MZZQF v Minister for Immigration and Border Protection
[2016] FCA 1073
•6 September 2016
FEDERAL COURT OF AUSTRALIA
MZZQF v Minister for Immigration and Border Protection [2016] FCA 1073
Appeal from: MZZQF v Minister for Immigration and Anor [2016] FCCA 780 File number(s): VID 385 of 2016 Judge(s): BUCHANAN J Date of judgment: 6 September 2016 Catchwords: MIGRATION – whether alleged errors by interpreter at Refugee Review Tribunal hearing amounted to denial of a proper hearing – whether the appellant was denied procedural fairness – whether the Tribunal failed to make a reasonable enquiry
PRACTICE AND PROCEDURE – whether leave should be granted to rely on grounds of appeal not before the Federal Circuit Court of Australia – whether leave should be granted to rely on evidence not before the FCCA but before the Refugee Review Tribunal
Cases cited: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 Date of hearing: 22 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 59 Counsel for the Appellant: Mr A McBeth Solicitor for the Appellant: Russell Kennedy Lawyers Counsel for the First Respondent: Ms E Latif Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
VID 385 of 2016 BETWEEN: MZZQF
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
BUCHANAN J
DATE OF ORDER:
6 SEPTEMBER 2016
THE COURT ORDERS THAT:
1.The interlocutory application filed on 1 August 2016 be dismissed.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal, including the costs of the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BUCHANAN J:
The appellant is Sri Lankan. He arrived at Christmas Island on 30 April 2012. He was permitted by a delegate of the Minister to apply for a protection visa and made that application on 28 July 2012.
In a statement to support his claim for a protection visa, prepared with the assistance of a migration agent, the appellant made the following assertions. He assisted a friend (Rajah) to get some identification papers in 2005. Rajah was suspected of belonging to the LTTE (Liberation Tigers of Tamil Eelam). In 2008 authorities went to the appellant’s home. His father informed them that the appellant was not there and the father was then arrested, detained for a period of months, charged with forgery (in place of the appellant) and subjected to ongoing criminal proceedings.
A delegate of the Minister did not accept the veracity of important elements in the appellant’s claims and refused the application for a protection visa on 25 September 2012.
The appellant sought a review of the delegate’s decision by the Refugee Review Tribunal (“the RRT”) (whose functions are now performed by the second respondent). Again, the appellant was assisted by a migration agent. Additional material was provided to the RRT, including oral testimony from the appellant on three occasions, oral testimony from the appellant’s brother, a supplementary statement, four additional written submissions and some further documents.
A central element in the case put to the RRT was that the treatment of the appellant’s father, was due to the appellant’s conduct in 2005 and that the appellant himself would be persecuted if returned to Sri Lanka. It is apparent that the RRT was troubled by the lack of detail in the evidence given by the appellant and his brother about the circumstances of the father’s alleged subjection to criminal proceedings in the place of the appellant. Some reference to those issues appears in the following paragraphs of the RRT decision:
56.The applicant was asked a series of questions about the court proceedings he claimed his father was involved in and the documents he had provided to the Tribunal. He didn’t know when his father was last in court. He didn’t ask how long ago he went to court. Asked about why his father still had to go to court the applicant gave evidence he was not available to catch but his father was.
57.I put to the applicant I had difficulty accepting that his father’s court case would still be ongoing. The applicant reiterated his claims that it is because of the applicant that his father was subject of the court proceedings. He said he didn’t know the last time his father went to court because he wasn’t there.
58.It was put to him that in the written submissions made on his behalf by his representative, it was indicated that his father last appeared in September 2012 but he didn’t know when his father was last in court. The advisor submitted that she had taken instruction from the applicant’s brother rather than the applicant about the court details.
59.I asked the applicant if he knew what was happening in the court proceedings he claimed his father was involved in. The applicant said he was not able to talk in detail because his father was in hospital. I commented that his father was able to correspond by email and he spoke to him yesterday. I said it was unclear to me why his father couldn’t instruct his lawyers to provide documents. The applicant said his father was unable to get documents because of immobility and he has been in hospital – this was why he was unable to answer the questions properly. He said he was not a VIP or minister to be able to call by phone and get the documents; he would have to go to them and politely talk to them. He said if it was not for the leg problem he would have given the documents.
60.It was noted the applicant’s representative indicated further documents could be provided and the applicant was asked what further documents he could provide and what he said were the impediments to providing the documents. The applicant said the courts would not give what they were asking for. He indicated his father would have to make an individual trip to get such documentation.
In succeeding passages the RRT explained the further opportunities available to the appellant to provide additional material or information.
