MZZGY v Minister for Immigration

[2014] FCCA 362

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZGY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 362

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – adequacy of interpretation – application of s.36(2)(aa) of the Migration Act 1958 (Cth) – application of relocation principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425, 427(2)

Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395
Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231
Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 121 ALD 466
Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 1
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Applicant: MZZGY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 244 of 2013

Judgment of: Judge Whelan

Hearing date: 14 February 2014

Date of Last Submission: 14 February 2014

Delivered at: Melbourne

Delivered on: 14 February 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms Latif

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The Application filed 1 March 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 244 of 2013

MZZGY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision of the

   
   

   Refugee Review Tribunal (“the Tribunal”) on 5 February 2013. In its decision, the Tribunal affirmed the decision of a delegate of the

   
   

   First Respondent not to grant the Applicant a protection visa.

   
   

   The Applicant now seeks the following orders:

   1.  A writ of certiorari quashing the decision or alternatively an order setting aside the decision

   2.  A declaration that the decision is invalid

   3.  An order remitting the matter to the Respondent for determination according to law. 

   4.  Costs.

   5.  Such further or other orders as to the Court deems fit.[1]

   The Court has been assisted in the preparation of this judgment by written[2] and oral submissions by the First Respondent, and by written submissions[3] by the Applicant.

   [1] Application filed 1 March 2013, at pp.3-4.

   [2] First Respondent’s Contentions of Fact and Law filed 6 August 2013.

   [3] Applicant’s Contentions of Fact and Law filed 9 July 2013.

Background

1. The Applicant is a citizen of India who entered Australia on a student visa on 6 October 2008. On 8 August 2012, the Applicant applied for a protection visa. As part of the consideration for the visa application,

   
   

   a delegate of the First Respondent interviewed the Applicant.

   
   

   The interview was conducted by phone without the assistance of an interpreter. On 21 September 2012, the delegate refused to grant the Applicant a visa. On 11 October 2012, the Applicant applied to the Tribunal for a merits review of the delegate’s decision. The application was made with the assistance of a migration agent who indicated that the Applicant would require the assistance of a Punjabi interpreter.

2. On 14 December 2012, the Applicant was invited to attend a hearing before the Tribunal to present evidence and argument in support of his application. On 20 December 2012, the Applicant’s migration agent sent a response indicating that the Applicant wished to attend the hearing and would not be represented at the hearing by his migration agent. The part of the form, which indicated whether an interpreter was required or not, was not completed.

Outline of the Applicant’s claims

1. The Applicant claimed to fear persecution by reason of his political beliefs. He claimed that when he was studying for his Bachelor of Commerce in India, he was an active member of the Congress Party in his local area and worked hard for party candidates during the elections.

2. The Applicant claimed he was threatened by the opposition leader of the Shiromani Akali Dal party (“SAD party”). He continued his work for the Congress Party and the threats continued. On his way home,

   
   

   the Applicant was attacked with knives and sticks, but the attack was public and he was saved. The Applicant claimed that his Father was also attacked. The Applicant had a friend who was a supporter of the SAD party and who tried to force him to join that party, but he would not join or support the SAD party. The Applicant stated that he had been subject to further attacks and that this was the reason for leaving India. The Applicant further stated he returned to India twice, once in 2009 and once in 2010. In 2009 there were no incidents. In 2010,

   
   

   the Applicant was in constant danger and unable to be protected by the local police.

3. In his interview with the delegate, the Applicant stated he was seeking protection because of threats on his life, and the reason for his fear was his support of the Congress Party. In submissions filed with the Tribunal,[4] the Applicant sought to address certain issues raised by the delegate. In particular, the Applicant stated that:

   There was no interpreter needed, however it should be noted that the applicant has a marked accent, as English is not his first language and the delegate did have problems in understanding his responses.[5]

   [4] Court Book filed 3 May 2013, at pp.108-116.

   [5] Ibid, p.108, at para.1.

4. The Applicant’s migration agent also made submissions concerning the complementary protection provisions of the Migration Act 1958 (Cth) (“the Act”). The Applicant asserted an entitlement to the complementary protection provisions on the same factual basis as he claimed to fall within the meaning of ‘refugee’ for the purposes of the Act.

