MZYJJ v Minister for Immigration
[2011] FMCA 247
•21 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYJJ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 247 |
| MIGRATION – Whether Tribunal failed to consider relevant information – whether applicants prevented from making proper use of their interpreter – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 414, 420, 422B, 424, 425, 474 |
| Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] 140 FCR 572 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZWUA v Minister for Immigration & Multicultural Affairs [2006] FCA 1625 |
| Applicants: | MZYJJ & MZYJK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1134 of 2010 |
| Judgment of: | Turner FM |
| Hearing date: | 29 March 2011 |
| Date of Last Submission: | 29 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 21 April 2011 |
REPRESENTATION
| The Applicants’ appeared In Person with the assistance of a Sinhalese interpreter |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application for judicial review filed 13 August 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1134 of 2010
| MZYJJ & MZYJK |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first-named applicant (husband) (hereinafter referred to as “the applicant”) and his wife arrived in Australia, most recently, on
29 October 2009. The applicants lodged a Protection (Class XA) (subclass 866) visa application on 10 November 2009.
This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 19 July 2010 that affirmed the decision of the delegate not to grant the applicants Protection (Class XA) visas.
The matter came on for hearing at 10.15am on 27 January 2011. At 9.40am that morning the Court received an email from the applicant together with a doctor’s certificate. The doctor’s certificate did not state that the applicant was unable to attend Court and was inadequate to justify an adjournment (MZWUA v Minister for Immigration & Multicultural Affairs [2006] FCA 1625 per Justice Middleton at [7]).
The applicant’s email stated that:
I am admitted to emergency care at Maryborough District Hospital today with a suspected renal calculus. Therefore I am unable to attend the hearing tomorrow”
The applicant sought an adjournment. The applicant’s wife gave evidence that the applicant was admitted to hospital at 10pm on
26 January 2011. The applicant was then contacted by the Court by telephone at his doctor’s rooms; he confirmed that he was admitted to hospital the night before, and did not appear to the Court of being capable of making submissions. The matter was therefore adjourned until 10am on 10 February 2011, with the first respondent’s application for costs dismissed on the basis that the situation was beyond the control of the applicants. By orders by consent on 9 February 2011 the hearing was adjourned until 29 March 2011.
The following orders were also made by consent on 9 February 2011:
(1)The applicants file and serve a supplementary Court Book comprising a Transcript of proceedings before the Second Respondent on or before 10 March 2011.
(2)The applicants file and serve an Amended Application setting out the grounds relied upon on or before 10 March 2011.
(3)The applicants file and serve an Amended Outline of Submissions on or before 10 March 2011.
(4)The first respondent file and serve any Amended Outline of Submissions on or before 24 March 2011.
(5)The matter be listed for hearing at 10.15am on 29 March 2011.
(6)The applicants pay the first respondent’s costs thrown away, if any, in respect of Submissions filed and served in preparation for hearing on 10 February 2011, as adjourned.
(7)Costs otherwise be reserved.
Order 1 above was not complied with.
Order 2 above was not complied with.
Order 3 above was not complied with.
Order 4 above was not complied with.
The matter came on for hearing on 29 March 2011. The applicant told the Court that he did not have an Amended Application or Amended Contentions. The applicants were therefore limited to the grounds in the Application filed on 13 August 2010 and the applicants Contentions of Fact and Law filed on 21 January 2011. A copy of the transcript of the proceeding before the Tribunal was tendered and marked Exhibit A1.
The application filed by the applicants on 13 August 2010 contains the following grounds:
(1)The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 of the Migration Act 1958 (the “Act”) to grant or refuse the applications and its powers to conduct a review under s414 of the Act.
(a)The Tribunal failed to take into account relevant documentation provided, namely documents relating to the legal procedure in Sri Lanka for change of name.
(b)The Tribunal failed to afford the applicants natural justice by not allowing the applicants to make proper use of the interpreter.
Ground 1(a) complains that the Tribunal failed to take into account relevant documentation relating to the legal procedure in Sri Lanka for change of name. The Tribunal referred to the applicants changing their family name (Court Book (“CB”) 518 [165] & [166]).
The Tribunal found that the applicant was required to make the name change public (CB 518 [167]).