It is convenient at this point to mention that an application has been made by the appellant to admit fresh evidence on the appeal. The evidence consists in part of material seeking to establish inadequate interpretation of some of the appellant’s responses about those issues. For the purpose of considering that application I have looked at the material asserting the inaccuracies and inadequacies. I am not satisfied that the RRT misunderstood, or was misled about, the matters referred to in this respect.
I will return to deal further with the application to admit this and other additional evidence. I mention it now to indicate that my ultimate conclusion is there would be no point in admitting the evidence which sought to challenge the adequacy of the interpretation. If the additional material was admitted into evidence it would not have persuaded me that the appellant was deprived of an effective hearing.
Early in the part of the RRT decision headed “Findings and Reasons” where the RRT discussed issues of credibility, the RRT said:
68.In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I acknowledge that the applicant is a young man of limited education and I accept it would be unfair to place undue weight on relatively minor inconsistencies in his evidence over the course of the protection visa application or to expect him to have detailed knowledge of the court process in which he claims his father is involved. I therefore have not placed any adverse weight on what I consider to be relatively minor inconsistencies in the applicant’s evidence. Nevertheless, for all the reasons that follow, I consider that there are fundamental problems with the credibility of the applicant’s claims that he is wanted by the CID on suspicion of supporting and assisting an LTTE cadre and that his father has been involved in ongoing court proceedings because of the applicant’s adverse profile with the Sri Lankan authorities.
Thereafter, the RRT gave detailed reasons for not accepting the central element in the appellant’s claims – that his father had been arrested in his place. Part of the concern was the appellant’s inability to give adequate detail about the alleged court proceedings to which his father was assertedly subjected, a difficulty not overcome by subsequent production of documents of uncertain provenance. For example:
73.I consider the applicant’s lack of knowledge about the court proceedings that he claimed his father was involved in cast doubt upon whether he had a genuine fear of persecution for the reasons claimed. For example, I find it difficult to accept that the applicant would not have asked his father about when he last went to court or what happened on this occasion. I have considered the applicant’s evidence that he hadn’t asked his father about what court he went to because of the stress and problems he had in his head but I reject this explanation as unconvincing and contrived; the applicant has indicated he remains in contact with his father, he has claimed (in his written statement) to have had conversations with his father about the problems his father has faced, and there is no evidence (medical or otherwise) before me that support the applicant’s explanation. While I do not expect the applicant to have a detailed knowledge of the court proceedings in which he claims his father was involved, the applicant’s failure to take steps to inform himself about his father’s detention (for example, where his father was detained) and subsequent involvement in ongoing court proceedings (for example, when his father last attended court) that is central to his claims for protection strains credulity.
74.The applicant’s oral testimony was less detailed than the documentation he provided in support of his claims and his advisor’s submissions. At the hearing I discussed with the applicant my concerns that while his advisor’s submissions indicated his father’s last court date was in September 2012, the applicant’s evidence to the Tribunal was he didn’t know when his father attended court. The applicant and his advisor sought to explain the applicant’s lack of knowledge about when his father last attended court by arguing that the applicant could not read, the documents in question had been provided by the applicant’s brother, rather than the applicant, and that the advisor had been taking instructions from the applicant’s brother (who spoke English), rather than the applicant himself. These explanations do not resolve my concerns about the fact that the applicant’s oral testimony about his father’s court proceedings was extremely vague and, while I accept he has limited knowledge of legal proceedings, I find it strains credulity that the applicant would be in contact with his father and yet know so little about his involvement in court proceedings.
75.At the hearing on 26 November 2012, the applicant and his representative suggested I contact his father by phone and take evidence from him. The hearing was adjourned to enable the applicant to provide further information about the court proceedings he claimed his father was involved in and before the resumed hearing on 6 December 2012, the Tribunal was provided with a written letter that was said to be from the applicant’s father (para 51). As I put to the applicant I found it rather strange that the letter was typed in English when he said his father only spoke Tamil, and it was in any event – a copy – not an official court document and it could have been written by anyone. Moreover, while the letter contains a greater level of detail about the detention of his father than the applicant revealed in oral testimony, this only reinforces my concerns about the vague nature of the applicant’s own testimony and his claim that he didn’t know where his father was detained. In this context, I consider the letter lacks probative value and I do not accept that it assists the applicant.
