SZLMN v Minister for Immigration
[2009] FMCA 582
•30 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 582 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal failed to comply with s.425 of the Migration Act by not providing an interpreter for the primary applicant at the Tribunal hearing – whether Tribunal failed to consider an integer of the applicant’s claim – whether breach of s.424A. |
| Migration Act 1958 (Cth) ss.36, 91R, 422B, 424, 424A, 425 |
| Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 |
| Applicants: | SZLMN & SZLMO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3205 of 2007 |
| Judgment of: | Barnes FM |
| Hearing dates: | 1 July 2008, 3 September 2008, 1 December 2008 |
| Date of Last Submission: | 16 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2009 |
REPRESENTATION
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Counsel for the Respondent: | Mr M Cleary |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal made on 11 September 2007 in Tribunal case file number 071428985.
A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 20 April 2007.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3205 of 2007
| SZLMN & SZLMO |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal signed on 11 September 2007 and handed down on 20 September 2007 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, citizens of South Africa and husband and wife, lodged applications for protection visas on 26 March 2007. Each applicant completed Part C of the protection visa application forms in which they each made claims to be a refugee.
In her protection visa application the wife (the second applicant in these proceedings) indicated that she spoke, read and wrote English, Zulu and Xhosa (in that order) and responded “No” to the question “If you are called for an interview, will you need an interpreter?” The applicant wife claimed that she moved from a tribal area in Eastern Cape in South Africa to Johannesburg in December 2003. She claimed that in accordance with the customs in her tribe, her family wanted to sell her to somebody. Hence she had run to Johannesburg. The applicant husband (who was from Pakistan) protected her and they married in 2007. She claimed that her family heard from someone that she had married a Pakistani and that her brother and his friend attempted to murder her husband and kidnapped, tortured and detained her. She claimed that she managed to escape, but that when her husband reported this to the police station the police did not want to become involved in a tribal matter. The applicant claimed to fear that if she returned to South Africa she and her husband would die at the hands of tribal people and family and their supporters because she had exercised her choice in marriage rather than being sold and that her husband was also wanted. She claimed that the authorities could not and would not protect them because the police did not get involved in tribal matters which had their own “Rules and Regulations”. She also claimed that if the police did arrest a person, that person would be more dangerous when released on bail and that they did not have any protection in South Africa. I note that in the proceedings before the Tribunal it was clarified that the “brother” was in fact the applicant wife’s cousin, but that he and the applicant were raised together.
In his protection visa application the husband (who is the first applicant in these proceedings) indicated that in order of preference he spoke, read and wrote English, Urdu and Punjabi and marked the box “No” in response to the question “If you are called for an interview, will you need an interpreter?” He claimed that he left South Africa because of his wife and because his life was not “saved” (sic). He claimed that after he married “attempted murder done by my wife family for me, because I love my wife”. He stated that complete information was contained in his wife’s Part C. The applicants did not have a migration agent assisting them at this time.
The Department wrote to the wife on 10 April 2007 acknowledging receipt of her application, which was said to include her husband as a member of her family unit (although the Court Book contains a separate Part C protection visa application form completed by the husband). However in reasons for decision the delegate of the first respondent summarised the claims made by each applicant, noting that while the husband made specific claims in his protection visa application, he mainly referred to his wife’s claims. The delegate found that the husband had effective protection in a third country under s.36(3) of the Migration Act 1958 (Cth) having a right to enter and reside in Pakistan as a foreigner of Pakistani origin.
The delegate was not satisfied that the applicant wife and her husband had an objective fear of harm on the basis of their inter-racial relationship or that the South African authorities persecuted or sanctioned persecution against persons for reasons of marriage outside tribal membership or marriage to persons born outside South Africa. The delegate found that the harm the applicants claimed to fear was purely of a private nature, that the South African authorities were able and willing to protect them adequately against any acts of harm that may be perpetrated by individuals and that they were reasonably able to relocate within South Africa.
The applicants sought review by application lodged with the Refugee Review Tribunal on 18 May 2007. In the application for review the wife indicated that she needed an interpreter in the Xhosa language and the husband indicated that he needed an interpreter in the Urdu language. The Tribunal acknowledged receipt of the application by letter sent to the applicant wife, in which it stated that her husband had been included in the application as a member of her family unit who had also been refused a protection visa. No issue was taken in these proceedings in relation to the fact that the husband made a separate protection visa application.