The claim that the Tribunal failed to take relevant documentation into account relating to the applicants name change, is dismissed, as the Tribunal took that documentation into account (CB 518 [165] & [166).
Applicant’s contentions of fact and law
The applicants filed Contentions of Fact and Law on 21 January 2011. It is contended that the change of name was not done for commercial reasons, and that the reason was the ethnic conflict in Sri Lanka, and the possible perception by the Singhalese population that the applicants have some Tamil heritage and that they feared persecution from such people on the basis of their background. This claim is dismissed (post).
As to the allegation that the Tribunal misconstrued or misinterpreted the Convention criteria in relation to state protections (sic); even if this is so, it is not determinative of the matter. The Tribunal was not required to consider state protection as it found that “since the cessation of those riots (in 1983), the visa applicant has not been affected by the civil tensions in Sri Lanka (CB 517 [164]), and has not been prevented from earning a livelihood (Ibid)”.
It is alleged that the Tribunal misconstrued the Convention criteria, and that the test is not “whether the Sri Lankan government was unable or unwilling to protect the applicants?”, but rather “whether the applicant owing to a well founded fear is unable or unwilling to avail himself of the persecution of the Country”. This contention depends on the applicants having a well founded fear of persecution; The Tribunal held that they do not (post). That finding of fact is not amenable to review. The Court relies on the decisions in Quin, SHUB and SZINP (post). This ground is dismissed.
The applicants contend then that the Tribunal did not discuss “how the degree of state protection available in Sri Lanka could make fear of persecution at the hands of the “PA” (United Peoples Freedom Alliance) members/supporters, an unfounded fear”. The Tribunal set out in detail why it found that the applicants did not have a well founded fear of persecution (CB 517 [164], 518 [165], [166] & [167], 519 [173], [174], [176], [177] & [178], 520 [179], 521 [183], 522 [184], [188], [189], 523 [190, [194] and 524 [195]. Detailed reasons for the finding about the PA was unnecessary as it was subsumed in the finding of greater generality that the applicants had no basis for a well founded fear ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]; (2003) 75 ALD 630 at [47]. That claim is dismissed.
The applicants complain that the Tribunal made no reference to country information on which the applicants seek to rely (see post).
Alleged bias
The applicants allege that the Tribunal did not refer to the country information relied on by the applicants, as if it had “it could not have come to the same conclusion”. This contention amounts to a possible allegation of bias.
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicants would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently; see e.g., Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 (Jia) at 531 per 531 per Gleeson CJ and Gummow J.
A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.
In Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”.
The applicant alleges that the Tribunal member was biased because she said that the applicant was studying aged care to achieve a migration outcome (T 229 March 2011 p.24, l.43). That finding does not form part of the Tribunal’s reasons for decision. There is nothing to show that the Tribunal “acted dishonestly or arbitrarily or capriciously” SBBS (supra). The applicant has not established that the Tribunal member had a closed mind (Jia supra).
Bias has not been established. The allegation of bias is dismissed.
Alternatively, the contention is that if the Tribunal had considered the country information it could not have made the findings of fact it did.
Findings of fact are for the Tribunal alone. A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:
16 “I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
“A Tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
Change of name
The applicant claimed before the Tribunal that the family changed its name because of a fear of persecution. The first respondent argued before the Tribunal that if the family were attempting to conceal their Tamil origins, they would not have publicly announced their name change. (CB 518 [166]).
The Tribunal found that the name change was for commercial reasons and that the Sri Lankan Births and Deaths Registration Act states that in practice name changes should be notified in a newspaper. The Tribunal found that the name change was in 1985.
The rejection by the applicants of the finding of fact by the Tribunal that the name change of the family was for commercial reasons (CB 487 [42]), is an attempt to review the merits of the decision, which is not open to the applicants, and is dismissed.
There was evidence before the Tribunal to support the finding that the name change was for “better opportunity” (CB 502.3). There was also evidence that the applicant’s mother had her reasons for changing their names “possibly she wanted to make sure that they could marry Singhalese ladies” (CB 499 [122]). This is contrary to the claim that the name was changed because of fear of persecution. This claim is dismissed.