76.The applicant did not pursue his request to have the Tribunal take oral evidence from his father in Sri Lanka at the hearing on 6 December 2012 or 4 June 2013. Such evidence would, in my assessment have been of limited probative value given the difficulties in verifying the identity of the witness and nor do I accept that, to the extent that the applicant’s father might have provided oral evidence that corroborated and expanded upon his son’s claims that he was involved in court proceedings, that this would assist in overcoming my concerns about the credibility and plausibility of the applicant’s claims.
Findings of this kind are not subject to judicial review in the courts unless a jurisdictional error is exposed. It was to support an allegation of such error that the application to adduce further evidence was directed. I shall return to that application very shortly, but first I should complete the procedural history.
The RRT affirmed the decision of the delegate on 15 July 2013. Then, the appellant made an application to the Federal Circuit Court of Australia (“the FCCA”) for judicial review of the decision of the RRT. The appellant was there assisted by the same solicitors who appear for him in the present appeal.
The FCCA rejected each of the grounds finally advanced and dismissed the application for judicial review.
The present appeal challenges that outcome, but not all of the grounds relied upon before the FCCA are raised in the present appeal. One ground (which has been renewed) was:
4.… by reason of material errors in translation by the interpreter, the applicant was denied procedural fairness.
Some further contentions have now also been advanced to which some of the additional proposed evidence relates.
The grounds of the present appeal are:
1.The Federal Circuit Court erred in failing to find that the appellant was effectively denied a hearing within the meaning of section 425 of the Migration Act due to the inadequacy of the translation provided by the interpreter at the Refugee Review Tribunal hearing.
2.The Federal Circuit Court erred in failing to find that the appellant was denied procedural fairness, in that the then Refugee Review Tribunal:
a. formed a negative view of the appellant’s credibility early in the process,
b. failed to bring an open mind to any evidence that could address the Tribunal’s concerns in relation to credibility,
c. in relation to the evidence from the appellant’s father, (at [75] of the Tribunal’s reasons) found that written evidence from the father “only reinforces [the Tribunal’s] concerns about the vague nature of the [appellant’s] own testimony”, in circumstances in which the lack of such evidence was the basis of adverse credibility findings against the appellant,
d. found (at [76]) that oral evidence from the father would not have assisted in overcoming the concerns as to the appellant’s credibility, and therefore did not pursue the appellant’s suggestion to contact his father and receive his evidence via telephone, and
e. consequently failed to give the appellant a reasonable opportunity to respond to the Tribunal’s concerns about his credibility, resulting in a failure to give the appellant a meaningful hearing.
3.The Federal Circuit Court erred in failing to find that the then Refugee Review Tribunal failed to make an obvious inquiry on an issue of critical fact, namely whether it is an accepted practice in Sri Lanka for a relative to be brought before a court to answer for the absence of a fugitive, which failure was so unreasonable that no reasonable decision maker could have so failed.
The FCCA rejected the contention that the appellant was denied procedural fairness through inadequacy of interpretation. The material in support of that proposition, upon which the appellant wishes to rely in the present appeal, is more extensive than it was before the FCCA. As I earlier explained, I do not propose to give leave to admit that further material into evidence because it would not assist the appeal to do so.
The parties agreed that the appropriate test is stated in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 (“NASB”) at [42], namely:
… first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: …
I need not consider the first aspect of the test.
In my view, the second aspect of this test is not satisfied on the question of the standard of interpretation. The infelicities and imprecisions referred to and relied upon by the appellant are no more than that. My reading of the RRT decision does not support any conclusion that the RRT misunderstood either the general nature or relevant particular aspects of the appellant’s claims or evidence. On the contrary, it appears to me that the RRT did understand the appellant’s claims and evidence, but did not accept them. That evaluation involves consideration of the merits of the appellant’s claim for a protection visa and is not part of the role of this Court.
One complaint by the appellant was that the interpreter did not understand or could not translate the word “vague”:
… with the result that the Tribunal’s concerns about his apparently vague account are never conveyed to the appellant, and he never has an opportunity to address it.
In my view, it is apparent that the appellant understood that the RRT was concerned that there was a lack of detail and documentary support for the appellant’s claims about the court case involving his father. As the appellant had said that he was in frequent telephone contact with his father, the RRT was concerned by the appellant’s lack of knowledge about the details of the court case, a matter which was central to his claims. The appellant’s response to those concerns was to say that documents were available but only his father could ask for them and his father was unable to do so because he was in hospital being treated for a leg condition.
The significance of the concerns appears clearly from the extracts from the RRT decision set out earlier. In my view the concerns must have been apparent to the appellant in the light of the answers he gave. I am not satisfied that the particular complaints about inadequate interpretation, or the totality of them, affect that issue or give any reason to doubt the general reliability of the RRT’s assessment about it.
