MZZOF v Minister for Immigration - [2014] FCCA 2586

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZOF v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2586

Catchwords:
MIGRATION – Whether applicant was denied procedural fairness because of the way in which the Tribunal hearing was conducted and the failure to inform the applicant that a claim he made was not accepted – whether Tribunal complied with s.425 of the Act because of the manner in which the member put questions to the applicant and his non-responsiveness – whether Tribunal complied with s.424A of the Act – no judicial error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A(2), 36(2)(a), 36(2)(aa), 425, 414, 424A, 424AA, 424A(3), 424AA(2)(i), 424A(1), 424AA(b)(ii), 424(3)(b)

SZSEI v Minister for Immigration and Border Protection [2014] FCA 465
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723
SZMCD v Minister for Immigration and Citizenship (2009) FCR 415
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24

Applicant:

MZZOF

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1089 of 2013

Judgment of:

Judge Jones

Hearing date:

11 July 2014

Date of Last Submission:

11 July 2014

Delivered at:

Melbourne

Delivered on:

11 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Langmead

Solicitors for the Applicant:

Patrick Cash & Associates

Counsel for the Respondent:

Mr Wood

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

The Application filed on 16 July 2013 is dismissed.
The applicant pay the respondent’s costs in the amount of $6,464.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1089 of 2013

MZZOF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 16 July 2013 the applicant, a citizen of Sri Lanka, is seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”), dated 12 November 2012 not to grant the applicant a Protection (Class XA) visa (“the visa”).

Background

The applicant entered Australia as an unauthorised maritime arrival on 17 May 2012. On 22 August 2012, the applicant received notification of a decision under s.46A(2) of the Migration Act 1958 (Cth) (the “Act”) to allow him to lodge a Protection visa application, which he did on the same day.
In a statutory declaration dated 22 August 2012, the applicant claimed that he is a Tamil and that his aunt was detained and tortured by the Central Investigation Department (CID) in April 2009 and that the CID had subsequently questioned him about her. The CID suspected him and his aunt of cooking for the Liberation Tigers of Tamil Eelam (LTTE) and giving them money as a result of their regular visits to a LTTE controlled area and the CID detained him a further two times before he escaped to Qatar. On his return to Sri Lanka in 2011, the applicant claimed that he was again detained twice after that and that the CID had come to his house several times (CB28-33).

Grounds of Judicial Review

The applicant’s amended grounds of judicial review are:
1.   The Second respondent fell into jurisdictional error by denying the applicant procedural fairness.
Particulars
a.The Tribunal did not advise the applicant that his claim that his aunt was taken by the CID for interrogation and detained for a year and a half was not accepted and invite a response.
b.The Tribunal did not advise the applicant that his claim of detention by the CID was not accepted in the context of the Tribunal having received his clarification of the time of day and responding “Okay” and then not pursuing the matter but moving to a new line of questioning.
c.The Tribunal put questions and statements to the applicant in an unfair manner.
d.The Tribunal did not seek a response or give the applicant an opportunity to respond, or to respond properly.
2. The Tribunal fell into jurisdictional error in that there were defects in interpreting in the course of the Tribunal’s hearing which constituted a failure to comply with section 425 of the Migration Act.
Particulars
a.The evidence of the applicant was at times unresponsive and exhibited apparent confusion about what the Tribunal was pursuing.
b.There was lack of comprehension or confusion by the interpreter and/or the applicant of the statements being made, and lack of awareness or understanding of the implied need for a response by the applicant.
c.The Tribunal repeatedly made long and complex statements without pausing for translation which impeded the applicant’s ability to give evidence by affection his (and the interpreter’s) understanding of the statements.
3. The Tribunal fell into jurisdictional error in that contrary to Section 424AA(2)(i) of the Migration Act the Tribunal did not explain the reasons why information is relevant and the consequences of the information being relied upon.
Particulars
The Tribunal did not explain to the applicant the consequences of the information being relied on namely that the Tribunal may not accept the claim that the aunt was taken by the CID and detained for a year and a half.
4.   The Tribunal fell into jurisdictional error in that contrary to s.424AA(b)(ii) the Tribunal failed to orally invite the applicant to comment on or respond to information, contrary to s424AA(b)(ii).
5.   The Tribunal fell into jurisdictional error in that contrary to s.424AA(b)(iii) the Tribunal failed to advise the applicant that he could seek additional time to comment on or respond to information.
6.   The Tribunal fell into jurisdictional error in that it asked the wrong questions.

Particulars
It should have applied the “what if I am wrong” test to the claims of the applicant, on which there was a substantial amount of evidence, that the applicant’s aunt had been take and detained, to establish that there was a real and substantial basis for his fear of persecution.
7. The conclusion of the Tribunal that the Aunt had not been taken for questioning and detained was so unreasonable that no reasonable decision maker would have so concluded.