The Tribunal did not accept the applicant’s evidence that his family changed their name to “ensure that he (they) did not attract any attention due to any perception by the Singhalese that he (they) had some Tamil heritage. The Tribunal stated its reasons for rejecting that evidence (CB 518 [169]). The Tribunal is free to accept or reject evidence as it thinks appropriate. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Tribunal did not find it plausible that the applicant had suffered any discrimination or persecution on the basis of his father being associated as a Tamil (CB 518 [171]).
The Tribunal found that the applicants “never had cause to fear persecution in Sri Lanka” (CB 518 [176]) for the reasons it set out. That finding was open to the Tribunal on the material before it, and is not amenable to review.
The Tribunal found that “there was now ample evidence to suggest that the situation in Sri Lanka has ameliorated from the perspective of the Tamil people and that there was evidence that since the defeat of the Tamil Tigers in May 2009 Sri Lanka has moved towards stability and has aspirations for inter-ethnic reconciliation” (CB 520 [179]). The Tribunal referred to the evidence, including country information, in support of that conclusion [Ibid].
The Tribunal did “not find that the first named visa applicant has ever had any adverse profile with the authorities in Sri Lanka”, and found that “there is nothing about the visa applicant’s profile which would place him in the category of at risk persons” and that “he faces no risk of coming to the attention of the authorities on his return to Sri Lanka” (C 522 [183]).
The Tribunal did “not accept that there is a real chance that the visa applicant would face persecution on return to Sri Lanka now or in the reasonably foreseeable future on account of his ‘perceived’ Tamil heritage”; the Tribunal found that his fear in this regard is not well founded (CB 522 [184]).
The Tribunal found that the applicants “verbal account…suffered from a lack of coherence and detail” and that “given the evidence overall… the applicant was not able to provide coherent account of the claimed events involving threats and abuse because they actually did not occur” (CB 522 [188]).
The Tribunal stated that the country information before it did not indicate that there would be any such adverse attention on the applicants (CB 523 [194]).
Particular social group
The Tribunal considered the claim of persecution by reason of membership of a particular social group, of being “a Singhalese Buddhist who may be perceived as a Tamil” (CB 524 [199]). The Tribunal did not accept that the first applicant could be seen as a Tamil by definition, and did not accept that such a particular social group could even be in existence (CB 525 [201]). These findings of fact were open to the Tribunal and are not amenable to review (supra).
The Tribunal set out the evidence of the applicants which it did not accept and the reasons for its rejection (CB 525 [202] to CB 527.5). The Tribunal was entitled to accept or reject that evidence. Lee (supra).
Claims by second named applicant
The Tribunal then considered the claims of the second named visa applicant (CB 527 [203]) and found that “family disputes over preferable marriage partners does not constitute serious harm”, and that “it has not been able to locate country information by human rights non-government organisations that points to persecution on the basis of intermarriage by a Singhalese to a Tamil person” (Ibid).
The Tribunal found that there “is not a real chance that the second named visa applicant faces persecution on account of her marital status (ethnicity) were she to return to Sri Lanka now or in the reasonably foreseeable future” (CB 528 [204]).
The Tribunal found also that “there is not a real chance that the second named visa applicant will face persecution on account of membership of a particular social group, women, were she to return to Sri Lanka now or in the reasonably foreseeable future” (CB 529.1)
The Tribunal did not accept that the second named applicant will be harmed on account of her religion, ethnicity or membership of a particular social group, or because she belongs to her husband’s family (CB 529 [207]).
The Tribunal found that the visa applicants do not have a well founded fear of persecution and that there is not a real chance that they will be harmed now or in the reasonably foreseeable future were they to return to Sri Lanka on account of their political beliefs, ethnicity, and membership of a particular social group (CB 529 [208]).
All of the above findings of fact were open on the material before the Tribunal and are not amenable to review. Having made those findings it was not necessary for the Tribunal to make a finding on the availability of state protection. Neither applicant had the requisite well founded fear. The issue of the construction of the Convention criteria therefore has no relevance.
Country information
As to the allegation that the Tribunal did not refer to the country information relied on by the applicants, the Court refers to the following decisions.
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.” NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11].
It is settled law that s.424A(3)(a) excludes country information from the requirements of s.424A(1): Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] 140 FCR 572 at [64]-[74] and at [112]-[138] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]. Accordingly, the Tribunal was not obliged to provide independent country information to the applicant for comment.