Another complaint concerned a finding by the RRT that no warrant had been issued by the Sri Lankan authorities to apprehend the appellant.
That finding was an element in the assessment by the RRT of the appellant’s credit. It was incorporated in the following passages:
70.Despite claiming he was of ongoing interest to the authorities since 2008, the applicant’s evidence does not indicate that the authorities took steps to locate him by interviewing his wife or that he was himself the subject of an arrest warrant or a summons or that he encountered any difficulties while living in Trincomalee or travelling between Udappu and Trincomalee in 2008 or 2012. In this context, the applicant has not satisfactorily explained why the authorities would take action against the applicant’s father – instead of the applicant himself – through protracted court proceedings. It strains credulity to accept that, if the applicant was the target of the authorities, the documents that he claims corroborates his claims (the detention order and warrant) would name the applicant’s father and not the applicant.
71.I consider the applicant’s claims that the authorities would take legal action against his father because they could not ‘catch’ the applicant are highly improbable, lack internal logic and are not otherwise supported by relevant or persuasive detail. After claiming that the court proceedings against his father had been ongoing since he was released from detention in around 2009 when the applicant was asked, at the hearing on 4 June 2013, what happened on the most recent occasion his father attended and whether he had been asked to attend court again, the applicant indicated it was only when he was arrested that they would be able to proceed with the case. It strains credulity to accept that the Sri Lankan authorities would arrest the applicant’s father because they could not locate the applicant and detain him for six months at a location that was unknown to the applicant and then, upon his release, require him to attend court over a five year period (during which time the applicant has not claimed to be the subject of summons or a warrant) and then, in February 2013, place an indefinite pause on proceedings because the applicant, who is said to be the real target of the court action, was not available.
…
78.I note that following the hearing on 6 December 2012, the Tribunal was provided with a document that, according to the unaccredited translation that accompanied it, was an arrest warrant for the applicant’s father. However, I find it difficult to understand why, if the target of the authorities’ interest was the applicant and not his father, the applicant himself was not [the] subject of the warrant. I consider it to be highly improbable that the applicant’s father has been required to attend court since 2009 (around once a month according to the applicant’s oral testimony) over the course of four years but the proceedings have not yet reached a conclusion. Having had regard to all the evidence before me, I do not accept that any of the documents assist the applicant in overcoming my concerns about the credibility of his claims.
(Emphasis added.)
The appellant’s original claims included:
5.My problems in Sri Lanka started when one of my friends, Rajah, from my area, returned to my village from Jaffna. Rajah had left my area in 2002 with his family and they went to live in Jaffna. When he returned, he asked me to go with him to the GS (village officer) to assist him get his id. I took him in to the office and introduced him but I don’t know if he got his id or not. After that I have never seen him again. This occurred in 2005. In my entry interview I said that this occurred in 2008, but I was very nervous when I arrived on Christmas Island, and now that I have had time to think about it, I known this happened in 2005.
6.I thought that because Rajah was from my area, I knew him well, and he told had told [sic] me he lost his ID that I was just doing him a favour. I had no suspicion or no reason the think Rajah might have worked with the LTTE.
7.In 2008 (between approximately August and October), when I was not at home, the GS and CID came to my home. My father and mother were there. My father spoke to the authorities and told them I was not at home. So the authorities took my father and put him in the jail.
8.When my mother went to see him, my father told her that the reason why he was taken was because I had helped Rajah who was suspected of belonging to the LTTE. He was in jail for a number of months. I have provided a document to my lawyer that shows my father was charged and jailed at this time. The authorities charged my father with forgery, but it is the offence that the authorities wanted to charge me with.
9.I was very scared of being picked up by the CID for suspected of being involved with the LTTE, so I went into hiding at my uncle’s place at Trincomalee. I kept a very low profile there for 4 years I just went fishing and stayed at home.
10.My father’s case is still in progress. He is on bail and has to go to court again for his case to be finished. Because the case is not finished, if I was in Sri Lanka I would be called for enquiries and I will definitely be harmed, if not finished off by the authorities during that process.
…
12.I believe if I return to Sri Lanka the CID will take me for enquiries and finish me off. This is the reason my father did not tell them where I was.
(Emphasis added.)
A 90 day “Detention Order” dated 7 October 2008 naming the appellant’s father for “aiding and abetting to prepare forged documents to establish the identity for the terrorist members” was provided at that time. A document stating that the appellant’s father was visited in detention by the International Committee of the Red Cross, and was released from detention on 30 March 2009, was also provided.