Tribunal Proceedings and Decision

On 16 November 2012, the applicant applied to the Tribunal to review the delegate’s decision (CB137-142). On 24 December 2012, the Tribunal invited the applicant to a hearing (CB149).
In his statutory declaration attached to his application for a protection visa (CB28 - 33), the applicant claimed:
·he was a Tamil and his religion was Hindu;
·his aunt with whom he had gone fishing every six months since 2006 in a LTTE controlled area, was detained by the CID in April 2009 for a year and a half, that she was interrogated and severely tortured;
·he was detained twice by the CID in June 2009. He was interrogated about why he was helping the LTTE, cooking for them and giving them money. He said he was detained for two days the first time, and for one day the second time. Both times his family had to pay money for his release;
·his aunt was released after his family paid a large sum of money to the CID;
·after twice being detained, he escaped and went to work in Qatar;
·he came back to Sri Lanka on 1 August 2011, because his visa had expired;
·about a month after returning to Sri Lanka, the CID came to his home but he was not living there. The CID told his mother that when he came back home he needed to report to the local police station in Uddapu. He did not report to the local police station in Uddapu;
·after the CID came to his house at the end of September 2011, for a second time, he moved away to stay with his sister who lived in Kottu area. He then worked at a prawn farm in Punapetti;
·he left Sri Lanka at the end of April 2012 to avoid further persecution by the CID;
·in June 2012, he was told by his mother that the CID had come to her house twice that month looking for him.
He stated he feared that, if he returned to Sri Lanka, the CID would take him, detain and torture him and accuse him of being part of and supporting the LTTE. He said that he would not be protected by his country because the CID are part of the Sri Lankan government. He said he could not relocate to live anywhere in Sri Lanka.
By submission to the Tribunal dated 15 February 2013 (CB156-184), the applicant claimed to fear persecution on the basis of:
·his Tamil ethnicity;
·his religion;
·imputed political opinion as a supporter of the LTTE;
·membership of particular social groups:- “failed asylum seekers”, “Tamil fisherman with a history of frequent travel to an area of significant LTTE presence and/or recruitment”, “Tamil fisherman” and “family member of a suspected LTTE supporter”.
The applicant attended the hearing with his migration agent and was assisted by an interpreter in the Tamil and English languages.
In its decision record the Tribunal noted that (CB199 [25]):
[25] The Tribunal took evidence from the applicant regarding his work experiences in Sri Lanka, the claimed detention of his aunt in 2009 on suspicions of assisting the LLTE, the authorities search for him following his aunt’s arrest and their interrogation of him and subsequent departure to Qatar. The Tribunal also spoke to the applicant about his experiences in Sri Lanka following his return from Qatar including the enquiries made about him by the CID, his aunt’s release from detention and subsequent charges and court case and his departure from Sri Lanka. The Tribunal has referred to the applicant’s evidence at the hearing below.
The Tribunal then proceeded to set out its findings and reasons. The Tribunal firstly found that it (CB200 [29]):
… does not accept the applicant’s claim that his aunt was taken by the CID for investigation and that she was subsequently detained for a year and a half or that the authorities started looking for the applicant because used to go with his aunt to Vanni to work and they were accusing him of cooking for the LTTE.
The Tribunal stated that it did not accept the applicant’s claims regarding the alleged problems he and his aunt experienced at the hands of the authorities or at the hands of the CID based on inconsistencies and discrepancies in the applicant’s evidence which led the Tribunal to find that his claims were not credible (CB200 [29]). The Tribunal set out in some detail the inconsistencies and discrepancies in the applicant’s evidence regarding these claims (CB200 - 202 [30] - [41]).
The Tribunal stated that, “given the numerous and various inconsistencies and discrepancies in the applicant’s evidence” (CB201 [35]) it did not accept the applicant’s claims:
· that he was detained and questioned by the CID on two occasions (CB201 [35]); and
· that he was of any interest to the CID prior to his departure to Qatar, during his stay in Qatar and on his return to Sri Lanka from Qatar (CB202 [39] - [41]).
The Tribunal concluded (CB203 [43]):
[43] For the reasons provided above, the Tribunal does not accept that the applicant’s aunt was interrogated, detained and tortured by the Sri Lankan authorities as a suspected supporter of the LLTE. It therefore follows the Tribunal does not accept that the applicant was of any interest to the CID or any other authorities because of his aunt. The Tribunal finds that the applicant has not experienced any problems in the past in Sri Lanka at the hands of the authorities and as such, it does not accept that if he returns he will face harm because he refused to report to the police when they requested. Nor does the Tribunal accept that either the applicant or any members of his family, including his aunt, were suspected or accused of supporting the LTTE and that he will face a real chance of serious harm for reasons of his membership of a particular social group of family member of a suspected LTTE supporter.
The Tribunal did not accept:
·    the applicant had a subjective fear of persecution for a reason of his Tamil race (CB203 [44]);
·    based on country information, the applicant would face persecution for reasons of his membership of the group of Tamil fisherman with a history of frequent travel to an area of significant LTTE presence or Tamil fisherman more generally (CB205 [48]);
·    based on country information, the applicant would face persecution for reasons of his membership of the group of failed asylum seekers unless he was were also perceived to be actively supporting the LTTE opposed to the current Sri Lankan government. As the Tribunal had already found that the applicant did not have such a profile, it did not accept he would face a real chance of serious harm for this reason (CB205 [49] - [50]);
·    based on country information, the applicant would face persecution for reasons of his legal departure from Sri Lanka (CB206 [51]);
·    as the Tribunal did not accept the applicant’s claims regarding his experiences in Sri Lanka or his profile, that the applicant’s profile was likely to result in violent interrogation upon his return to Sri Lanka (CB206 [53]).
The Tribunal concluded:
[54] Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the authorities because of an imputed political opinion of support for the LTTE, his Tamil race, his Hindu religion or his membership of the particular social groups failed asylum seekers, Tamil fisherman with a history of frequent travel to an area of significant LTEE presence and/or recruitment, Tamil fisherman and family member of a suspected LTTE supporter, because of his illegal departure from Sri Lanka of for any other reason. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
The Tribunal stated, it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee Convention. Consequently, the applicant did not satisfy the criteria set out in s.36(2)(a) of the Act.
The Tribunal considered whether the applicant met the Complementary Protection criteria:s.36(2)(aa) of the Act. It found that, based on its findings in relation to the applicants claims, it did not accept that there was a real risk the applicant would suffer significant harm on his return to Sri Lanka. Based on country information, the Tribunal accepted that the applicant would likely face arrest on charges of leaving the country illegally but that he would be dealt with by way of a fine (CB207 - 208 [57] - [61]). The Tribunal stated it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Application for judicial review

Applicant’s submissions

The applicant’s grounds of judicial review, as developed by the applicant in his oral submissions, appear to the Court to be largely dependent on the applicant’s submissions in relation to Ground 2. Consequently, I will deal with Ground 2 first.

Ground 2 – s.425

Section 425 of the Act imposes an objective requirement for the Tribunal to provide a “real and meaningful” invitation. The quality of a hearing must provide an applicant with an adequate opportunity to give evidence and present arguments concerning the issues arising in relation to the decision under review: SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [115] (SZSEI).
This ground of judicial review is based on the applicant’s submission that the transcript in English of the Tribunal hearing discloses that:
·the applicant was non-responsive;
·the applicant and/or the interpreter displayed a lack of comprehension and awareness, as well as confusion about the statements being made by the Tribunal; and
·the long and complex statements by the Tribunal member, without allowing a pause for translation, impeded the applicant’s ability to give evidence and the interpreter’s understanding of the statements.
The applicant submits that the transcript demonstrated a lack of responsiveness and lack of understanding by the applicant of the matters put to him by the Tribunal member relating to his claims that both he and his aunt were detained by the CID. He submits the lack of responsiveness and awareness is of the type found by Kenny J in Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 (Perera) and the Full Court in SZSEI, so as to constitute a failure to accord the applicant a fair hearing. Consequently, it is submitted, the Tribunal breached s.425 of the Act and fell into jurisdictional error.
The decision of Kenny J in Perera was made before the enactment of s.425 of the Act. It is, however, treated as a seminal authority and one which is equally applicable to s.425: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29]-[32].
It is not every departure from the standard of interpretation that prevents an application for refugee status from giving evidence to the Tribunal. The departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision Perera at [23]-[24].
In Perera the Court considered factors which may lead a reviewing Court to conclude that the transcript of a Tribunal hearing discloses such incompetence such that the applicant was precluded from giving his evidence. Her Honour stated (at [23]):
[41] What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick at 936-937; United States v Urena (10th Cir 1994) 27 F 3d 1487 at 1492; Acewicz v Immigration and Naturalization Service at 1062.
[42] Whilst it is possible to divine the general thrust of the applicant's case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the Tribunal. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera's unchallenged account of himself as an attorney-at-law in Colombo. His evidence, as interpreted and transcribed, lacks the responsiveness and coherence of the well-educated person that he apparently is. It may be that Mr Perera's unresponsiveness and lack of coherence are indicative of a lack of candour on his part. It is, however, difficult to fathom what the applicant, an educated person, could hope to gain from an unresponsive approach, particularly having regard to the nature of his application for refugee status.