“Both the choice and the assessment of the weight of” country information is a matter for the RRT. “The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
“The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected it, or attributed less weight to it than to another item.” NAHI supra [14].
“The Tribunal does not commit jurisdictional error when it prefers one body of country information over another.”
NAHI supra at [13-14] and affirmed by the Full Court in VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [26].
The applicant claims that the Tribunal did not consider country information produced by him. The Tribunal referred to country information supplied by the applicants (CB 509 [148]) about the war on Tamils in Sri Lanka (CB 495 [95]) and provided country information to the applicants indicating that the situation in Sri Lanka has settled after the war… (CB 499 [121]). The Tribunal considered country information at CB 520 [180] et seq. – 521, 527 and 528 [203 – 206]. The claim that the Tribunal did not consider relevant country information is dismissed.
The applicant complains that the Tribunal member referred to “Human Rights reports and other materials” that was not given to the applicant. As found above the Tribunal was not obliged to provide independent country information to the applicant NAMW and VJAF supra.
Alleged failure to take relevant information into account
First, the Court has found that the Tribunal took into account relevant documents relating to the legal procedure in Sri Lanka for a change of name (supra).
Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J.
In MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314, Middleton J said at [13]–[15]:
“It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J).
A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.
The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).”
In VQAB v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 104, the Full Court decided at [25]:
“The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence”.
“The Tribunal is not required to address every piece of evidence before it, provided that it considers the integers of the claim”: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 342 [79] per Allsop J with whom Heerey J agreed. But as French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs at [47] (supra):
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure expressly to deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”.
However, the Court found:
“It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked”. Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 per Rares J at [46].
The Court does not find that the Tribunal failed to take into account a consideration which it is bound to under the Act. The elements of the claim about the change of name were considered (CB 518 [165] – [167]) and the failure to mention expressly part of the applicants evidence does not show jurisdictional error.
The issue of whether the applicants had to publish the name change was identified by the Tribunal (CB 518 [165]-[167]) and the Court does not find that the Tribunal failed to consider the issue or the documentation referred to by the applicants. It was unnecessary for the Tribunal to make a finding on that particular documentation because it was subsumed in the finding of greater generality (WAEE supra) that “the applicant was required to make the name change public” (CB 518 [167]). The Tribunal referred to and analysed the documents that the applicants submitted (CB 518 [166]). The Tribunal accepted that the applicants’ family was required to make their name change public. The issue is whether the name was changed out of fear of persecution or for another reason. There was material before the Tribunal to support its finding that the name change was not made out of fear (CB 502.3). This issue is subsumed in the finding of greater generality that the Tribunal did not accept that the applicant would face persecution… now or in the reasonable foreseeable future on account of his perceived Tamil heritage (CB 522 [184]).
Ground 1(a) is dismissed.
Alleged problems with interpretation
Ground 1(b) complains that the Tribunal failed to afford the applicants natural justice by not allowing them to make proper use of the interpreter.
Section 422B states the:
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.
A breach of that Division is neither alleged nor apparent.
The question is whether the interpretation “was so incompetent that he (the Applicant) was prevented from giving his evidence”: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]. As stated in Perera at [45], the “departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision”.
A breach of s.425 of the Act has not been alleged or established. That component of ground 1(b) is dismissed.
At the hearing on 10 February 2011 the Court invited the second named applicant to make further submissions. None were made. The Court invited the applicants to make further submissions at the hearing on 29 March 2011. The following submissions were made by the applicant.
The applicant submitted that by interrupting proceedings on 8 April 2010 the Tribunal prevented the applicant from giving his evidence and putting submissions. The applicant sought to refer to what the interpreter said to him about the interruptions. The Court refused to accept that evidence from the bar table. The interpreter is currently overseas but an affidavit by her could have been prepared.
The Court stood the matter down for 30 minutes to enable the applicant to locate the relevant pages in the transcript.