The Minister’s delegate did not accept that these documents were genuine. The RRT was not bound to the same view, but on any view the appellant needed to give greater substance to his claims, both as to his father’s involvement (detention and subsequent court proceedings) and as to his assertion that the appellant (and not his father) was, and always had been, the real target and person of interest.
It should be noted that the RRT consistently pressed the appellant for some form of official record of the alleged proceedings against his father to support his claim to be the real target of them.
In the FCCA the appellant relied on allegations of inadequate translation which were directed to the proposition that in a hearing before the RRT on 4 June 2013 the appellant (properly understood) claimed to have been informed that a warrant or order for his arrest had been issued in February 2013, and made claims to a similar effect with respect to earlier periods.
The applicant had three hearings before the RRT: 26 November 2012, 6 December 2012 and 4 June 2013. There were, I was told, different interpreters at each hearing. No challenge has been made to the standard of interpretation on 26 November 2012. Challenges have been made to the interpretation on 6 December 2012 and 4 June 2013.
In the hearing on 26 November 2012 the following exchanges occurred:
In your statement you refer to there being a court case against your father. Can you tell me more about that?
Because of the problem – because of the problem since they couldn’t catch me, they actually detained my father. Since they couldn’t catch me, they actually filed a case against my father and the case is still going on, and since they haven’t - - - they couldn’t catch me, the case is still going on.
What is the case against your father?
Because I actually helped for a LTTE member, they came searching for me and since they couldn’t find me they actually put those charges on my father, and since he is the father of me, and they have filed a case against him.
You say that your father was detained in 2008. Why is the case still ongoing?
For the case, I am the important witness and so they have to actually interrogate me and I think that’s why the case is still going on.
How do you know the case is still going on?
My father told me when I was talking to him over the phone.
When did your father last have to go to court?
I – I don’t know when – I don’t know when he went last time to the court regarding the case but he used to mention he used to go every month.
When does he have to go to court again?
I don’t know that. We have to ask him – ask them.
…
The country information I have is that it is easy to obtain fraudulent documents in Sri Lanka. So I may give the Detention Order and the detention document from the - - - the International Committee of the Red Cross, I may be able to give them little weight. I also do not understand why, if the authorities were interested in you, the Detention Order is an order that related to your father.
…
I don’t understand why, if the detention order – I don’t understand why if the authorities were concerned about you, why the Detention Order relates to your father. Do you want to comment or respond to that information?
Since they couldn’t get me and I was – they couldn’t catch me, they have to actually impose these things on my father and that’s why the case was imposed on him and it’s still going. If they - if they think it’s a forgery document then there’s no necessity for me to submit this to you because since this is the only evidence I have for my father being in jail so - - - that’s the only thing I can actually provide as a document, for my father being detained.
If your father was involved in an ongoing court case, wouldn’t there be documents that would relate to that ongoing court case that would be in your father’s possession?
I have to ask my father whether there are any documents relating to the ongoing court cases and if there are some, any documents like that then I was very happy to submit that to the Tribunal. …
The accuracy of the translation is not challenged.
At the hearing on 6 December 2012, according to the translation offered by the appellant, the following exchange occurred:
Member: Why does your father still have to go to court?
Interpreter: Why does your father still have to go to court?
Appellant: Because of me, he is going to court. Because I am not there, that is why he is going.
Interpreter: I was not available for them to catch, so he was available to be caught. That is what happened.
(Bold in original to show words spoken in Tamil.)
Thereafter, the RRT pressed the appellant for any official documentation about the court case, suggesting that it should be available and possibly the father’s lawyers could obtain it. The appellant insisted that only his father could do so, but was not able to at that time as he was hospitalised.
The RRT transcript of the hearing on 4 June 2013 records:
… Do you want to tell me whether there have been any developments in your father’s case since we last spoke?
Yes please.
Please do.
Yeah he attended, yeah, what they informed, since I was not there, they informed to arrest me, catch me somehow. That is the information he got.
Does he have to go back? Do you know whether your father has to go back to court at another date?
Yeah, no, they have not – only – they have asked – they have instructed to arrest me, only when I am arrested will they call my father, the next step will be taken.
Sorry so, so what happened at the – what do you say happened at the court in February?
They asked about me and, since I was not present, they instructed to arrest me immediately and bring in, then only they can proceed with their case.
You have previously said that your father was granted bail from Chilaw Court in 2009. I have some difficulty accepting that he would have had to go back to court on multiple occasions and that the case would still not be resolved at this point in time in 2013.
No I’m not getting exactly what the question is.