Kenny J turned to consider extracts from the transcript of the Tribunal hearing which the applicant submitted demonstrated the interpretation was incompetent. At [14], her Honour stated:
[14] A significant number of Mr Perera's answers failed to respond specifically to the questions asked of him by the Tribunal. Some answers lacked coherence. Though the general thrust of his evidence might be discerned, there would appear to have been some significant confusion in the mind of the interpreter or Mr Perera (or both) as to what was being asked.
At p.16, her Honour stated:
[16] In both the passages set out above, Mr Perera's answers are frequently unresponsive to the specific questions asked and, at times, virtually incoherent. Either the interpreter or Mr Perera (or both of them) failed adequately to understand what it was that the Tribunal was asking. Mr Perera's references to the status of the “JVP” parliamentarian contain inconsistencies which seem to arise from inadequate communication and which are never explained. In the first passage, indeed, the failure to achieve any meaningful communication apparently led the Tribunal to give up its inquiry and to rely, instead, on Mr Perera's answers to the last two blanket questions. In view of the confusion attending the previous series of specific questions and answers, however, the significance of the two answers must be doubtful. (The three passages to which I have referred are not the only examples of communication difficulties: others appear at ts 18, 19, 20, 24, 26-27 and 29.)
It is to be noted that the transcript in this case was the English Transcript and no comparator transcript was before the Court. However, her Honour proceeded on the basis that the interpreter of the applicant failed to understand what the Tribunal was asking.
In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 (SZRMQ), the Full Court considered the common law requirements of procedural fairness (as their Honours were considering an appeal from an Independent Merits Reviewer’s decision). Allsop CJ said:
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.
10How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health [2002] FCA 40; 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
11That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.
In SZSEI, Griffiths J held that the numerous mistranslations, non-translations and unprompted interactions by the interpreter meant the process required by s.425 (coupled with the obligation imposed by s.414 to conduct a review) miscarried and involved jurisdictional error (at [115]).
Adopting the approach articulated in the authorities, referred to in the proceeding paragraphs, it is first appropriate to consider the hearing process as a whole. For this purpose reference will be made to a transcript of proceedings filed by the applicant.[1]
[1] Annexure “PDSM-1” to Affidavit of Peter David Sidney Mecoles, sworn 1 July 2014.
At the commencement of the hearing, the Tribunal member explained the role of the interpreter and stated to the applicant:
“Please let me know now or at any stage during the hearing if you are having any difficulty understanding the interpreter. The interpreter will also let me know if they are having trouble understanding you. I suggest we speak in short sentences, stopping frequently so that the interpreter does not have to memorise too much.”
There is no dispute that the Tribunal member commenced the proceedings asking the applicant questions which were short and direct and that they were answered by the applicant in a responsive way.
The applicant has focused on particular points during the hearing which he alleges he gave non-responsive answers and which exhibit confusion on his part. These commence at the point in the transcript when the Tribunal member sets out her concerns regarding the applicant’s claims about his aunt and his detention by the CID (CB201 [34]). Set out below is the transcript in English at the point the Tribunal member commences expressing her concerns. It is to be noted that the inclusion of “//” in bold in the transcript extract are the points at which the applicant’s instructing solicitor has deposed, having listened to the tape recording of the hearing, are pauses in the Tribunal member’s questions to enable the interpreter to translate.[2] Also the inclusion of the word “okay” is where the applicant’s instructing solicitor deposes the Tribunal said “okay” but this was not recorded.[3]
[2] Ibid at [5], [8] – [10].
[3] Ibid at [7].
The transcript extract is from T.22, line 37 to T.26, line 45:
MS MULING: There appears to be a number of inconsistencies in what you’ve told me today and what you previously claimed in your statutory declaration which raises some concern about the claims.//Firstly, after your aunt’s detention you said about seven days later – six or seven days after that you were taken by the CID because they told you that they wanted to ask you a few questions.//You said that you were taken in the evening and released/the next day at night and that your mother paid 50.000 rupees to have you released. (T.22, line 40)
However, in your statement it says that the first time you were detained you were detained for two days and that you didn’t know how much your mother paid for your release.//Also, looking at the decision of the Delegate which you provided me a copy of, it says here that you were asked when you were held in detention and you responded it was night time and you couldn’t recognise where you were, and that you were unable to see anything but today you’ve told me it was a house and that it was 45 minutes drive in the jungle. (T.23, line 5)
So you’ve provided some different detail today, first of all about where you were detained and also about the ransom or the money that your – the bribe your mother paid for your release which you’ve previously claimed you didn’t have any knowledge of, of how much it was.// This does raise some concerns about what you’ve told me today, whether it actually happened.// (T.23, line 10)
INTERPRETER: Yes, I told them that I was playing cricket and it was about 6 o’clock, and that’s when they came and took me, and after (indistinct) it’s obviously – it’s night time. It was dark. (T.23, line 15)
MS MULING: Okay The other thing which is quite significant is that in your statement you claim that the CID came and took you again around 27 June 2009 and detained you for one day. And again your family paid for your release, however today I asked you if anything happened after this first period of detention that you told me about, when you were taken from playing cricket, that you said they came looking for you but you weren’t there and I asked if you had any further contact with them before you went to Qatar, and you said not personally, you weren’t taken again. (T.23, line 20)
You didn’t talk about this second period of detention, which raises some doubts about this. Is there anything you’d like to say? Because clearly you’ve talked about it in your statement, about this second period of detention where you were asked questions about your aunt yet you didn’t tell me about that today, which does raise some concerns about this claim. (T.23, line 30)
INTERPRETER: (indistinct) I want to make it (indistinct) I want to mention that, so I did mention. (T.23, line 35)
MS MULING: But it’s quite important to mention that it’s – it doesn’t make sense to me why you wouldn’t mention that because it supports or it’s significant in terms of what’s happened to you, that you were taken and detained a second time prior to your departure to Qatar. So I don’t understand why you wouldn’t want to mention that, particularly when you had mentioned it in your statement. The other thing is when you came back from Qatar you told me today that you came home and you talked about this quite a bit, because I want to make sure the sequences of events, but you returned home, left your stuff with your mother, went to a party and came back the next day, and your mother told you that the CID had come and made inquiries, and came and searched the house looking for you. (T.23, line 40)
That’s what you’ve told me today however in your statement you claim, “On 1 August 2011, I came back to Sri Lanka because my working visa was expired and about one month after returning to Sri Lanka from Qatar – around the beginning of September 2011 – the CID came to my house for further interrogation. Unfortunately I wasn’t home.” So there’s a significant differences in what you’ve claimed previously and what you’ve told me today about this visit from the authorities. (T.24, line 5)
INTERPRETER: I did not say it was (indistinct) month. I only told them this one day – one month. (T.24, line 12)
MS MULING: I’m looking at your statement, your statutory declaration, which was attached to your protection visa and at paragraph 16 it says, “About one month after returning at the beginning of September 2011.”
INTERPRETER: Which one? The document (indistinct)(T.24, line 20)
MS MULING: It’s the statement that was attached to your protection visa application which outlines your claims for protection and which has been – it would have been signed by you as well as being true and correct. It’s the statutory declaration that was made by you. I can show you. There’s an interpreter’s declaration confirming that it was interpreted to you and there’s your signature, the interpreter’s signature and the adviser who prepared it. So
That’s your statutory declaration, that’s what I’m referring to.
Also, we talked about your aunt’s release and you said that your aunt told you that she paid a bribe to the police, and I asked you who provided the money for the bribe and you said your uncle – your aunt’s husband – and no-one else, it was just him. However, in your statutory declaration attached to your protection visa application at paragraph 13, you claim – it’s stated that, “The CID released my aunt after her and my uncle had paid a large sum of money.” Again there’s another discrepancy in what you’ve told me today and what you’ve claimed earlier that does raise some concerns about the credibility of these claims. (T.24, line 30)
INTERPRETER: The money was raised by both families, but the one who handed the money is my uncle. He’s the one who went and paid the money. (T.24, line 40)
MS MULING: Okay. The other thing is there’s been no mention before today about your aunt having been taken again for questioning, whether it had been for a few hours, no further interrogation or that there’s an ongoing case against here. (T.24, line 40)
INTERPRETER: Yes, I did not mention. (T.25, line 1)
MS MULING: Yes. The reason I raise that is because of the fact that this is only being raised now, very late in the process – you’ve had a number of interviews, you’ve provided your stat dec, there has been submissions provided in support of you, the fact that it’s been raised just now may raise some doubts about this claim.//As I said you’ve provided a copy of the delegate’s decision and just looking at the discussion that there is about the time that you spent working at the bund it says that you were living at your sister’s house during this time, that you would go home every second day to your sister’s house and it would take you 30 minutes by bicycle from the prawn farm. However today you’ve said that you stayed at the bund, you went home once every fortnight or three weeks for a shower and to get clothes. I asked if you were staying with your sister at all during this time and you said that you only stayed with your sister prior to leaving the country, so again there’s another discrepancy in your evidence regarding what you were doing during that time you were working at the bund prior to your departure from Sri Lanka.// (T.25, line 5)
INTERPRETER: It takes about 30 minutes to go either my house or my sister’s house, so sometimes I go to my parent’s house and sometimes I’d go to my sister’s house.
MS MULING: The other thing I’d like to raise is, I mean, you claim that the CID were going – they’d gone to your house four or five times after that – they’d searched for you once you had returned from Qatar. Given that they were going to your house looking for you why would you go there every fortnight or three weeks even if it was to shower and get some clothes if there was a chance the CID might turn up during that time? Why would you go so frequently over six months period to your home if the police or the CID were looking for you? (T.25, line 25)
INTERPRETER: Just to visit my parents and to know what is happening and what the situation is like. (T.25, line 35)
MS MULING: What I would put to you is that the fact that you were going there so frequently would suggest that there wasn’t this attention on you from the CID because if you were living away from home trying to avoid being captured by the CID or taken for questioning or being detained it seems implausible that you would return home so frequently during that period if you’re claiming they’re teaming up looking for you. (T.25, line 37)
INTERPRETER: I was not going there very frequently. I used to go there like once every fortnight or once every three weeks, even once a month.
(T.25, line 45)
MS MULING: The other thing that I have some difficulty with is the fact that you’ve claimed you were able to depart Sri Lanka after your aunt’s detention and after you’d been taken and detained by the authorities without any difficulties although you claim not that you were questioned. There’s not been any mention about this hour and a half questioning up until today. Still you were allowed to leave the country and then you returned without any problems through the airport and then you’re telling me the CID turned up that very day at your home to look for you. If the CID had that interest in you, of what you’re claiming, I have some concern that you would be able to go in and out of Sri Lanka without any problems given that there are checks and people who are of interest to the authorities do get pulled up at the airport, so the fact that you left and came back without any real problems doesn’t suggest that you will have been targeted or were if interest to the authorities.//
The last thing I want to raise is just in relation to what you’ve told me today about your decision to leave Sri Lanka and your sister making the arrangements for you to leave. Again I’m looking at the decision of the delegate, which you’ve provided me a copy of, and there’s discussion here about how you confirmed in the interview with the delegate that you had been out playing ball games and that when you returned home a relation told you a boat was going to Australia that very day and asked if you’d like to get on it. That’s not really consistent with what you’ve told me today which is that you made a conscious decision that you had to leave and your sister made the arrangements, she made the inquiries regarding the boat journey.// (T.26, line 1)
INTERPRETER: Yes, it is true my sister she’s the one who asked me do I want to go. (T.26, line 27)
MS MULING: It was your sister who told you about the boat that was leaving? (T.26, line 30)
INTERPRETER: Yes.
MS MULING: Okay. Were you told on that day that there was a boat leaving and if you wanted to go like it says in the decision of the delegate? (T.26, line 35)
INTERPRETER: (indistinct)
MS MULING: Were you told, as it says here, that you were playing games, you went home and your sister told you a boat was going and that’s when you decided to go? (T.26, line 40)
INTERPRETER: Yes.
The applicant submits at [1] - [5] of its submission:
1. It has been acknowledged by the courts that defects in interpreting in the course of the Tribunal’s hearing may constitute a failure to comply with section 425 Tahavoori v Minister for Immigration and Multicultural Affairs [2001] FCA 1245 at [19] and [20]; Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [21].
2.   In Tahavoori, Emmett J said at [20]:
“There are circumstances in which a real question may arise as to whether an applicant is given a fair opportunity of giving evidence and presenting arguments relating to the issues arising in the decision under review. Doubts would arise where evidence given through an interpreter is repeatedly unresponsive to the questions asked by the Tribunal, is incoherent and inexplicably inconsistent with other evidence and where exchanges between the interpreter and the Tribunal demonstrate confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry - see Perera at paragraph [42]”.
3.   In Perera Kenny J said:
“[14] ……A significant number of Mr Perera's answers failed to respond specifically to the questions asked of him by the Tribunal. Some answers lacked coherence. Though the general thrust of his evidence might be discerned, there would appear to have been some significant confusion in the mind of the interpreter or Mr Perera (or both) as to what was being asked.
….. In both the passages set out above, Mr Perera's answers are frequently unresponsive to the specific questions asked and, at times, virtually incoherent. Either the interpreter or Mr Perera (or both of them) failed adequately to understand what it was that the Tribunal was asking……
………
[42] Whilst it is possible to divine the general thrust of the applicant's case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the Tribunal. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry…….”
4.    It has also been recognized that asking a number of unduly long or complex questions may impede an applicant’s ability to give evidence Tobasi v Minister for Immigration & Multicultural Affairs [2002] FCA 1050 at [60].
5.   The evidence of the applicant was at times unresponsive and apparent confusion about what the Tribunal was pursuing.

