NATF v Minister for Immigration
[2003] FMCA 244
•3 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATF & ORS v MINISTER FOR IMMIGRATION | [2003] FMCA 244 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether RRT hearing was procedurally unfair – alleged interpretation difficulties during final stage of RRT hearing – whether any unfairness cured by an opportunity to listen to the sound recording of the hearing and make written submissions. |
Migration Act 1958 (Cth), s.474, 476
Ismail v Minister for Immigration (1999) 59 ALD 773
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
SZAAJ v Minister for Immigration [2003] FMCA 247
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
| First Applicant: Second Applicant: | NATF NATG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1208 of 2002 |
| Delivered on: | 3 July 2003 |
| Delivered at: | Sydney |
| Hearing dates: | 25 February 2003 11 June 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Bilias & Associates |
| Counsel for the Respondent: | Mr R J Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1208 of 2002
| NATF |
First Applicant
NATG
Second Applicant
NATH
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 31 July 2002 and handed down on 20 August 2002. The applicants initially applied for review in the Federal Court on 28 August 2002 and that application was transferred to this Court for hearing. An amended application was subsequently filed and the case listed for hearing on 25 February 2003. On that day I granted an adjournment and permitted the applicants to file a further amended application and affidavits. The matter proceeded before me on 11 June 2003 on the basis of a further amended application filed on 27 May 2003 and on the basis of affidavits by each of the applicants filed on 16 May 2003. None of the deponents were required for cross-examination. The applicants also rely upon written submissions by
Mr Young filed on 30 May 2003. Mr Young also appeared on behalf of the applicants and made oral submissions. The respondent relies upon written submissions prepared by Mr Bromwich filed on 5 June 2003. Mr Bromwich also appeared and made oral submissions.
The background facts and circumstances are accurately set out in paragraphs 4 to 9 of the Mr Bromwich’s written submissions and I adopt those paragraphs as follows:
The applicants are all from Chile. The first applicant is the mother of the second applicant; and the third applicant is the wife of the second applicant. For convenience, they will be referred to as the mother, the son and the wife.
The applicants arrived in Australia separately in 1999, 2000 and 2001, made separate applications for protection visas, and were each refused the grant of protection visas by a delegate of the respondent. The dates are summarised in the reasons of the RRT (court book, page 342.2). On 20 August 2002, the RRT handed down a decision made on 31 July 2002 affirming the decision of the delegate.
The main basis for the claim for protection visas was a family association with a brother of the mother, who had been killed by members of the armed forces of Chile in 1986. The applicants claimed that the family name was so distinctive that they would suffer persecution based on the conduct of the deceased and his status as a victim of human rights abuses during the Pinochet regime. Claims of persecution, including detention and torture, by reason of involvement in human rights protest activities and related political activities were also advanced.
The RRT did not accept that a family association with a person who was a victim during the Pinochet regime (16 years before the RRT decision) gave rise to any well founded fear of persecution, because there was no indication in any country information to support that ever having occurred (court book, pages 355.3, 367.4). There was nothing to indicate those subjected to past human rights abuses were of any continued interest to anyone since the return of democracy (court book, page 367.5). The RRT did not accept that there was any real chance of persecution upon this basis (court book, page 368.3), noting that the evidence did not suggest other family members with the same name were persecuted (court book, page 367.5). That is, the central claim made by the applicants substantially failed by reference to country information, not any issue of credibility of any of the applicants. Accordingly, that aspect of the applicants’ claim has little, if anything, to do with what took place at the RRT hearing.
The RRT had grave credibility concerns about aspects of the applicants’ evidence due to inconsistency and implausibility (court book, page 366.7). In particular, claims of torture and serious mistreatment were not accepted in relation to the mother (court book, pages 371.3, 271.3), the son (court book, page 373.4) or the wife (court book, page 373.8). The claimed official interest in the mother and son was found to be inconsistent with obtaining passports without difficulty, leaving Chile legally (the three applicants over a three year period), the passage of time since the death of the deceased brother in 1986 and the fact that left wing political parties and groups enjoy considerable popular support, are legal entities and operate openly (court book, pages 373.9 – 374.2, 375.2). That is, each of these claims failed in their own terms and had little, if anything to do with the part of the RRT hearing at the end at which all three applicants were present.
