration agent filed written submissions on the Applicant’s behalf in support of his application (CB 216 to 273).
On 3 December 2014, the Applicant attended the hearing convened by the Tribunal. He appeared with the assistance of his migration agent and an interpreter in Tamil and English languages (CB 279 to 282).
The Applicant’s claims
The Applicant’s claims are, in summary:
a)he and his father were fishermen (CB 73 at [5] and [8]). He had experienced harassment and assaults from the Sri Lankan authorities and local villagers by reason of his Tamil ethnicity (CB 73-75 at [11]-[28]). He was suspected of involvement with the Liberation Tigers of Tamil Eelam (“LTTE”) by reason of his ethnicity and he was harassed for this reason. The authorities would often stop him and ask him for identification and whether he was a supporter of the LTTE. While undertaking commercial fishing, he had been harassed by the navy, sometimes to a point that interfered with his ability to work. Sinhalese fishermen were not subject to the same treatment;
b)the army would regularly send patrols to visit Tamil houses. The army visited the Applicant’s home four to five times a month, asked to see his identification and questioned him about his involvement with the LTTE (CB 74 at [19]);
c)his father had travelled to Kallarai, north of Udappu, to fish, in March 2012 (CB 73 at [8]). On 20 May 2012, his father contacted him by phone and said Sinhalese fisherman threatened him and told him to stop fishing (CB 74 at [21]). On 22 May 2012, a friend of the Applicant’s father telephoned the Applicant and told him that his father had been bashed by the army and the Criminal Investigation Department (“CID”). He was told that they took his father out onto the road and made him kneel (CB 74 at [21]-[22]);
d)the Applicant did not hear from his father. After a week, he attempted to report the matter to the local police. He was told to come back with an interpreter. He did so and was then told to report the incident to the army. The Applicant was frightened and did not report the matter further (CB 75 at [23] -[25]); and
e)approximately one week after attempting to report his father’s disappearance to the police, seven or eight people came to his family home. He believed they were “army people” and he fled. He remained with close relatives until he could secure passage to Australia (CB 75 at [26]-[27]). The authorities have continued to visit his home, looking for him (CB 75 at [28]).
In the written submission filed with the Tribunal, reference was made to a further claim that four or five years before his father’s disappearance, two of his father’s close friends were killed by the Sri Lankan army on suspicion of being involved with the LTTE (CB 218 at [6]). The submission otherwise stated that the Applicant and his family had experienced persecution in the past and submitted he would be attributed a pro‑LTTE or anti-government profile by reason of his race and status as a failed asylum seeker (CB 221-222 at [34]-[36]). The Applicant, as he had done in submissions made earlier to the delegate (CB 116 to 118), addressed matters going to the Applicant’s credit (CB 218 and CB 221). Country information in support of his claims was annexed to the written submissions (CB 230-273).
The Tribunal’s decision
The Tribunal made strong adverse credibility findings regarding the Applicant. The Tribunal found the Applicant’s account “vague and lacking in detail” and gave reasons for this assessment, including that the claims presented at the hearing were inconsistent with the written presentation of his claims in material ways. The Tribunal was also concerned that “most” of the Applicant’s evidence “was very vague yet he could remember the exact dates his father and his father’s friend telephoned him which might suggest a fabricated account” (CB 297 at [47]). The Tribunal found “much of [the Applicant’s] evidence” was “implausible” and gave reasons for this assessment (CB 298 at [48]).