I have some difficulty accepting that your father first was released on bail from Chilaw Court in 2009 and then according to your evidence has had to return to court on a number of different dates, most recently in February 2013. I have some difficulty accepting that the case would be ongoing over that period of time.
Yeah, every time that we go back to court, what they inform us, bring this person, arrest this person and bring him back, then only they can proceed with the court, with their case. Even the last appearing, that’s what they have informed him.
A revised partial translation (of 4 June 2013) offered on behalf of the appellant to the FCCA was (bold in original to show words spoken in Tamil):
M:Do you want to tell me whether there have been any developments in your father’s case since we last spoke?
I: has he gone, if so, have you got any details?
S: (inaudible)
M: Please do.
S:My dad went to the Court and I was not present at the court hearing, so they have asked the [inaudible – possibly mp] to make an order to arrest me and catch me.
I:Yeah he attended, yeah, what they informed since I was not there, they informed to arrest me, catch me somehow, and that the information he got.
M:Does he have to go back, do you know whether your father has to go back to court at another date?
I:Have they asked him to appear on any certain dates?
S:Their instruction is to arrest me first.
I:Yeah, no, they have not, only only they have asked, they have instructed to arrest him, only when I am arrested they will, they will call my father, the next step will be taken.
M:Sorry so, so what happened, what do you say happened at the court in February?
I:what happened in the court in February?
S:They were asking for me. Until I am brought to the courts only then they will be proceed. They ordered to arrest me immediately.
I:Yeah, they asked, they asked about me, and since I was not present, they instructed, they instructed to arrest me immediately and bring me and then only they can [prosecute] the case.
M:You have previously said that your father was granted bail from Chilaw Court in 2009.
I:You have previously said your father was granted bail [break in recording].
M:I have some, I have some difficulty accepting that he would have had to go back to court on multiple occasions, and that the case would still not be resolved at this point in time in 2013.
I:For me it is hard to accept the fact that your father has gone many times to the court in 2013 to appear.
S:I didn’t understand that.
I:No I’m not getting exactly what the question is
M:I have some difficulty accepting that your father first was released on bail from Chilaw Court in 2009 and then according to your evidence has had to return to court on a number of different dates, most recently in February 2013. I have some difficulty accepting that the case would be ongoing over that period of time.
I:According to your given evidence, your father in 2009, they have released him, temporarily released him. From there til 2013, you have said he has to go to the courts frequently. This is hard to accept by me.
S:Only when I am captured, then only will the case proceed, if not captured [inaudible]. The case might be dismissed. Even in 2013 also, they have confirmed it, only on my arrest they will go through the case and see what problems are and come to a conclusion.
I:Yeah, every time when he go back to court, what they inform us, bring this person, arrest this person and bring him back to court then only we can proceed with the court, this case. Even the last appearing, that’s what they have informed.
(Footnotes omitted.)
In an affidavit sworn for the proceedings before the FCCA a Tamil interpreter explained:
In the extract of the hearing I listened to, the applicant’s Tamil was colloquial. By this, I mean he is talking in an informal way, as if he is in a coffee shop.
At many points in the extract, the applicant repeats himself multiple times. It is common for Tamil speakers to do this when they want to make a point.
The applicant does not sound illiterate; he is conversant with his language. But he is using more general words; words that are understood by the common man.
For example, at 8 minutes, 46 seconds (paragraph 23 of the Transcript Extract), the applicant states in Tamil: “My dad went to the Court and I was not present at the court hearing, so they have asked the [inaudible – possibly mp] to make an order to arrest me and catch me”.
I understand this phrase to mean the same as the “court has issued a warrant for my arrest”.
There are many ways in Tamil to express this meaning.
There are several words for “warrant” in Tamil. A Tamil speaker may use the word the same as in English: warrant.
Another word for warrant in Tamil can be translated literally as “an order to catch me”. The phrase can be spelled in English as “peedi kattalai”. The first word means “to catch” and the second word means “order”. This way of saying ‘warrant’ is less common. It is more for a Tamil lawyer, or someone speaking formally.
The applicant here has shortened this phrase, and just used the Tamil word “peedi”: meaning “to catch”.
The interpreter has interpreted the applicant’s sentence into English directly. The interpreter has used the phrase “an order to catch me”.
In my opinion, this is a common and informal expression that the applicant was using to say there was a warrant for his arrest.
The interpreter used this same word, “peedi” at 7 minutes 25 seconds (paragraph 6 of Transcript Extract), when he was interpreting what the member is saying to the Applicant. I interpret this word as “warrant” in the sentence: “before that I like to inform you that through this meeting a translated document which is like a warrant”.