The applicant relies on the following as evidence of non-responses and confusion.
The first is the Tribunal member’s statement commencing T.22, line 40 to T.23, line 14. The applicant submits that even with pauses, it is a very long statement on fairly detailed matters. It is argued that asking a number of unduly long or complex questions may impede the applicant’s ability to give evidence. The applicant submits that, the fact his only response is to confirm he was playing cricket and that it was about 6.00pm and it was dark, is evidence that the applicant was unresponsive and demonstrates the interpretation was not sufficient for him to understand what was being said to him.
The next instance of non-responsiveness is said to occur at T.24, line 45.
The applicant’s next concern is the statement by the Tribunal member made at T.25, line 5 to 20. In this statement the Tribunal member puts to the applicant the discrepancy between the evidence given to the delegate that he would go every second day to his sister’s house, travelling by bicycle for 30 minutes, when he was working at the Bund and the evidence he gave at the hearing that he went home once every fortnight and that he only stayed with his sister before leaving the country.
The next extract from the transcript, the applicant relies on, is at T.26, line 1 to 14, where the Tribunal member expresses two concerns. The first is that the applicant has only, during the hearing, mentioned being detained and questioned on return to Sri Lanka. The second was the fact that the applicant was able to return from Qatar to Sri Lanka without difficulty. This suggests the member said he had not been targeted by or was of interest to the authorities.
There is a pause to allow translation and then, from line 15 to 25 on T.26, the Tribunal member puts to the applicant an inconsistency between his evidence at the hearing, that his sister arranged the boat journey, and his evidence to the delegate, that he had come home after playing cricket, and a relation told him there was a boat going to Australia that day.
The applicant then responds (prompted by a series of follow up questions by the Tribunal member) to the effect that he came home after playing games and his sister told him about the boat.