While the RRT accepted that the applicants were from Chile, it found that Chile was a very different country since the restoration of democracy in 1990 and more recently (court book, page 369.9) (with the election of a socialist government in 2000 – court book, page 363.1). The secret police force (the CNI) who were claimed to be the main source of both past persecution and a fear of future persecution had been disbanded (court book, page 370.4). Sporadic ongoing human rights abuses were not apparently convention-related and there was, in any event, protection available and relocation was a viable option (court book, pages 366.9-367.2)
Consideration and findings
The further amended application seeks prerogative relief on the basis of alleged bad faith, a denial of procedural fairness in the conduct of the RRT hearing on 21 May 2002 and the denial of a hearing to which the applicants were entitled, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”). Mr Young stated at the outset of the hearing before me that he did not press the bad faith claim. During argument, he decided not to press the claim based on a statutory entitlement to a hearing on the basis that if the applicants could not establish a breach of procedural fairness, they could not establish a breach of the Migration Act. Accordingly, only the procedural fairness argument was pressed.
The claim of a lack of procedural fairness is based upon asserted interpretation difficulties at the RRT hearing. The relevant factual allegations are set out in the affidavits by each of the applicants; the mother, her son and his wife. It is common ground that the hearing by the RRT was a very long one of approximately eight hours. It is also common ground that the RRT provided a Spanish interpreter who translated during the examination of each applicant by the presiding member. Each applicant was examined by the presiding member separately. However, towards the end of what must have been a very long day, the three applicants were brought together and the presiding member put to them credibility concerns that she had, based upon their individual claims. Mr Young submits that it was during this stage of the RRT hearing that the proceedings became unfair. He submits that the proceedings became unfair because the interpreter was unable to deal with the demands put upon her because of the physical arrangements of the hearing room and the seating of the three applicants and because matters went too quickly. He submits that it was left to the son to attempt to interpret on behalf of the other applicants and he struggled to do so, given that his first language is not English. In the circumstances, Mr Young submits that it was unfair for the RRT to draw adverse conclusions as to credibility. Mr Young deals with the matter at paragraphs 11 to 19 of his written submissions:
At page 354, the RRT refers to speaking to the applicants together, and seeking their comments on inconsistencies in their evidence after each applicant had given evidence separately to the RRT. It is to this period of linguistic medley that the applicants’ affidavits principally relate. The affidavit of [NATF] deposes that the hearing took many hours and that she gave evidence individually before the RRT using a Spanish interpreter. Her level of understanding of English is poor; she is not confident in English. She swears that during the period that all of the applicants were interviewed together, she felt exhausted and was in a state of upset and she felt ill.
[NATF] further deposes that during this period there was only one interpreter for the three applicants. The interpreter had to be asked on a number of occasions what was said because [NATF] did not understand what was being said, but attempted to try to follow what was being said in English. It appeared to her that the RRT member seemed to be mainly concerned that the name in the Rettig report was spelled [differently from the applicant’s family name] and that the applicants were using a similar name which they had found in the Rettig report to make a false claim.
In the circumstances, [NATF] felt that she should try to answer as best she could in English even though she did not have sufficient comprehension of English to do so.
She further deposes that her son [NATG], who had the best but by no means good knowledge of English, had to try to answer in English for all of the applicants including his wife and his mother.
Applicant [NATH] deposes in her affidavit that she had been in Australia for just over one year at the time of the RRT hearing. She is the wife of [NATG] and the daughter in law of [NATF]. During the period in which the RRT called the three applicants back into the room, she was sitting a considerable distance from the interpreter. The interpreter did not interpret for her what was said. She heard [NATF] say several times that she did not know what was happening and asked for things to be interpreted. She further deposes that most of the talking was being done on behalf of the applicants by [NATG]. She says that she was very upset and feeling unwell. She says that her husband looked upset both during and after the time that he gave his evidence. In the final paragraph of her affidavit, she says that she felt completely unable to participate in the proceedings during the period of the three being interviewed together, due to her lack of English. She says that she had little idea what took place during this time.