The Tribunal’s decision

1. On 24 January 2013, the Tribunal conducted a hearing of the application which was attended by the Applicant, and he was assisted by an interpreter. The Tribunal considered the Applicant’s evidence regarding his involvement in politics to be vague and evasive, and that his understanding of the political system in the Punjab was poor.

   
   

   The Tribunal stated it had no hesitation in finding the Applicant was never involved with the Congress Party, or any other political party or politics in the Punjab at any time, and rejected all of the Applicant’s claims in this connection. The Tribunal also considered the Applicant’s claims concerning incidents of past harm to be vague, evasive and difficult to understand.

2. The Tribunal gave reasons for this assessment, stating the Applicant was asked several times to give detailed answers and a narration of events in chronological order, but, in large part, his evidence remained vague and general. The Tribunal considered that the lack of nuanced detail in the Applicant’s evidence raised serious doubt as to whether the Applicant was a target of violence at all. The Tribunal found the Applicant was never threatened or harmed in the manner he claimed. As a result of findings made on the basis of relevant country information, the Tribunal was not satisfied that the Applicant was the target of politically motivated violence. It was not satisfied that he had been pursued in a sustained manner over a considerable period of time. The Tribunal also rejected the claim for protection pursuant to s.36(2)(aa) of the Act on the same factual basis.

3. The Tribunal went on to consider the question of internal relocation.

   
   

   It stated that it did so as a separate, and additional, reason why the Applicant did not, in the Tribunal’s assessment, engage Australia’s protection obligations. The Tribunal considered the Applicant’s evidence and argument on the question of relocation and relevant country information, and determined it was open to the Applicant to relocate to another part of India.

Grounds for review

1. Stated succinctly, the Applicant’s grounds for review are whether: 

   ·

   By reason of the poor quality of the interpretation,

   
   

   it cannot be said that the Tribunal discharged its obligation to provide the Applicant with a hearing in terms of s.425 of the Act;

   ·The Tribunal, in its consideration of s.36(2)(aa) of the Act revealed a legal error; and

   ·The Tribunal committed a jurisdictional error in relation to its findings on relocation.

2. The Applicant, in written submissions,[6] stated that, in relation to the failure of procedural fairness:

   ·The evidence of the Applicant was not properly interpreted by the interpreter provided on the day; 

   ·The English interpretation given to the Tribunal was not what the Applicant had stated in his evidence and this occurred many times; 

   ·The Tribunal, on many occasions, was forced to ask the interpreter to explain his interpretation; 

   ·The Applicant had to state to the interpreter that he did not say what had been interpreted to the Tribunal; 

   ·The interpreter attempted to explain again what the Applicant had stated, but still failed to convey the proper interpretation; and

   ·The errors made by the interpreter were material to the conclusions of the decision-maker, which were adverse to the Applicant.

   [6] Applicant’s Contentions of Fact and Law filed 9 July 2013.

3. The Applicant also stated that he could not reasonably be expected to locate elsewhere within India. He claimed that the Tribunal had not taken into account the relevant principles as set out by Black CJ in the case of Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 1 (“Randhawa”). The Applicant referred to specific passages from that judgment. The Applicant reiterated that, on the basis of the reasoning in Randhawa, he could not be expected to reasonably relocate. With respect to the criteria in s.36(2)(aa) of the Act, the Applicant submitted that, if he returned, he would be attacked by his enemies as in the past where he was attacked with knives and sticks, and that there was a great possibility he could be killed or subject to physical harm.

The First Respondent’s submissions

1. The First Respondent, in its response to the grounds for review,[7] took the Court to aspects of the Court Book with respect to the issues of:

   ·The Applicant’s understanding of English;

   ·Responses the Applicant gave to the Tribunal about his English language ability; and

   ·What the Tribunal had said about the way it had conducted the hearing.