Minister’s Submissions

The Minister submits that the applicant has failed to clarify whether the claim of jurisdictional error (under Ground 2) arises from alleged defects in translation or long and complex statements made by the Tribunal member during the hearing. The Minister submits there are two distinct points.
With respect to the translation, the Minister submits that the failure of the applicant to provide a “comparator” transcript of what was said in Tamil in translation of the Tribunal’s questions has the effect, as Finklestein J observed in VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 (VWFY) at [25] that:
[25] ….. there is a real danger of error when a judge is required to reach a conclusion on a matter such as this based only on the transcript and a tape recording of the hearing, but without the benefit of a correct translation. In such circumstances it is difficult to be certain whether the interpreter was incompetent or inaccurate in conveying the tribunal’s questions or the appellant’s answers to such a degree that the appellant’s answers wrongly appeared evasive and non-responsive or whether the appellant did, in fact, give evasive and non-responsive answers which were accurately translated by the interpreter. It must be remembered in this regard that interpretation is "”an inherently human endeavour which often takes place in less than ideal circumstances": R v Tran [1994] 2 SCR 951, 987.
Reference is also made to the decision of the Federal Court in SZSEI and Tobasi, in which a “comparator” transcript was provided. The Minister submits that the applicant fails to identify by use of an appropriate translation, where there are defects in translation. Consequently, it is not safe for the Court to draw inferences that the translation was defective.
The Minister acknowledges that in VWFY, notwithstanding the absence of a “comparator” transcript, his Honour found that the appellant did not receive a fair hearing. Finklestein J stated at [27]:
[27] My general impression is that no one error or deficiency is so severe as to show that the interpreter or the interpretation was of such poor quality that the appellant was effectively deprived of his right to appear. But, when one steps back and looks at the hearing as a whole and asks whether the appellant received a fair hearing, I think the answer is that he did not. The combination of insufficient and incomplete translations, as well as the clear factual errors on the part of the interpreter, which the appellant was fortunately able to correct in some instances, suggests that the appellant had no real opportunity to express himself and fully answer questions put to him by the tribunal. This fails to achieve the tribunal’s objective of providing a fair and just hearing.
The Minister submits that, even if it is accepted that the applicant does not respond or does not give a fulsome response to a proposition, the conclusion that the applicant did not understand the proposition, is not necessarily open. It maybe, it is submitted, the applicant had no answer to give.
The Minister relies on principals which emerge from the decision of Griffith J in SZSEI:[4]
[19] In SZSEI, Griffiths J set out the following principals about s.425 of the Migration Act in cases of mistranslation, including:
a.Translation is not exact, and perfection cannot reasonably be expected; SZSEI at [79].
b.It is necessary to focus on the process that is afforded to an applicant to enable him or her to give evidence.
c.It is necessary to distinguish between the cases where mistranslation or non-translation is frequent or continuous, as opposed to where the errors are intermittent: SZSEI at [78].
d.Any alleged mistranslation or non-translations must be considered both individually and cumulatively: SZSEI at [80]. This requires a qualitative assessment of the conduct of the hearing before the Tribunal as a whole, SZSEI at [81].
[4] Minister’s Outline of Submissions at [19].
The Minister submits that the real complaint of the applicant appears to be an unduly long and complex questions put by the Tribunal member. The Minister says this complaint must be considered in the following context:
·the questions relied on involved putting propositions by the Tribunal to the applicant with respect to concerns it had with the applicant’s evidence;
·such proposition must necessarily be longer than the series of short questions preceding which elicited direct evidence from the applicant;
·the interpreter only said a proposition was “too long” once and not in respect of questions or statements which the applicant has focused on; and
·looking at the transcript as a whole, it does not appear the applicant was deprived of his right.

