SZJSR v Minister for Immigration - [2007] FMCA 1803

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1803

MIGRATION – Review of Migration Review Tribunal decision – where applicant claimed to have suffered domestic violence at the hands of spouse – where Centrelink invited applicant to interview in accordance with Migration Regulations 1994 – where applicant alleged inadequate interpretation at interview – whether procedural fairness – where interpretation issues not issues at hearing before Tribunal – whether errors in translation related to matters critical to presentation of the applicant’s case.

Family Law Act 1975
Migration Act 1958, s.359A
Migration Amendment Regulations 2005 (No.4)

Cakmak v the Minister [2003] FCAFC 257
Perera v Ministerfor Immigration (1999) 92 FCR 6
Long v Ministerfor Immigration (2000) 106 FCR 183
Ismail v Ministerfor Immigration [1999] FCA 1555
Arif v Ministerfor Immigration [2002] FCA 1053
Mazahr v Ministerfor Immigration [2000] FCA 1759

Applicant:

SZJSR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 3420 of 2006

Judgment of:

Raphael FM

Hearing date:

11 October 2007

Date of last submission:

11 October 2007

Delivered at:

Sydney

Delivered on:

11 October 2007

REPRESENTATION

Solicitors for the Applicant:

Slattery Thompson

Counsel for the Respondent:

Ms V. McWilliam

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3420 of 2006

SZJSR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant in this proceeding is seeking review of a decision of the Migration Review Tribunal signed on 29 September 2006 affirming a decision that the visa applicant was not entitled to the grant of a subclass 100 (spouse) visa. The applicant's entitlement to this visa arose out of his marriage to another woman of Lebanese nationality who had withdrawn her sponsorship, but who the applicant accused of committing domestic violence upon him.
The relevant sub-clauses of the complex regulations which have recently been amended by the Migration Amendment Regulations 2005 (No.4), and came into effect on 1 July 2005, are set out in paras.3 and 4 of the Tribunal's decision at [CB 212]. There is no reason to set out these regulations in extenso because the issues before me do not really relate to an interpretation of them.
The new regulations, which were applicable at the time that the visa applicant came before the Tribunal, create a regime for the determination of whether such a person has indeed suffered domestic violence. This can be proved either by the existence of an Australian Court order or injunction under the Family Law Act 1975, by convictions or findings of guilt against the alleged perpetrator or, where there are no such findings, through a rather complex system of statements by qualified persons. When, in the latter case, the matter gets to the Tribunal and the Tribunal is satisfied that the applicant may have suffered domestic violence, the Tribunal is obliged to send the matter to Centrelink for an independent expert’s report. The independent expert is usually an employee or a consultant to Centrelink who holds an appropriate qualification in social work. The expert interviews the victim and then makes a determination as to whether domestic violence has occurred, as required by the regulations.
It is important to note that the domestic violence that is being considered is violence that is perpetrated by the spouse, or a person with whom the victim is in a spousal relationship. This has been confirmed by the Full Bench of the Federal Court in Cakmak v the Minister [2003] FCAFC 257 at [16]:
“The language of the regulations, in particular regs.100.221(4)(c), 1.23(1)(a) and (b), 1.23(2)(b) and 1.24(1)(a)(ii), conforms with an intention that this part of the regulations concerns violence by a spouse on his or her spouse or on other family members. It appears to be directed to such interpersonal violence between the parties to the spousal relationship and violence directed to a member of the family unit committed or perpetrated by the spouse himself or herself. To "perpetrate" means to perform or execute or commit. Its meaning is narrower than acting by or through an agent. The "perpetrator" is usually understood to be the actor. The importance of this will become evident in due course.”
And again at [70]:
“[70] We think the regulations are directed to acts of the spouse. The meanings of "commit" and "perpetrate" direct one to the personal act of the spouse of the victim. This accords with the intended subject matter of the regulations: the infliction or threat of infliction of violence on a spouse or family member in a domestic context.”
The Tribunal acted in accordance with the regulations and, having come to the view that domestic violence may have occurred, referred the matter to Centrelink. Centrelink invited the applicant to an interview. The interview was conducted by a qualified social worker. The applicant attended with a colleague, a Mr John Nizar Bilal, on 18 January 2006. Mr Bilal has sworn an affidavit in these proceedings and says that he attended for moral support as a friend. The interpreter who was present was not Lebanese; she may have been a Palestinian or she may have been an Iraqi, or she may have been a Palestinian living in Iraq. She was, however, qualified and held appropriate certificates, with a lengthy period of service as an accredited interpreter.
There is no record of the interview before the officer from Centrelink. After it had concluded the officer provided an independent expert's opinion to the Tribunal which can be found at many places in the Court Book, but for convenience at [CB 182]-[187]. The conclusion reached by the expert at [CB 187] was that the applicant had not suffered relevant domestic violence and the reasons given were:
“Violence from NT causing AEZ to fear for, or to be apprehensive about his personal well-being or safety, is not in evidence. He experienced occasional episodes of verbal abuse from his spouse, and an occasion of a heated argument in which she caused an ashtray to hit him. He has given evidence of feeling degraded and humiliated, in response to the treatment he received from his mother-in-law. He experienced fear of harm due to his brother-in-law's threat. He suffered emotional and psychological effects at the time in response to his situation as detailed by Dr Abu-Arab. However, the evidence does not establish collusion by Mr AEZ's wife with the abusive behaviours of her mother and brother. There is nothing to demonstrate Mr AEZ suffered sustained effects, consistent with emotional or psychological abuse from his spouse. He has maintained his work and living situation and adjusted to life in Australia, without any specialist intervention.”
It is interesting to note that no letters were written to the Tribunal concerning the quality of the interpretation at this interview until after a s.359A letter (to which the domestic violence report form was attached) had been written to the applicant by the Tribunal on 16 February 2006. Thereafter the applicant's solicitor/migration agent wrote to the Tribunal on 27 March 2006. In the letter of 26 March 2006 the agent said [CB 190]:
“In relation to the interview with the translator, we say that Mr AEZ and Mr John Bilal who attended, clearly indicate that the translator was not adequate or appropriate in the circumstance and certainly there were times on numerous occasions where Mr John Bilal had to interrupt the interpreter to reinterpret the question but this continued throughout the interview. We say in relation to the interview that occurred there could be information which was not relayed through the interpreter appropriately and in the circumstances we request that our physiologist report should therefore succeed against the independent expert for assessment and as we stated above the interpreter was not adequately interpreting the information correctly and as we have been instructed the interpreter was of Iraqi background and Mr AEZ is from Lebanon and there were numerous errors and because of the lack of appropriate interpretation we say that the report is not be accepted by you in determining this matter.”
The letter goes on to make a request for another independent expert report.
The Tribunal took this complaint seriously and there is found in the Court Book a series of emails between the Tribunal and Centrelink including a formal response found at [CB 197]-[198]. That formal response gave details of the qualifications of the interpreter and some indication of what took place at the interview itself:
“At the commencement, during and subsequent to the interview, Mr AEZ was invited to raise any difficulties, including any communication or interpretation problems, with us. At no time during or after the interview did Mr AEZ indicate that he had any difficulties understanding or communicating.