The applicant [NATG] deposes that he arrived in Australia in August 2000. At that time he spoke no English. He picked up some English between the time of his arrival and the time of the RRT hearing. During his separate interview he mainly spoke Spanish although on occasions he answered in Spanish without waiting for the interpreter. He says that he found his interview very stressful and upsetting and he observed his wife to be upset at the end of her evidence.
During the period they were all together, he says that the RRT member asked questions and made statements, which the interpreter did not have time to interpret. There was only one interpreter, and she was sitting next to his mother [NATF]. Neither he nor his wife had the service of an interpreter. He felt obliged to try to answer for his mother and his wife. He heard his mother implore the interpreter on a number of occasions to interpret what was said because his mother did not know what was happening. During the final session he was very upset, he had been crying and he felt unwell. He says that he felt completely unable to carry out the role which seemed to be put on him by the RRT at the end of a very long day.
The unusual nature of the combined session can be further gleaned from the RRT’s references to it. At 355 of the court book, expressions such as “the Tribunal expressed doubt”, “the RRT noted that the claim appeared to be a belated attempt to make the oral evidence of the three applicants consistent. In response, the applicant mother although she understands some English, referred to difficulties conversing through an interpreter”, “the Tribunal thought this odd”, “the Tribunal disagreed“, “the Tribunal asked why … the applicant mother did not address this issue”.
Even from the writing in the reasons for decision of these exchanges, the RRT member appears to have adopted a particularly personal note and role in relation to what was not meant to be a discourse or argument but rather the RRT adopting an impartial inquisitorial function.
Mr Young further submits that what occurred at the conclusion of a very long hearing day was a “travesty”. Only one interpreter was present for the three applicants being required to give evidence in a single session. Mr Young submits that the bringing together of the three applicants to “pit one against the other” to seek “their comments on inconsistencies in their evidence”, appears to have been an unwise course in any event and certainly an unwise course at the end of such a long day when there was only one interpreter present and even given that limitation, the interpreter was not able or did not interpret most of what was being said. Mr Young submits that applicant NATF, who was closest in proximity to the interpreter, had to ask on a number of occasions for the interpreter to interpret what was being said as she felt that she had no idea what was going on.
I accept that, following the decision of the High Court in Plaintiff S157 of 2003 v Commonwealth (2003) 195 ALR 24, a lack of procedural fairness is a jurisdictional error which will vitiate a decision of the RRT notwithstanding the privative clause in s.474 of the Migration Act. Where procedural unfairness is established the relevant decision is not a “privative clause” decision for the purposes of the Migration Act. I also accept that interpretation difficulties can establish procedural unfairness: SZAAJ v Minister for Immigration [2003] FMCA 247. In Ismail v Minister for Immigration [1999] FCA 1555 His Honour Lee J posed the test in this way at [26]:
The essential requirement is that the interpretation provided be of sufficient standard to ensure that justice is done, and is seen to be done: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290-292.) Errors by interpreters which lead a Tribunal to make adverse findings material to an applicant's claim will mean that such a requirement has not been satisfied, and ground for an order for review will be made out…
His Honour was referring to the review ground contained in former s.476(1)(a) of the Migration Act but, in my view, the same principle applies under the general law of procedural fairness.