The applicant referred to the following pages of the transcript of
8 April 2010:
a)Page 7, lines [20] – [25]
The applicant claimed that because of an interruption by the Tribunal member he was prevented from giving an explanation about his father being a Tamil. The evidence given by the applicant on page 7 flows without apparent disruption. The applicant had given evidence about a subtle difference in language and, that until he was fifteen, he could not tell the difference, or if his father was a Tamil. The Tribunal then asked the applicant for an explanation of the subtle difference, and the applicant gave his explanation. It is clear that the Tribunal was aware that in Sri Lanka it is difficult to distinguish between a Malayalam and a Tamil and that his father was perceived as a Tamil (T 8 April 2010 p. 6, l.41). The applicant submitted that he wanted to tell the Tribunal that he “didn’t see his father as a Tamil” (T 29 March 2011 p.11, l.38). It is not apparent that he was prevented from giving that evidence to the Tribunal. The Tribunal concluded that the applicant did not see his father as a Tamil which the applicant says is not true (T 8 April 2010 p.7, l.126). The Court does not find that the interpretation was so incompetent or that there was an interruption whereby the applicant was prevented from giving his evidence about a matter of significance for the applicant’s claim or for the Tribunal’s decision Perera (supra) and notes that, when asked, the applicant was unable to tell the Court with clarity what effect his explanation could have had for his case (T 29 March 2011 p.15, l.23).
b)Page 19, lines 35 – 40
Again it is said that an interruption by the Tribunal member prevented the interpreter from stating what the applicant said to her. That is not apparent from the transcript. The applicant told the Court that he was trying to elaborate on how he was discriminated against when trying to get a job. The Tribunal invited the applicant to continue with his evidence (T 8 April 2010 p.20, l.1). The Court is not satisfied that the applicant was prevented from giving his evidence about a matter of significance for his claim or for the Tribunal’s decision.
c)Page 33, lines 15 – 30
The applicant states that he was trying to explain his activities in campaigning, but that he could not gather his thoughts because of the interruption (at line 15). The applicant told the Court that he was not prevented from giving his evidence but that the interruptions meant that he could not gather his thoughts (T 29 March 2011 p.20, l.30-34). The Court does not find that the applicant was prevented from giving his evidence about a matter of significance for his claims as for the Tribunals decision.
d)Page 46, lines 10 – 30
The applicant told the Court that he was trying to explain to the Tribunal that he did not give his full story in his initial application because he was confused and he did not have anyone to advise him
(T 29 March 2011 p.21, l.20). The applicant explained to the Tribunal that he did not tell the real reason for his application because there was no-one to advise him (T 8 April 2010 p.46, l.121).
It is not apparent from the transcript that an interruption occurred that prevented the interpreter from interpreting the applicants’ evidence to the Tribunal about a matter of sequence for his claim or for the Tribunal’s decision.
e)No other instances were referred to.
The Court notes what was raised in the transcript of 8 April 2010 at page 4, line 15, as follows:
As yet I’ve not made a decision in your case; I will give you an opportunity to tell me anything that you think is relevant to your application and I’ll give you as much time as you need. Today we’re using an interpreter. Will you be using the interpreter?
(Applicant): “Sometimes if I don’t understand, probably sometimes I ask her something”.
Okay, all right. If there’s any difficulty and you think the interpreter isn’t getting across to me everything that you’re attempting to say, then please let me know, okay. It’s very important that you and I communicate clearly today.
It can be seen from the transcript that much of the time the applicant made submissions without the interpreter; but with her assistance at times. The applicant did not tell the Tribunal member that there was any difficulty getting across things he wanted to say.
The applicant submitted that the problems with the interpreters occurred at the hearing on 8 April 2010 only. The Court asked the applicant why, if he felt that he had been prevented from giving his evidence at the first hearing he did not seek to rectify that at the second hearing before the Tribunal. The applicant said that he was told that the second hearing was to cover two issues only and that therefore he did not seek to give further evidence.
The opportunity to give further evidence about Tamil ethnicity arose during the hearing on 13 May 2010 (Transcript p.4, l.23-27), but the applicant gave only limited detail.
The Court finds it improbable that if the applicant felt that he had been denied an opportunity to put his evidence in full, he would not have sought to put that evidence on 13 May 2010. Both applicants gave evidence with the aid of an interpreter on that day.
The applicant has failed to establish that “the interpretation was so incompetent or that there were interruptions whereby he (the applicant) was prevented from giving his evidence… in relation to a matter of significance for the applicant’s claims on the Tribunal’s decision” Perera (supra).
This component of ground 1(b) is dismissed. The whole of ground 1(b) is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application for judicial review is dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 21 April 2011
32
1