The Tribunal identified matters it should have regard to in the assessment of credit; such as the “difficulties often faced by asylum seekers” and that “the process of seeking protection and the giving of evidence can be stressful.” It set out the legal framework for the assessment of credit (CB 298 at [49]). Taking those matters into account the Tribunal did not accept that the Applicant “is a credible witness” and found he had “fabricated” his claims of past persecution (CB 298 at [50]). The Tribunal comprehensively rejected the Applicant’s claims of past persecution. It did not accept that (CB 298-299 at [50]):
a)the Applicant’s father was threatened by Sinhalese fisherman, beaten by the army and/or the CID, made to kneel on the road and went missing;
b)the Applicant was contacted by his father’s associate who told him of this incident;
c)the Applicant was concerned that the authorities would attack him if he searched for his father, or attempted to report or reported the matter to the police about the army and/or the CID beating his father;
d)the army and the CID came to know of his complaint, came looking for him and threatened to kill him;
e)in May 2013 and August 2013, the army and the CID returned to the Applicant’s home looking for him and his father and threatened to kill his mother and his sister if they did not say where the Applicant was;
f)the Applicant’s family had a history of adverse interactions with the Sri Lankan state;
g)the Applicant would be tortured or possibly killed by the army or was of adverse interest before he left Sri Lanka; and
h)the army tortured his father and he is not well.
For these reasons, the Tribunal did not accept there was a real chance the Applicant would be seriously or significantly harmed by reason of these past experiences (CB 299 at [51]-[52]).
The Tribunal went on to consider whether, in light of the evidence before it, there was any future risk of harm to the Applicant:
a)as a Tamil, or Tamil fisherman in Udappu. It found, by reason of the Applicant’s profile, as found, and relevant country information, that there was not any future risk of harm (CB 299-301 at [53]-[63]);
b)by reason of his status as a failed asylum seeker or illegal departure from Sri Lanka (CB 301-305 at [66]-[84]). The Tribunal accepted the Applicant would be identifiable as a failed asylum seeker and noted there was conflicting country information as to whether failed asylum seekers were at risk of persecution (CB 301 at [67]-[68]). The Tribunal reviewed relevant country information (CB 302-303 at [69]-[73]) and found that the Applicant did not have a profile that would bring him to the adverse attention of the authorities upon his return to Sri Lanka (CB 303 at [74]). On the basis of relevant country information, the Tribunal found that the Applicant would most likely be questioned, but this questioning did not amount to “serious harm” or “significant harm”. The Tribunal also found there was no real chance the Applicant would be imputed with an adverse profile by reason of his status as a failed asylum seeker or face “serious harm” or “significant harm” for this reason (CB 304 at [75]-[77]);
c)as a person who had left Sri Lanka illegally (CB 304-305 at [78]-[84]). On the basis of the Applicant’s profile, as found, and relevant country information, the Tribunal found the Applicant might be prosecuted for breach of the Immigrants and Emigrants Act of 1948 (“the I&E Act”) but that any prosecution would occur under a law of general application that was not discriminatorily applied and therefore did not give rise to a well‑founded fear of persecution for a Convention reason; and
d)as to the likely penalty for the Applicant’s breach of the I&E Act, the Tribunal found on the basis of country information that:
i)the Applicant would be granted bail, once taken before a Court (CB 305 at [85]);
ii)if the Applicant could not immediately be taken to a Court, he would be held on remand for “one to several days” (CB 305 at [85]). The Tribunal acknowledged prison conditions “may not meet international standards”, but did not accept that the Applicant would face significant harm by virtue of a short stay in prison whilst on remand (CB 305-307 at [86]-[96]); and
iii)the Tribunal considered the likely penalty for the Applicant’s breach was a fine, which the Applicant had capacity to pay (CB 307 at [95]). During the hearing, the Tribunal invited evidence and argument about this issue; the Applicant’s evidence was that he did not intend to return to Sri Lanka and had accordingly not given any thought to his ability to pay any fine (CB 297 at [45]).
The Tribunal considered the Applicant’s claims on a cumulative basis, but was not persuaded that they gave rise to a well‑founded fear of persecution or a real risk of “significant harm” (CB 307-308 at [97]-[103]).
For these reasons, the Tribunal affirmed the delegate’s decision.
Judicial Review
The Applicant’s grounds for review are:
a) the Tribunal’s decision is affected by an error of law; and
b) the Tribunal’s decision denied the Applicant procedural fairness.
The Applicant was self-represented at the judicial review hearing and was assisted by an interpreter in the Tamil 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”.