   The First Respondent submitted that the Tribunal’s record of hearing suggested the Applicant was constantly encouraged to provide detailed answers to questions and provide more information. While the Tribunal indicated it was having difficulty understanding the Applicant’s evidence, particularly the chronology of events, there was no indication that that issue arose from difficulties of interpretation.

   [7] Response to Application filed 13 March 2013.

2. By reference to relevant case law,[8] the First Respondent submitted that the Courts have construed the combined effect of ss.425 and 427(2) of the Act as obliging the Tribunal to provide a competent interpreter where the applicant is not proficient in English. The question for the Court is whether the quality of the interpretation was such that the applicant was unable to give evidence and present his case adequately.[9] The First Respondent submits there is no evidence of interpreter error or any indication of how any such error affected the Court’s jurisdiction. The Applicant’s submissions, at their highest, indicate difficulties in the use of interpretation as a medium of communication, but they are insufficient to engage the principles relating to errors of interpretation. For these reasons, the First Respondent submits that there is no basis for a finding of interpreter error or breach of s.425 of the Act.

   [8] See Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231.

   [9] See Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395.

3. With respect to the Tribunal’s findings concerning s.36(2)(aa) of the Act, the First Respondent submits that the Applicant’s claim for complementary protection arose from the same facts as his claim for refugee status. Having rejected the Applicant’s claims on the basis of the Tribunal’s assessment of credit, there was no factual basis for finding the Applicant was entitled to complementary protection under s.36(2)(aa) of the Act. The First Respondent submits that the Tribunal’s credibility findings were open to it on the material before it,[10] and the Tribunal had fulfilled its obligation to consider the claims advanced, or reasonably apparent. The Applicant’s challenge to the finding is really a challenge to the merit as found by the Tribunal’s decision and is, therefore, not a matter for the Court.

   [10] See Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609.

4. With respect to the relocation issue, the First Respondent also submits that there is no jurisdictional error. An applicant may be refused refugee status where it is reasonable for that person to relocate to a safe area within the country of his or her nationality or citizenship. The

   
   

   First Respondent also refers to the case of Randhawa, and says that the question is whether it is reasonable, in the sense of practicable, for the Applicant to relocate to another region where objectively, there is no appreciable risk of the occurrence of the feared persecution. What is reasonable, in the sense of practicable, depends on the particular circumstances of the applicant and the impact upon that person of relocation within the country of nationality.[11]

   [11] See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

Conclusions

1. In this matter, the Applicant relies on a failure of the Tribunal to:

   ·Comply with s.425 of the Act, because of the quality of the interpretation;

   ·Correctly apply the relocation test; and

   ·Properly apply and consider s.36(2)(aa) of the Act.

   With respect to this last ground, the Applicant’s submission suggests what really amounts to a challenge to the finding of the Tribunal that he was never threatened or harmed in the manner claimed by him.

   
   

   Having made that finding with respect to s.36(2)(a) of the Act,

   
   

   the Tribunal was not obliged to reconsider the same claim with respect to the criteria set out in s.36(2)(aa) of the Act.

2. Having found that the Applicant was not attacked with knives and sticks and that there was no possibility he could be killed or otherwise suffer physical harm for the purposes of s.36(2)(a) of the Act,

   
   

   the Tribunal was entitled to apply those same findings with respect to s.36(2)(aa) of the Act.

3. With respect to the issue of interpretation, the Applicant has produced no transcript of the hearing, nor identified where the English interpretation given to the Tribunal was not what the Applicant had stated. Further, the Applicant has not identified where any errors, which may have been made by the interpreter, were material to the conclusions reached by the Tribunal. Whether any inadequacy in translation has been such as to deprive an applicant of a hearing in accordance with s.425 of the Act requires an examination not only of the errors, but whether they related to matter of substance and whether they impacted on the reasons for the decision.

4. In the case of Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 (“Perera”), referred to by the

   
   

   First Respondent, Kenny J discussed the role of interpreters in Tribunal proceedings. Her Honour stated:

   An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end.[12]

   [12] (1999) 56 ALD 231 at para.24.