Mr Bilal asked three or four times towards the end of the interview if he might add something. Mr AEZ expressed his agreement, with Mr Bilal assisting him in this way. Mr Bilal advised as to information he considered ought to be taken into account, Mr AEZ agreed with what his friend said, although Mr AEZ had not stated these things, himself, at the first instance.
…
Mr Bilal did not clarify the interpretation of Mr AEZ's communications, nor those of the Arabic interpreter. On one occasion only towards the end of the interview he interjected to advise that Mr AEZ had said a different word to the one interpreted - present tense rather than past tense. Mr AEZ agreed with his friend that he had intended to communicate the present tense. This was taken by the social workers to have been a very slight mis-hearing by the Arabic interpreter of a poorly enunciated word by Mr AEZ. When discussed with Mr AEZ, he did not indicate a general problem, with the interpretation. Nor was the issue thought to have any significance, to the overall assessment.
Mr Bilal indicated that he thought it would be better if the interpreter was of the same cultural background as the customer. This issue was discussed with the Centrelink Migrant Liaison officer, but is not considered to be a necessary prerequisite for professional and appropriate interpretation.
Mr AEZ did not raise any concerns, at the conclusion of the interview, when he was given an opportunity to do so…”
The report from Centrelink, which is also found at [CB 205] and [206] where the writer's qualifications are inserted, concluded (by inference) that there was no necessity for a further interview.
The Tribunal in its findings and reasons considered the problem of the interpretation at the interview with the independent expert at [CB 219]. It also considered the request for a further assessment:
“The visa applicant complained about the interpreter used at the interview held on 18 January 2006. The visa applicant states that throughout the interview his friend had to constantly reinterpret questions and not all information was relayed through the interpreter. Also, the interpreter was of a different background to the visa applicant, who is from country B. In the response of 18 May 2006 the expert refuted the visa applicant's contention that there were numerous errors with the Interpretation in the independent assessment interview of the visa applicant …
The expert's response was sent to the visa applicant who reiterated the concerns already expressed about the interpretation. The Tribunal has decided not to ask the independent expert to conduct a further assessment. The visa applicant's concerns set out in his letters of 27 March 2006 and 27 June 2006 were referred to the independent expert who has responded by providing information about the qualifications and experience of the interpreter, and has indicated that the visa applicant was encouraged a number of times to raise any difficulties and communication problems but at the time of the interview, he did not indicate that he had any difficulty understanding or communicating. The Tribunal is satisfied that the expert has been fully apprised of the concerns that the visa applicant has raised about the interpretation and the expert does not alter her opinion and has not offered another assessment. It is the expert's view that her assessment ought to be accepted in determining the matter.
The Tribunal has considered all the evidence before it and has found that the independent expert has provided an opinion that is properly made. In the light of this finding the Tribunal is satisfied that a further assessment is not required.”
The Tribunal, as it was required to do by the regulations, accepted the report of the independent expert and declined to alter the decision under review.
The applicant seeks review of the decision of the Tribunal solely on the basis that it fell into jurisdictional error by not providing him with procedural fairness at the interview. There are a number of problems with this submission. As Ms McWilliam says in her helpful written submissions it is now well established that there can be occasions where the incompetency of interpreters prevents an applicant from being given a proper hearing as required by the Migration Act 1958: Perera v Ministerfor Immigration (1999) 92 FCR 6; Long v Ministerfor Immigration (2000) 106 FCR 183; Ismail v Ministerfor Immigration [1999] FCA 1555 and Arif v Ministerfor Immigration [2002] FCA 1053. But as she also points out, a breach will only arise where the errors in translation relate to matters critical to the presentation of the applicant's case and the errors can be said to have influenced the Tribunal's findings: Mazahr v Ministerfor Immigration [2000] FCA 1759 per Goldberg J at [37].
But in this case the interpretation problems were not interpretation problems at the hearing before the Tribunal. They were interpretation problems at an interview with an independent expert. The applicant sought to establish that these problems were so substantive that it meant that the independent expert's report should be impugned. He sought to do this by providing an affidavit from himself and another from Mr Bilal. To my mind, if this evidence was to have any bearing at all upon a decision it would have to prove to my satisfaction that matters critical to the relevant issues before the expert were misinterpreted, or not interpreted, so that the expert was unable to make up her mind or provide a genuine opinion as to those matters.
In this particular case the matter in issue was whether or not the alleged domestic violence which was suffered by the applicant came from the spouse or from other persons. There is nothing in either the affidavit of the applicant or Mr Bilal which deals with this issue at all. There are generalised complaints that the interpretation was incorrect, but there are no specifics, except for one in the affidavit of Mr Bilal which seems to have no relevance to the matter in issue. I am unable to be satisfied that the evidence produced by the applicant allows me to impugn the bona fides of the interview process.
I am asked to review a decision of the Tribunal. What the Tribunal did was obtain evidence by way of letter from the applicant and from the independent expert about the applicant's complaints concerning the interpretation. That evidence was received and quite clearly considered by the Tribunal. The Tribunal then made a finding of fact that it preferred the evidence of the independent expert about what occurred at the hearing, and concluded that the independent expert's report should be accepted. In doing so the Tribunal acted in accordance with its mandate and I cannot see how the court can interfere. It had sufficient evidence to come to the conclusions which it did. And even if this court did not agree with those conclusions it could not enforce its own view of appropriate action upon the Tribunal. To my mind the applicant would have had to show the Tribunal failures in translation going to the essence of the claim that the domestic violence was perpetrated by the spouse herself. He did not do so.
In the circumstances, there being no other ground upon which the applicant seeks review, I am obliged to dismiss this application. I am grateful to the advocates for the helpful way in which they have presented their arguments.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 6 November 2007