At the hearing of the present appeal, counsel for the Minister emphasised that this evidence only related specifically to some (not all) of the exchanges about what happened in February 2013, rather than earlier, so that there was no evidence to impugn the RRT’s conclusion that before February 2013 there was no warrant or summons against the appellant.
I think this evidentiary distinction is too fine to be really useful, but that does not mean that the RRT has assessed the credibility of the appellant on a false factual premise.
It is sufficiently clear in my view, that the RRT was referring to there being no evidence or claim of a documented warrant or summons in the name of the appellant. None had been provided to it at the time of its decision, although some documents in the father’s name had been.
In my view, the RRT did not proceed on a false premise. The RRT found that there was no evidence (and no claim before it) of any warrant or summons issued in the name of the appellant, rather than in the name of his father. It is not clear that the RRT accepted the authenticity of even the documents naming the appellant’s father but it is clear that it did not accept that the appellant himself was of interest to the authorities. The criticisms of inadequate translation do not affect the substance of the RRT’s analysis or give any reason to think that the appellant’s credibility may have been assessed differently if the interpretation was otherwise.
Ground 1 of the appeal should not be accepted, even if the proposed evidence was admitted. That evidence will therefore not be admitted. The RRT was entitled to question the veracity of the appellant’s claims. It explained why it did so. No jurisdictional error is apparent.
Apart from material directed to the standard of interpretation, the other material sought to be admitted into evidence in the present appeal consists of documents which were before the RRT, but not before the FCCA. The documents are said to be relevant to Ground 3 in the present appeal.
In written submissions in support of the application to adduce additional evidence it was said:
4.The UNHCR Guidelines and the Amnesty International report are adduced to demonstrate that based on material that was before it, the Tribunal could have made a simple and obvious inquiry into the critical fact of whether it is an accepted practice in Sri Lanka for a relative to be brought before a Court to answer for the absence of a fugitive. The failure to make such an inquiry is the third ground of appeal. The UNHCR Guidelines were explicitly cited by the Tribunal in its reasons for decision in support of a different point. The Amnesty International report was cited, together with a web link, by the appellant in the written submissions to the Tribunal prepared by his migration agent. Both documents were therefore before the Tribunal, but neither was reproduced in the court book for the Federal Circuit Court, with the result that neither document was before the Court below.
The effect of the documents was summarised in the appellant’s written submissions on the appeal as follows:
38.The Tribunal had before it the UNHCR Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka. The Tribunal’s reasons expressly rely on page 8 of the UNHCR Guidelines in finding that not all returning Tamil failed asylum seekers will be in need of international protection. The Tribunal says it considers the UNHCR Guidelines to be persuasive.
39.Page 28 of the same document, in discussing ongoing monitoring of people suspected of LTTE connections, contains the following statement: “Should the individual fail to report to the military authorities on a regular basis, family members are directly questioned by the military on their whereabouts.”
40.The Amnesty International report, ‘Locked Away: Sri Lanka’s Security Detainees’, was also before the Tribunal, having been referred to in the appellant’s written submissions to the Tribunal. That document also attests to the practice of repeatedly visiting family members of suspects or former detainees, threatening them with arrest if they do not reveal the suspect’s whereabouts.
(Footnotes omitted.)
A practice, if it exists, of visiting family members to make enquiries, or threaten them with arrest if they do not co-operate, does not find a useful parallel with the appellant’s claim that his father had been charged with forgery in his place. The material is not destructive of the RRT’s findings and would be quite inadequate to support the proposition that the RRT was bound to make its own enquiries in this area, a contention not advanced to the FCCA.
Again, the second aspect of the test in NASB is not met. The proposed evidence should not be admitted. Ground 3 of the appeal is rejected.
Based on my findings to this point, the interlocutory application will be dismissed with costs.
The remaining ground of appeal (Ground 2) must also be rejected. This ground was supported by the contention that the RRT committed a jurisdictional error amounting to bias and by not arranging for the appellant’s father to give evidence by telephone.
There is no apparent basis for the contention in the grounds of appeal that the RRT was predisposed against the appellant. I therefore reject that contention.
The suggestion that the appellant’s father might give evidence by telephone was advanced by the appellant, and his representative, to meet concerns by the RRT about the nature of the court case. However, the RRT made it clear that it was interested in some objective record of the case, rather than further assertions about it.
The appellant’s migration representative was clearly aware that details about the court case were important. On 26 November 2012 this exchange occurred:
[Representative:] The particulars of the Court, the case, the charges – this is all very significant and if my client can’t provide it then I would seek that his father provide it through witness evidence to the Tribunal.