5. The principles arising from Perera recognise that the standard of interpretation is not one of perfection. The criteria are those of precision, accuracy and competence. The interpretation must express in one language as accurately as that language and the circumstances permit the idea, or concept, as it has been expressed in the other language. Further, not every departure from the standard of interpretation will be sufficient to establish that the applicant was denied the opportunity to a hearing under s.425 of the Act. The onus is on the applicant to demonstrate that the departure related to a matter of significance to his or her claim and there was a sufficient connection between the inadequate translation and the Tribunal decision.

6. [18] Ibid, p.8 at lines 15-17.

   From the transcript of the Tribunal hearing (“the transcript”),[13] it is apparent that the member of the Tribunal explained to the Applicant the role of the interpreter.[14] The Applicant was then asked, “do you understand the interpreter?” to which he responded “yes”,[15] and

   
   “do you have any objections to using this interpreter?”

   to which the Applicant responded “no”.[16] The Tribunal member then said,

   
   “I’m going to ask the interpreter if he understands you”

   and the interpreter responded “yes”.[17] The Tribunal member also stated,

   
   “if there’s something that you don’t understand … it’s important for you to let me know so that I can try and clarify it for you”.[18]

   [13] Affidavit of Laura Morfuni filed 7 February 2014, at Annexure “LM-1”.

   [14] Ibid, p.8, at lines 10-18.

   [15] Ibid, p.8 at lines 18 and 20.

   [16] Ibid, p.8 at lines 22 and 24.

   [17] Ibid, p.8 at lines 26 and 28.

7. The Tribunal recounts in some detail the questioning of the Applicant and his responses.[19] This included the Tribunal asking the Applicant similar questions on the same topic in an effort to elucidate and clarify his answers.

   [19] Court Book filed 3 May 2013, pp.131-139, at paras.27-47.

8. The Applicant was questioned about his involvement with the

   
   

   Congress Party and the reasons why he said he would suffer harm if he returned to India. From both the recording provided by the

   
   

   First Respondent and from the transcript, it is apparent that the Applicant’s answers were vague and, to an extent, non-responsive.

   
   

   After considerable questioning, the Tribunal member said: 

   I’m having a little bit of difficulty understanding your evidence and in particular understanding the chronological flow of events so what happened first, what happened next, where you were

   
   

   et cetra, I’m having some difficulty understanding your evidence.[20]

   [20] Affidavit of Laura Morfuni filed 7 February 2014, Annexure “LM-1”, p.22 at lines 38-41.

9. It is not apparent that the Tribunal member’s difficulty in understanding the Applicant was due to poor interpretation, but rather that the Applicant appeared to have difficulty in giving consistent answers or recalling a chain of events in chronological order. I am satisfied that it is in this context that the use of the words ‘fail to understand’ should be considered.

10. With respect to the relocation issue, having found that the Applicant did not meet the criteria for refugee status under s.36(2)(a) of the Act, or the complementary protections criteria under s.36(2)(aa) of the Act, it was not, in fact, necessary for the Tribunal to consider whether the Applicant could reasonably be expected to relocate to another area of India.

11. The Applicant submitted that it was not reasonable for him to be expected to relocate. The Tribunal set out the basis on which it might be reasonable for the Applicant to relocate and the Applicant’s reasons why he considered it was not reasonable for him to do so.[21]

    
    

    The Tribunal then reached certain conclusions after considering those matters.[22] In doing so, I am not satisfied that the Tribunal failed to apply the appropriate test. As Hayne J stated in Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 121 ALD 466:

    [w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.[23]

    [21] Court Book filed 3 May 2013, p.150 at paras.86-87.

    [22] Ibid, p.151 at paras.87-88.

    [23] (2011) 121 ALD 466 at para.21. See also SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

1. I am satisfied that the Tribunal did turn its mind to, and consider, those circumstances in reaching its conclusions. The First Respondent, in oral submissions, indicated clearly, and outlined, the role of the Court in these proceedings: it is not to reconsider the merits of the Tribunal’s findings, but to ascertain if there has been a jurisdictional error.

2. I am not satisfied on the material before the Court that there has been such an error, and the application is, therefore, dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  28 February 2014