Consideration

I am not satisfied that there were incidents of mistranslation. Firstly, I do not have before me a comparative transcript by an independent registered interpreter in Tamil language of the communication between the interpreter and the applicant in Tamil. Secondly, for the reasons set out below, I reject the applicant’s submissions that his answers evinced a level of non-responsive and exhibited confusion such that the applicant was not given an opportunity to give evidence.
The first matter of concern put by the Tribunal member to the applicant (T.22 to T.23), concerned the discrepancies in his evidence regarding his claim he had been detained. Specifically, how long he had been detained (overnight or for two days) and the time of day it occurred (night time when he couldn’t see where he was) or after cricket (when he was driven through the jungle).
The applicant clearly responds to the second discrepancy identified but not the first.
Ideally, the Tribunal member ought to have paused after identifying the first concern, and asked the applicant directly to respond to this. However, the Tribunal member did pause to enable a translation and it may be, as the Minister submits, that the applicant’s simply decided he did not want to respond.
I do not understand the applicant’s concern with the proposition put by the member, that until the hearing, the applicant had not given evidence about his aunt being taken for interrogation again (T.24, line 45). This is because the applicant is responsive acknowledging he did not mention it (T.25, line 1).
With respect to the Tribunal’s statement (at T.25, line 5) regarding discrepancies in the applicant’s evidence when he was working at the bund, I agree that the Tribunal member is cumbersome and lengthy. However, infelicity of expression on its own does not warrant a conclusion that the statement was incomprehensible. I note the interpreter did not say the question was too long as he did on other occasions (see T.29, line 24). Neither did the applicant seek to clarify the member’s question as he did on another occasion (see T.21, line 45).
At T.26, line 1, the Tribunal member raised two matters of concern. The first related to the apparent conflict between the applicant’s evidence that he was targeted by the Sri Lankan authorities (for example by detention) and his evidence that he left and returned to Sri Lanka without difficulty. The second, related to apparent discrepancies about who in his family informed him about the boat leaving for Australia. The applicant clearly responds to the second concern raised by the Tribunal.
I am not able to say whether, in relation to the statement about the first issue, which was followed by a pause for translation, the applicant simply chose not to respond.
Notwithstanding this, my impression is that the statement (T.26, line 1 to 15) was convoluted as it raised in the context of the broader concern, a further concern; namely, that the applicant had given evidence during the hearing at odds with earlier evidence. I am satisfied, even with a translation which reasonably conveyed the content of the statement, the applicant would have been confused by the statement. Consequently, I am satisfied that he was not given an opportunity to respond to this concern.
I have identified one point in the transcript of the Tribunal hearing where it appears to me that the Tribunal member’s statement was unduly cumbersome and confusing. This was the Tribunal member’s concern that the applicant’s claims that he was detained (when his aunt was) is not consistent with his evidence that he left and returned to Sri Lanka without difficulty.
Stepping back and considering the hearing as a whole, however I am satisfied that the applicant was given a fair hearing.
He was asked a series of short questions regarding his experience with authorities in Sri Lanka (T.17, line 15 – T.18, line 40) prior to departing for Qatar and after he returned to Sri Lanka. He answers responsively in a way which indicates he clearly knew what he was being asked. Similarly, he was asked short questions, which he dealt with in a responsive way, about his experience at the airport upon departing for and returning from Qatar:
MS MULING: Did you have any difficulties obtaining a passport?
INTERPRETER: No.
MS MULING: What about when you were departing the country, when you were going to Qatar? Did you have any problems leaving Sri Lanka?
INTERPRETER: Yes, they asked me questions at the airport.
MS MULING: What sort of questions?
INTERPRETER: They ask me the reason for my travel and why I’m travelling, and then they asked me whether I was the (indistinct) and running away from the country, and then after these questions they let me go.
MS MULING: How long were you questioned for?
INTERPRETER: About an hour and a half.
MS MULING: When did you come back to Sri Lanka?
INTERPRETER: Eighth month of 2011. Sorry (indistinct) 2011.
MS MULING: When did you come back at this time?
INTERPRETER: Because my visa expired (indistinct) visa.
MS MULING: When you returned did you have any difficulties at the airport?
INTERPRETER: No.
MS MULING: Did you return to your home?
INTERPRETER: Yes, I went to my home straight away.
The applicant was give an opportunity to give evidence about his experience with the authorities at the airport upon departure for Qatar from Sri Lanka and when he arrived back to Sri Lanka. The applicant was also given an opportunity to give evidence regarding his detention by the CID prior to leaving for Qatar.
Moreover, the applicant’s inconsistencies between the claims he was detained and his freedom of movement in and out of Sri Lanka, is only one of many inconsistencies identified in the Tribunals decision recorded; see CB200 [30] - [41].
I am satisfied that there is no jurisdictional error on this basis.

Ground 1 – Procedural Fairness

The applicant submits that the Tribunal failed to advise him that his claim that his aunt was taken by the CID, interrogated and detained for a year and a half was not accepted and invite a response from him. They submit this amounts to a failure to provide procedural fairness.
The applicant relies on the Tribunal’s statement as T.22, line 37 to 45 and T.23, line 1 to 20. Attention is drawn to the fact that, after the applicant’s response at T.23, line 15 to 20, the Tribunal member says “Okay” and then proceeds to deal with another matter thereby “lulling” to believing his account and explanation was accepted.
The difficulty with this argument is that the matters put to the applicant immediately preceding the Tribunal saying “Okay” related to the applicant’s claims he was targeted and detained by the CID, not his claims regarding his aunt’s detention and interrogation.
In putting its concerns, the Tribunal paused 6 times. The effect of these pauses is, it appears to the Court, as follows:
·the applicant is put on notice that the Tribunal member has concerns about inconsistencies in his claims (T.22, line 40);
·the member then refers to the applicant’s evidence that he was taken by the CID for questioning 6 or 7 days after his aunt’s arrest (T.22, line 41 - 43);
·the member then refers to the applicant’s evidence that he was taken in by the CID overnight for interrogation (T.22, line 44);
·the Tribunal refers to the applicant’s evidence that his mother paid a bribe of 50,000 rupees for his release (T.22, line 45);
·the Tribunal then compares this to the applicant’s evidence in his statement that he was detained for 2 days and did not know how much his mother paid (T.23, line 1 to 5);
·the Tribunal then compares the evidence given by the applicant to the delegate and at the hearing, regarding where he was taken for interrogation (T.23, line 5 to 13); and
·finally, the member says this does raise concern about the evidence the applicant gave at the hearing (T.23, line 14).
I agree with the Minister that by way of the pauses the applicant was given an opportunity to respond to the Tribunal’s expressed concern regarding his evidence about his detention. The Tribunal was not required to do more. It is hard to see how the applicant could be “lulled” into believing that his account of his claims of his aunt’s detention were accepted.
The Tribunal’s conclusion that it did not accept his aunt was detained for 18 months and interrogated, was based on its finding that the applicant’s claims were not credible (CB200 at [29]).
The Tribunal member raised with the applicant, its concern about the fact that, until the hearing, he had not stated his aunt was detained for a second time (T.24, line 44). The applicant responds, “Yes, I did not mention”. Critically the Tribunal member goes on to state clearly the fact that this evidence has only been raised now may raise doubts about his claim (T.25, line 5 to 9). There is a pause and no response from the applicant. I am satisfied the applicant was on notice that his claims regarding his aunt and his detention may not be accepted.
I am satisfied there is no jurisdictional error on this ground.