During the course of these proceedings it emerged that the Applicant’s complaint was that he was not afforded procedural fairness at the Tribunal hearing because of the paucity of the interpretation. At the Tribunal hearing, the Applicant was assisted by an interpreter in Tamil and English languages. The Applicant said words to the effect that, “the interpreter didn’t do a good job – didn’t tell accurately”. The Applicant said that whenever he gave evidence, his evidence was translated into English in a much shorter sentence. The Applicant clearly believed that this had the result that his evidence could not have been conveyed accurately to the Tribunal by the interpreter. I confirmed with the Applicant that his second ground for judicial review which he wished to prosecute was that he was denied procedural fairness because the interpretation was so inadequate that he was not given an opportunity to give evidence and make submissions. He confirmed that this was the only basis upon which he sought judicial review.
As the Applicant was self-represented, I explained to him that to make good such an argument, he would need to provide the Court with relevant documentation (admissible evidence). It should be noted that the only documents filed by the Applicant prior to the judicial review hearing was his application for judicial review and an affidavit in support of the application, both of which were filed on 12 February 2015. I explained to the Applicant that he would need to provide to the Court a transcript of the proceedings before the Tribunal and a further document prepared by a competent or accredited interpreter which sets out in English what the Applicant said to the Tribunal (in other words, the evidence he gave in Tamil) so that this could be compared to the translation in English given by the interpreter at the Tribunal hearing. I also enquired of the Applicant whether he wished to make an application for an adjournment of the hearing to enable him to provide relevant documents to the Court, in order to support his ground for judicial review. I informed him that if he did wish to proceed with an adjournment there would be costs involved for him in obtaining the documents and there may be costs awarded by the Court in relation to this adjournment. The Applicant confirmed that he understood that there would be costs involved in filing the documents and that he may face a costs Order. He confirmed that he sought an adjournment of the final hearing.
Counsel for the Minister, having obtained instructions, vigorously opposed the adjournment. I decided that I should grant the adjournment subject to particular conditions to which I will shortly refer. The Minister applied for costs thrown away by reason of the adjournment in the amount of $3,306.
On 18 July 2016, I made the following Orders:
1)The proceeding is adjourned for final hearing on 11 October 2016 at 11.30am.
2)The Minister provide the Applicant with an audio recording of the transcript of the Tribunal hearing held on 3 December 2014 within 7 days of these Orders.
3)The Applicant file and serve any supplementary documents or admissible evidence no later than 22 September 2016.
4)The Applicant file and serve any written submissions by 22 September 2016.
5)In the event that the Applicant fails to comply with Order 3 above, the Court will proceed on the basis of a Reserved Judgment and the hearing listed for 11 October 2016 will be vacated.
6)The First Respondent file and serve any supplementary submissions by 4 October 2016.
7)The Applicant pay the First Respondent for the costs thrown away today in the fixed amount of $3,306.
8)Liberty to apply.
The Applicant did not file any supplementary documents, admissible evidence or submissions on or before 22 September 2016. Indeed, the only documents which the Applicant has filed at the time of writing this judgment is a notice of address for service. Consequently, I have proceeded on the basis of a reserved judgement, and the adjourned hearing listed for 11 October 2016 has been vacated.
Judicial review
Ground two – procedural fairness
In light of the submissions made by the Applicant at the judicial review hearing held on 18 July 2016, I have approached the Applicant’s ground of review that the decision of the Tribunal denied the Applicant procedural fairness as appropriately characterised as:
The Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) because the Applicant was denied the opportunity to give evidence and make submissions.
The particulars to such a ground of review, again in light of the submissions made by the Applicant, are that the interpreter made available to assist the Applicant at the Tribunal hearing failed to accurately translate the Applicant’s evidence.
In a recent decision, Edelman J in BZAID v Minister for Immigration and Border Protection [2016] FCA 508 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 v Minister for Immigration and Border Protection (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.
Given there is no documentation before the Court, I am unable to consider whether the interpretation or translation of the Applicant’s evidence was deficient such that he was denied an opportunity to give evidence and make submissions.