The RRT describes the procedure it followed at page 354 of the court book. The presiding member says:
After each applicant had given evidence separately the Tribunal spoke to the applicants together and sought their comments on inconsistencies in their evidence, for example about the frequency of visits to their home and workplace, about whether the applicant mother was arrested only at the demonstration on 11 September 1999 or also again or the next day from elsewhere, and beaten and about the change in emphasis in their evidence from all their problems stemming from the [family] name, to their problems apparently stemming from their own activities or information they were wrongly thought to possess. In addition, the Tribunal put to them that it had difficulty accepting that the ALBERTO RODRIGRO BELLO LOPEZ listed in versions of the Rettig report located by the Tribunal… was a relative or had any link to the applicants as the name is spelt BELLO in that report and a search by name revealed no other information about the person in the report to enable the Tribunal to compare that information to information provided about A by the applicants. In any case, the Tribunal also had difficulty accepting that relatives of the victims are of adverse interest to the authorities or to anyone else, as independent country information for example about the very public activities of the AFDD and other similar organisations, and the applicants’ own evidence about other [family name] family members and the applicant wife’s own family (who had relatives of interest to the authorities during the dictatorship) remaining in the Vina area safely, does not indicate that relatives of the 3000 victims of the dictatorship are of adverse interest now to the authorities or to anyone else. Furthermore, the Tribunal has considered a number of Chilean cases over the last five years or so, including of applicants who have had the same or similar names to many of those listed in the Rettig report, yet the Tribunal cannot recall any of these applicants claiming to be of adverse interest to the authorities because they are or are thought to be related to a victim named in the Rettig report.
I see nothing wrong in the RRT adopting the procedure of bringing the applicants together to put credibility concerns to them. It was proper and probably necessary for the presiding member to put to the applicants her preliminary adverse conclusions on issues of credibility bearing upon the applicants’ claims. In addition, it was appropriate that the presiding member put to the applicants together at the same time her concerns about inconsistencies in their individual accounts. This was a preferable approach than dealing with those inconsistencies on an individual basis. However, the question remains whether interpretation problems during this stage of the hearing gave rise to procedural unfairness.
In order to answer that question it is first necessary to consider whether the credibility issues that arose during that stage of the hearing bore upon the outcome of the applications. The credibility issues arising from the difference between the family name of the applicants and the family name of an established victim of the former Chilean dictatorship referred to in the Rettig report (who was claimed as a relative by the applicants) proved not to be relevant in that the presiding member ultimately accepted that part of the applicant’s claims. In other words the issue of credibility was, to that extent, resolved in favour of the applicants.
However, at pages 369 and 370 of the court book the presiding member dealt with what she saw as inconsistencies in the accounts of the applicants. It is apparent from that discussion that the presiding member remained of the view that there were material inconsistencies in the applicants’ accounts. In addition, at page 370 of the court book the presiding member stated that the applicants’ accounts of persecution they alleged they suffered were inconsistent with independent country information and implausible. Although the presiding member also drew on other implausibilities in the individual accounts of the applicants, I am satisfied that the inconsistencies between the accounts of the three applicants was a material factor in the presiding member drawing adverse conclusions on credibility. At page 374 of the court book the presiding member concluded:
The Tribunal does not accept as plausible that the applicants are of ongoing interest to the authorities for the reasons claimed, or that the applicant mother or the other applicants faced persecution on return because they applied for protection visas; there is no independent country information to support such an assertion.
This is a partial reiteration of a summary of the presiding member’s conclusions stated at the outset of the findings and reasons for the RRT decision (court book, page 366) where the presiding member states:
The Tribunal accepts that the applicants are citizens of Chile as claimed and as supported by their Chilean passports. In summary, the Tribunal has grave credibility concerns about some aspects of the applicants’ evidence as their oral and written evidence about particular incidents was not, in some important respects, consistent, or in the Tribunal’s view, plausible in the circumstances claimed, and in addition, many of their claimed experiences are not supported by independent country information.
I conclude therefore that the RRT’s decision was significantly based on adverse conclusions about credibility. The RRT found the applicants’ accounts of persecution to be implausible, by reference to country information, and inconsistent, by reference to each other’s accounts. Those credibility concerns were not allayed when the applicants were brought together and the credibility concerns were put to them. It is, therefore, necessary to consider whether any interpretation difficulties at that stage of the RRT hearing gave rise to procedural unfairness.
I have not been provided with a transcript of the RRT hearing but I have been provided with the tapes of the hearing. I was directed by counsel to the relevant part of the tapes to listen to. I have done so. As a result of listening to that part of the tapes I make the following findings.