Ground 3 to 5 – s.424AA

It is appropriate to set out the context in which this section appears. In SZMCD v Minister for Immigration and Citizenship (2009) FCR 415 at [56] to [62] the plurality (Moore, Tracey and Foster JJ) considered the statutory context in which s.424AA was located:
[56] Part 7 of the Act is headed: Review of protection visa decisions. Section 411 of the Act, which is found in Div 2 of Pt 7 of the Act, provides that a decision to refuse to grant a protection visa or a decision to cancel such a visa is reviewable by the Tribunal. Protection visas are dealt with in s. 36 of the Act.
[57] Division 4 of Pt 7 of the Act contains detailed provisions as to the way in which the Tribunal is to conduct reviews under Pt 7.
[58] Section 422B, which is the first section appearing in Div 4 of Pt 7, is in the following terms:
422B Exhaustive statement of natural justice hearing rule
(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.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
[59] Sections 424, 424AA and 424A appear in Div 4 in the order in which we have just listed them and they provide as follows:
424Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)A written invitation under subsection (2) must be given to the person:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
424AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
424AInformation and invitation given in writing by Tribunal
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non disclosable information.
[60]Section 424B provides that certain specific matters must be addressed by the Tribunal if it seeks information or responses to information pursuant to either s. 424 or s .424A of the Act. Section 424C stipulates the consequences of a failure on the part of an applicant for a visa to provide information or responses when invited to do so pursuant to s. 424 or s. 424A of the Act. Section 425 requires that an applicant be invited to appear before the Tribunal when it is conducting a review and s. 425A sets out the matters that must be included in any s. 425 notice.
[62] The remaining provisions of Div 4 of Pt 7 of the Act regulate in specific ways the conduct of review hearings. We need not refer to them in detail for present purposes.
[63] Therefore, for the purposes of Tribunal reviews of protection visa decisions, the natural justice hearing rule is embodied exhaustively in the provisions which comprise Div 4 of Pt 7 of the Act. In the present case, as will be already apparent, we are particularly concerned with s .424AA and s.424A.

The plurality then considered the legislative history behind the introduction of s.424A and s.424AA in the Act. Having considered this history, their Honours stated at p.430:
[70] Thus, it is quite clear that:
(a)The setting in which s. 424AA was introduced into the Act included the fact that s. 424A had been in the Act for approximately nine years before the introduction of s. 424AA;
(b)Section 424A was amended in a number of significant respects in order to complement s. 424AA. In particular, the whole of the operation of subs (1) of s .424A was made subject to subs (2A) and subs (3); the language of s. 424A(1)(a) was brought into line with the language of s. 424AA(a); the language of s. 424A(1)(b) was brought into line with the language of s. 424AA(b)(i); the language of s. 424A(1)(c) was brought into line with the language of s. 424AA(b)(ii); and, most importantly of all, subs (2A) was introduced into s. 424A; and

(c)The subject matter of s .424AA(a) is the same as the subject matter of s. 424A(1)(a) and the subject matter of s. 424AA(b)(i) is the same as the subject matter of s. 424A(1)(b). Similarly, the requirement set out in s. 424AA(b)(ii) is the same as that set out in s. 424A(1)(c) with the exception that the former involves an invitation given orally whereas the latter involves a written invitation.

[71] The policy and purpose reflected in s. 424A is that the Tribunal should be compelled:

(a)To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b)To ensure that the visa applicant understands the significance of those matters to the decision under review; and

(c)To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

[72] It is evident that the same policy and purpose underpin s .424AA.

[73] Section 424A is obligatory. Non-compliance with its provisions will very often amount to jurisdictional error. Section 424AA is discretionary. Non-compliance with its provisions will result in the Tribunal not having the benefit of s. 424A(2A). In that event, it must strictly comply with s. 424A.