By letter dated 29 May 2007 the Tribunal invited the applicants to a Tribunal hearing to be held on 3 July 2007. The applicants returned a completed response to hearing invitation form in which they indicated that they wanted to attend the hearing, that they did not want separate hearings, that the wife wanted a Xhosa interpreter and the husband wanted an Urdu interpreter. In response to the question “Do you have any special needs for the hearing (eg wheelchair access, male or female interpreter)” they indicated “Any interpreter”.
On 27 June 2007 a solicitor from the HIV/AIDS Legal Centre Incorporated (HALC) wrote to the Tribunal stating that HALC now acted for the applicants and that both the wife and husband had recently been diagnosed as HIV positive. A letter from Dr Ealing of the Albion Street Centre dated 29 June 2007 was provided in support of the application. The applicants sought a postponement of the Tribunal hearing. The Tribunal agreed to postpone the hearing until 14 August 2007.
HALC also advised the Tribunal that initially HALC had been “unable… to properly communicate with [the applicants] due to the language issues involved” and had subsequently organised an interpreter to assist with the applicant’s case.
On 9 August 2007 the Tribunal received a further completed response to a hearing request form signed by the applicant’s adviser Mr Brady of HALC, indicating that the applicant wife wanted the Tribunal to take evidence from a Ms Saloner. However on that form the responses “No” were given to the question “Do you need an interpreter?” and to the question “Do you have any special needs for the hearing?”. The circumstances in which this form was completed are discussed further below, in relation to the claim that there was a breach of s.425 of the Migration Act 1958 (Cth).
The Tribunal held a hearing on 14 August 2007. A transcript of the Tribunal hearing (in English) is before the Court as an annexure to the affidavit of Iain Stewart Brady affirmed on 19 December 2008 and filed on 23 December 2008. The Tribunal provided an Urdu interpreter for the husband (the language requested by the husband in the review application and the first response to hearing form). No interpreter was provided for the primary applicant, the wife. The conduct of the hearing is also discussed further below.
The applicants provided the Tribunal with a number of supporting documents, including personal information, references and a letter of support from the Director of Clinical Operations at the Albion Street Centre which recounted the claims to fear persecution made by the applicant wife. HALC provided a written submission, supporting country information and statutory declarations dated 14 August 2007 sworn by each of the husband and wife.
After the hearing HALC provided a further written submission addressing the claims of the applicants, additional country information and a further statutory declaration from the applicant husband that referred to his own experiences and claimed that he was in fear of returning to South Africa as he believed that the applicant’s brother and his associates would try to kill both his wife and himself. He also claimed that his wife would not be safe in Pakistan as a Christian black African and that he (a Pakistani Muslim man) would be targeted for their inter-religious marriage. Also provided to the Tribunal was a copy of an email from the husband’s former employer in South Africa that stated that people had come to the workplace looking for the husband. The husband stated that he believed that the Tribunal had the contact details for his employer, who would confirm his statement if the Tribunal contacted him.
The applicants’ adviser provided the Tribunal with information relating to the level of violence and crime in South Africa and the claimed inability of the couple to live together as a married couple in Pakistan and a further letter from Dr Ealing, the Director of Clinical Operations at the Albion Street Centre, outlining the applicants’ health status and prognosis. On 30 August 2007 the adviser provided further written submissions in relation to issues arising out of the applicants’ need for treatment for HIV and for possible tuberculosis. That submission also addressed the wife’s vulnerability to being located in South Africa by her family.
The Tribunal decision
In its reasons for decision the Tribunal outlined the claims and evidence before it. In relation to the conduct of the hearing the Tribunal stated:
The Tribunal asked the first named applicant [the wife] if she could understand English. The first named applicant indicated that she could and if there were any concerns she would ask the Tribunal to speak slowly or repeat the question. The applicants’ representative indicated that the first named applicant could understand English and the hearing could proceed. The Tribunal asked the second named applicant if he could understand the interpreter. The second named applicant indicated he could and there were no concerns with the interpreting. The Tribunal then read out the definition of refugee that is set out in the International Refugee Convention. The applicant’s indicated they understood the definition.
The Tribunal summarised the oral evidence given by Ms Saloner in the absence of the applicants, the oral evidence of the applicants and documents provided after the hearing. It referred to country information in relation to the situation in South Africa, including information on HIV treatment. It referred to the fact that the applicants had provided statutory declarations, but did not describe the contents of such statutory declarations.
In its findings and reasons the Tribunal found that the wife was a national of South Africa. It stated that there were inconsistencies between her oral evidence and the claims in her protection visa application. It did not explain its concerns in that respect, but stated that it considered that those inconsistencies were “covered at the hearing” and that it would rely on the oral evidence given by the wife at the hearing, which she was said to have claimed was true.