On the face of the Tribunal’s decision record, there is nothing to suggest that during the course of the hearing the Applicant raised with the Tribunal member his concern that the interpreter’s translation of his evidence was too short, or that he had issues with the length of the translation into English.
In the absence of any cogent evidence to support the Applicant’s ground of review regarding a deficiency of the translation provided by the interpreter at the Tribunal hearing, I am bound to find that this ground of review is not made out.
At the judicial review hearing on 18 July 2016, the Applicant confirmed that his ground of review, that he was denied procedural fairness, related only to the issue of translation.
Out of an abundance of caution, however, I will consider whether the Tribunal failed to comply with the statutory provisions relating to the natural justice hearing rule specified in the Migration Act 1958 (Cth) (“the Act”).
The relevant provisions of div.4 of pt.7 of the Act include s.422B which relevantly provides:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Sub-section 425(1) of the Act provides that:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 424A of the Act relevantly provides that:
(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
The provision of information which the Tribunal considers would be the reason or part of the reason for affirming the decision which is under review may also be given orally at the Tribunal hearing: s.424AA of the Act.
I agree with the Minister that, in the circumstances of this case, the obligation under s.424A of the Act was not engaged because the Tribunal’s decision turned on the Tribunal’s subjective appraisals, thought processes and consideration of the Applicant’s claims and evidence; not “information” in the requisite sense: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [24] per Finn and Stone JJ. Material going to credit is likewise not “information” for the purposes of s.424A of the Act: MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [27] per Heerey J; Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [21]‑[25] per French CJ, Heydon, Crennan, Kiefel and Bell JJ.
In addition, the Applicant was on notice at all times that the issue of his credibility was one that would be of concern to the Tribunal (see paragraph [12] above).
The Applicant was invited under s.425 of the Act to attend a Tribunal hearing, and did so with the assistance of his migration agent and an interpreter in Tamil and English languages. I have already dealt with the question of whether the Tribunal failed to comply with its obligations under s.425 of the Act because of the alleged paucity of the interpretation during the Tribunal hearing.
I am satisfied that the Tribunal complied with its natural justice hearing obligations under the Act.
Accordingly, I find that the Tribunal did not deny the Applicant procedural fairness.
Error of law
As I have earlier stated, the Applicant said at the judicial review hearing on 18 July 2016 that he did not pursue his ground of review that the decision of the Tribunal is affected by an error of law. Again, out of an abundance of caution I will briefly deal with this ground. I have considered the Tribunal’s decision record and can discern no jurisdictional error.
In my opinion, the Tribunal arrived at a decision that was open on the material before it: compare Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.
I am satisfied that the Tribunal:
a)correctly articulated the legal framework within which the application fell for consideration;
b)gave proper consideration to the Applicant’s claims, submissions and extracted country information. To the extent that the Applicant challenged the reliability of the Department of Foreign Affairs and Trade (“DFAT”) country information, the Tribunal had regard to the submission and determined the DFAT material was “reliable and independent” (CB 303 at [75]); and
c)arrived at conclusions based on the Applicant’s evidence and relevant country information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.
The Minister relies on, what is evident from the decision record, the fact that the Tribunal’s adverse credibility findings regarding the Applicant’s claims to past persecution formed a critical part of the Tribunal’s decision to affirm the decision under review. The Minister argues that findings on credit are findings of fact in the Tribunal’s exclusive jurisdiction of the Tribunal: Re the Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J.
In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 the Full Court held that findings of adverse credibility by a Tribunal are not immune from judicial review. Their Honours said:
37. … The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well‑established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.
38 . There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
Having considered the Tribunal’s decision record, I am not satisfied that its credibility findings are open to challenge on the grounds of jurisdictional error.
Accordingly, I find that the decision of the Tribunal was not affected by an error of law.
Conclusion
For the reasons set out in this judgment, I will make Orders that the application for judicial review be dismissed. It is not apparent to me that the First Respondent has incurred any further costs in these proceedings. Accordingly, I will not make an Order that the Applicant pay the First Respondent’s costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 2 February 2017
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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