First, the applicants had previously been present when two witnesses had been interviewed in English. They made no complaint about that procedure, and the presiding member in any event gave time to consider the audio record of that evidence in case the applicants wished to raise any issue. Secondly, contrary to the applicants’ evidence, the interpreter was used throughout the common session. The applicant son stated that he did not wish to interpret because he had a sore throat. Later, however, he intervened in an attempt to clarify his mother’s evidence, not to translate. Thirdly, it was at the point of the applicant son’s intervention, which led to an exchange between him and the presiding member in English, that the applicant mother asked for a translation. That translation was provided after the presiding member explained the point that she had been raising. Fourthly, the only person who appeared frustrated by the process was the presiding member, who sounded tired, and several times asked the applicant mother and son to wait until the translation was completed before they spoke. The applicant mother did state at one point that she wished that she could speak to the presiding member in English but that was not at a point when there were any apparently translation problems. Fifthly, the only part of the common session that could be said to involve any translation problems involved the discussion over the family name of the applicants, which proved not to be an issue treated as adverse to the applicants. I conclude that, to the extent that there were any translation problems at the RRT hearing, these did not have bearing on the outcome of the proceedings. There was no procedural unfairness resulting from difficulties in interpretation.
Should I be wrong in that conclusion it is necessary to deal with Mr Bromwich’s remaining submissions. Mr Bromwich submits that there is no procedural unfairness in this case for two reasons. First, he submits that any difficulties of interpretation were overcome because the RRT, recognising that the hearing had been a very long one and that the applicant mother had expressed concern about the conduct of the last stage of the hearing, provided an opportunity after the hearing for the applicants to listen to the hearing tapes and make further submissions. Mr Bromwich submits that this opportunity amply cured any problem that may have arisen during the final stage of the hearing. Secondly, Mr Bromwich submits that the decision of the RRT was based not simply on issues of credibility but was also based upon a finding that there was no objective basis for any fear of persecution which the applicants may genuinely have held. This is set out as an alternative finding by the presiding member (court book, pages 366 and 374-5). The presiding member found that the dramatic political changes that have occurred in Chile in recent years mean that any persecution which may have occurred in the past is unlikely to recur and that should the applicants experience problems if they return to Chile they can expect to receive adequate State protection.
I will deal with the second submission first. That submission is superficially attractive. In effect, the presiding member was considering what the position would be if she were wrong in her assessment about the lack of credibility in the applicant’s claims. The presiding member was stating that even if the fears held by the applicants were genuine and even if they had experienced persecution in the past, their fears were not well founded and past persecution should not be repeated. The difficulty, however, with that submission is that the presiding member found that in key respects the applicants' claims lacked credibility because they were inconsistent with country information. It was the same country information that led the presiding member to conclude that there was no objective basis for any genuine fears that the applicants might hold. It follows that if the applicants had been accepted as truthful and if their claims had been accepted as genuine, the presiding member would have had to seriously question the country information on which she was relying. In the circumstances, her conclusion on a lack of an objective basis for genuine fears held by the applicants would be rendered unsafe.
I accept the first submission. The applicants were given a week to consider what had occurred at the hearing and to make further submissions. They took that opportunity. They made a number of complaints about the conduct of the RRT hearing (court book, page 18), including alleged translation difficulties. Those complaints are not supported by the audio record. Nevertheless, the applicants, following that letter, were given a further opportunity to make written submissions, which they exercised. To the extent that, contrary to my findings, there was some procedural unfairness in the conduct of the common session due to interpretation difficulties, the applicants were given ample opportunity following the hearing to address the issues that were of concern to the presiding member bearing on credibility.
The decision of the RRT is not vitiated by jurisdictional error, by reason of procedural unfairness or otherwise. The Hickman provisos to the privative clause in s.474 of the Migration Act are satisfied. Therefore, the decision of the RRT is a privative clause decision. I will dismiss the application with costs, which I fix in the sum of $4,000.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 July 2003
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