The plurality held that failure to comply with s.424AA does not constitute jurisdictional error (at [74]). Their Honour’s considered the relationship between s.424A and s.424AA at [80] to [87]:
[80] In our view, the legislature must be taken to have intended that the provisions of s .424A and s .424AA would operate in a coherent and complementary fashion. The two sections should be construed in a manner which gives effect to that intention.
[81] Subject to subs (2A) and subs (3) of s. 424A, the Tribunal is obliged to comply with the requirements of s. 424A(1). No discretion is involved.
[82] Subsection 424A(3) exempts from the obligations imposed upon the Tribunal by s. 424A(1) certain kinds of information. One of the types of information exempted from the requirements of s. 424A(1) is information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.
[83] This type of information is generally called country information (see the discussion as to this in NAMW 140 FCR 572 at [64]–[74]).
[84] Section 424A(2A) provides a further exemption from the requirements of s. 424A(1):
… if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
[85] This latter exemption is not so much an exemption in respect of a type or kind of information (as is the case in respect of the subject matter of subs (3)) but is rather an exemption afforded to the Tribunal if it embarks upon a course of action which engages the provisions of s .424AA and if it complies with the requirements of that section.
[86] The decision to engage the provisions of s. 424AA is discretionary in the sense that the Tribunal is not obliged to take a course which engages those provisions but may do so if it considers such a course of action to be appropriate.
[87] In our view, the Tribunal must always comply with the provisions of s .424A. However, the Tribunal has a choice as to whether it will invoke the provisions of s.424AA.
Consequently, even if the Tribunal failed to comply with s.424AA, the real question for the purpose of judicial review is whether the Tribunal failed to comply with s.424A.
As pointed out in SZMCD the two sections are in substance the same, save that s.424A is concerned with the provision of information in writing and s.424AA orally. Compliance with s.424AA removes the obligation on the Tribunal to comply with s.424A.
In SZMCD the plurality states, citing with approval the decision of SZMMP v Minister for Immigration and Citizenship [2009] FCA 233, that whichever way the Tribunal proceeds, whether under s.424A or s.424AA, the Tribunal does not have to give information which falls within the exception in s.424A(3).
The applicant first claims that the Tribunal failed to comply with s.424AA(2)(i) in that it failed to explain to the applicant why information regarding his aunt’s detention is relevant and the consequences of the information being relied on.
This begs the question, what is the “information” and what is the “reason” why the Tribunal may affirm the decision under review.
The information is the applicant’s claim that his aunt was detained by the CID for one and a half years. The reason the Tribunal did not accept this claim was its conclusion that the applicant’s evidence was not credible having regard to the discrepancies and inconsistencies in his evidence regarding this claim.
If a reason for affirming decision under review is the Tribunal’s disbelief of an applicant’s evidence, arising from inconsistencies therein, that does not constitute “information” contemplated by s.424A(1): SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [1196] :
[18] Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1).
Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”.14 does not encompass the tribunal’s subjective appraisals, thought processes or determinations …
nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
In SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68, the Full Court stated at [27]:
[27] The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of s 424A(1) does not fit easily into the structure of s 424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review. That process must necessarily reflect the prescribed criteria which were relevant in making the original decision. In the present case, the primary question was whether the appellant was a person to whom Australia owed protection obligations. The dates, taken in isolation, said nothing about whether the appellant was such a person. Taken together, they demonstrated that she had made the visa application almost seventeen months after her arrival in Australia. That fact, which was the product of arithmetical calculation, taken in isolation, also said nothing about Australia’s obligations to her. However it was open to the Tribunal to consider the appellant’s conduct and whether it was consistent with her claims. Unexplained delay in applying for a protection visa might well be inconsistent with her claim to fear persecution in China. The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of s 424A(1).
I am satisfied that the information upon which the applicant relies is information he provided to the Tribunal in his statutory declaration attached to his protection visa and his submission to the Tribunal. Consequently, by reason of s.424A(3)(b), the obligations under s.424A did not apply. Even if the Tribunal did not comply with s.424AA(2)(b)(i) it did not fall into jurisdictional error as it was not required to comply with s.424A(1) and (2) because of s.424A(3).
In any event, it is manifestly clear that the reason the Tribunal might affirm the decision under review arose from inferences and conclusions regarding the applicant’s credibility. This does not constitute information within the meaning of s.424A.
The applicant submits, that the Tribunal fell into jurisdictional error by failing to invite the applicant to orally comment on or respond to information contrary to s.424AA(b)(ii): Ground 4.
By the same reasoning set out above, this submission is misconceived and no jurisdictional error is made out.
The applicant submits the Tribunal fell into jurisdictional error in that contrary to s.424AA(b)(ii), the Tribunal failed to advise the applicant he could seek additional time to comment or respond to information.
This submission suffers from the same difficulties identified earlier. That is, the information is “information” provided by the applicant. Accordingly it falls within the exception located in s.424(A)(3).
No jurisdictional error is made out by the applicant on these bases.

Ground 6 and 7

These grounds were not developed in any detail by the applicant.
In oral submissions, Counsel for the applicant stated, regarding the “what if I am wrong test” (Ground 6):
…In relation to the failure to ask the right questions, the significance of a finding about his aunt never having been in detention was so great because, ultimately, that underpinned most of what the tribunal decided and that it would – we say it was such a central point that she should have asked the what if – or applied the, “What if I am wrong” test to that question….
HER HONOUR: I thought the tribunal said that the reason it didn’t believe the applicant’s claims about the aunt being in detention and subject to interrogation and torture was that – was its findings as to the applicant’s credibilities – credibility based on a series of inconsistencies between his statutory declaration and the evidence given at hearing and, because it found that the applicant wasn’t a credible witness, that is could not find that the claim was – did not find that the claim was credible either. So it was its findings as to the applicant’s credibility led the tribunal to find that the applicant’s claim as to the aunt was also not a credible claim…
I concur with the Ministers submission on this point at [27] to [28]:[5]
[27] In determining whether an applicant has well-founded fear of being persecuted for Convention reasons, a Tribunal may sometimes need to consider whether its findings are wrong when it has doubt about those findings. That process is simply an aspect of determining whether an applicant has a well-founded fear.
[28] However, this is not the case in these proceedings. The Tribunal member was not in any doubt as to its conclusions and the key issues. Accordingly, it was not required to ask the question “what if I am wrong”. The obligation does not arise simply because there was a “substantial body of evidence” before the Tribunal, as suggested by the applicant in his particulars. This assertion appears to be little more than a plea for an impermissible review of the merits of the Tribunal’s decision.
[5] Minister Outline of Submissions at [27] to [28]
A fair reading of the Tribunal’s decision record discloses that the Tribunal had no real doubt about its conclusions, based as they were, on its adverse credibility findings regarding the applicant.
There is no jurisdictional error made out on this ground.
The final ground for judicial review is that the Tribunal finding that the aunt had not been detained was unreasonable in a “Wednesbury” sense.
As stated in Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at p.374:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234).”
The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.
The Court does not make that finding in this case.
The Tribunal’s conclusion regarding the applicant’s claim his aunt had been detained and taken for interrogation were based on its adverse findings regarding the applicant’s credibility.
The Minster submits:[6]
[31] The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function. Further, the Tribunal’s conclusion that the applicant was not credible is a finding of fact par excellence. The Tribunal’s findings were open to the Tribunal for the reasons it gives. It is also to be remembered in this regard that the Tribunal’s finding was based on the cumulative effect of the matters to which it had referred.
[32] The Tribunal decision was clearly based on the applicant’s oral evidence given at the hearing, from which the Tribunal found that the applicant was not a credible witness. There is no unreasonableness – in the sense of any want of logicality – in the Tribunal’s reasoning in this regard. The applicant’s description of the Tribunal’s reasoning as being ‘illogical or unreasonable’ should be viewed as merely an emphatic way of expressing disagreement with it.
[6] Minister’s Outline of Submission at [31] to [32].
I am not satisfied the Tribunal findings regarding the applicant’s credibility and consequently its decision not to accept the applicant’s claims illogical or were findings which no reasonable person would have reached.
No jurisdictional error is made out on these grounds.
For reasons set out above, I would dismiss the application filed 16 July 2013 with costs.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date: 11 November 2014