…
[Appellant:] If – one thing I want to mention, if they don’t believe me or my brother’s evidence, they can actually speak to my father directly over the phone and we can ask, enquire him like whatever we are saying whether it’s correct or wrong, like.
[Member:] I’m going to provide your adviser with an opportunity to provide further submissions about the details of the court case. It is a matter for you what evidence is presented in those submissions and whether you make requests for evidence to be taken from further witnesses.
Before the next hearing on 6 December 2012, the appellant’s migration representative provided the RRT with a letter in English, purportedly from the appellant’s father saying he was taken into custody in lieu of the appellant on 7 October 2008, was granted bail on 30 March 2009 and the case was still pending. The representative wrote:
We submit that given the above documents it is open to you to find that our client has been a credible and consistent witness about his claims and fears in Sri Lanka.
His lack of information and detail about the legal proceedings involving his father is not tantamount to a lack of credibility.
Pending any discharge of our client’s father from hospital, we re-iterate that our client’s father is also available to give oral evidence to the Tribunal about these matters of which he has first-hand knowledge.
At the hearing on 6 December 2012, the following exchanges occurred:
I asked you when did your father first have to go to Chilaw Court?
It is in 2009.
So he first had to go to Chilaw Court in 2009, is that correct?
Yes and in 2009 he was released from the court.
In 2009, where was your father released from?
From Chilaw Court.
Had your father been to court before 2009?
I don’t know.
Now, I have some concerns about the truthfulness of your evidence about your claims that your father is involved in court proceedings.
That is why I have showed these documents and told you that we was having problem in getting these things, and you are not believing, what can I say. That is the truth.
The document that you’ve provided is a typed document that could have been typed by anyone. It is not an official document from a court proceeding or process and, as I put to you at the last hearing, if your father has been involved in court proceedings in Chilaw Court for an extended period of time, I would expect that there would be some official documentation about those court proceedings.
Because of the leg problem – he is promised to give all the documents – but because of the leg problem it is not happening.
I am also concerned about your evidence because I asked you today when your father last had to go to court and you told me you didn’t know and you didn’t ask him.
In that case, I can call him on the phone?
…
I have noted that at the last hearing your adviser suggested that we take evidence from your father.
Ah
I have noted that at the last hearing your adviser suggested that we take evidence from your father.
And the submissions by your adviser also are to the fact that “after any discharge of your father -- our client’s father from hospital, our client’s father is available to give oral evidence to the Tribunal”.
Now, I’ve indicated to you that court proceedings are an official process and I would expect that there are documents involved in that court proceedings. I have said to you that I am concerned that your claims and understanding about your father’s court proceedings are so vague and that you could provide – if you are able to provide further detail or official court documentation relating to the court proceedings, that would be of assistance. Now I understand that you claim your father is in hospital but you said he has provided a written letter to the Tribunal and he is able to speak to you on the phone. You have told me he is legally represented which means he is paying a lawyer to look after his matters. So it really is unclear to me why he was not able to simply instruct his lawyer to provide these documents. In this context I don’t see a lot of utility in interviewing your father. I would however like to hear what documents you think – your adviser suggested you can provide further documents – what further documents you think you could provide and what you think the impediments are to providing those documents promptly.
(My bold emphasis.)
In its decision the RRT said (in a passage set out earlier):
76.The applicant did not pursue his request to have the Tribunal take oral evidence from his father in Sri Lanka at the hearing on 6 December 2012 or 4 June 2013. [See footnote 4.] Such evidence would, in my assessment have been of limited probative value given the difficulties in verifying the identity of the witness and nor do I accept that, to the extent that the applicant’s father might have provided oral evidence that corroborated and expanded upon his son’s claims that he was involved in court proceedings, that this would assist in overcoming my concerns about the credibility and plausibility of the applicant’s claims.
[Footnote 4 said: The hearing invitation response form to the hearing on 6 December 2012 does not make such a request and no hearing response was received in relation to the hearing on 4 June 2013.]
In my view, there was no obligation on the RRT, to pursue the matter further. It had clearly indicated the nature of the material it was seeking and its doubt about the utility of a telephone conversation with the appellant’s father. In its decision, it explained why evidence from the appellant’s father would have been of limited value if called and why it would not have resolved the RRT’s concerns.
There was no denial of procedural fairness, Ground 2 must be rejected.
As none of the grounds of appeal should be accepted the appeal should be dismissed. Costs should follow the result.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 6 September 2016
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