The Tribunal summarised the wife’s claims as claims that she was a tribal woman whose labour was traded by her brother; that she was to be sold into marriage; that she was abducted and beaten by her brother who was a taxi driver and as such had links to a criminal network and that this would put her at risk. She claimed that she had married outside her tribal group and was at risk from her brother and also that she suffered discrimination because her husband was an immigrant in South Africa, she was a Christian married to a Muslim man, a woman in South Africa and a Xhosa woman.
The Tribunal accepted that the applicant wife was a Xhosa woman married to a national of Pakistan who was a citizen of South Africa. It also accepted that she had relocated from her tribal area to Johannesburg to work, that she had attended school there and that her brother was a taxi driver.
It accepted that the applicant wife had met and married her husband in Johannesburg in January 2007 and that although they did not tell any of her family her brother found out. The Tribunal accepted that soon after the marriage the brother “found them in Johannesburg and assaulted them”. The Tribunal referred to the fact that it had sighted police records and medical reports dated 20 January 2007 showing that both applicants had suffered some injuries that were treated and that they were discharged on the same day.
The Tribunal recorded that at the hearing it “put to the applicants” that the assaults were a one-off “outrage at the marriage and may not lead to further threats” and that the applicants stated that they had spoken to third parties in South Africa and that the threats would continue. (In fact the Tribunal put this issue to the husband (transcript p 39) who replied that they did not know whether the applicant’s sister (who had helped her) was dead or alive, that a friend told him that people were looking for those who helped them and that he thought that his wife’s brother was involved in the killing of a friend. He had described the help given by that friend in his first statutory declaration). The Tribunal described (without comment) an email from the husband’s former employer stating that the wife’s brother had continued to seek them out and had threatened his staff.
The Tribunal recorded that the wife’s evidence was that her family found out about her marriage through her uncle who worked at the Department of Home Affairs, that she thought her uncle had seen them registering their marriage at the Department of Home Affairs and that this was the only way her family could have found out about the marriage. The Tribunal accepted that the wife’s uncle may be employed at the office of the Department of Home Affairs in Johannesburg, but found that there was “scant evidence” as to what his position was or whether he could use his position to find the applicant wife and then have the motivation to notify the applicant’s brother of her whereabouts. The Tribunal found that any fear that the uncle would use his position to cause harm to the applicant wife was remote. It found that there was a “remote chance” that the uncle may be able to provide information to the wife’s brother.
It accepted that the applicants had suffered an assault from the wife’s brother and his associates. It referred (without further comment) to the applicant’s evidence that the wife’s brother would find her and use his associates to harm her.
The subsequent Tribunal findings are described as they appear sequentially in the reasons for decision. The Tribunal found that “there is no discriminating (sic) failure by the South African authorities to provide state protection”. It then stated that it considered that the assault suffered by the applicants did not constitute serious harm within s.91R(1)(b) of the Migration Act 1958 (Cth) and that the brother had “had the opportunity to inflict serious harm on the applicants and did not do so”. The Tribunal referred to the email from the husband’s employer stating the brother was looking for them and had threatened his staff. It accepted that the applicants feared harm from the brother. It continued:
The persecution feared is not being perpetrated by the authorities in South Africa or their agents. The applicant is fearful of the acts of her brother and his associates. The applicants sought the protection of the authorities. The South African government has laws and processes outlined in Country Information for the protection of victims of family violence. The police took statements and referred the applicants for medical examinations. The evidence indicates that the South African authorities did move to protect the applicants. The first named applicant’s oral evidence is that after she spoke to the police they told her to ring them if her brother attempts to come near them. The Tribunal refers to Country Information above which outlines the policy and procedures that South African police follow. The evidence from both of the applicants is that the South African police followed those procedures. The Tribunal finds that the authorities have provided State Protection to the applicants. The Tribunal has noted country information above. The Tribunal has considered all the country information about the difficulties of the police force and implementation of the orders. The Tribunal finds that although the police force in South Africa is struggling it is functional and measures have been taken to protect the applicants. The police force did provide a service to the applicants as per the guidelines. In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”. Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.
The Tribunal finds that the (sic) South Africa is willing and able to protect its citizens.
The Tribunal accepts the first named applicant’s evidence that her brother who is the perpetrator of violence against the applicants is a taxi driver. The Tribunal has noted the Independent Country evidence provided by the applicants and cited above by the Tribunal. The evidence shows that taxi drivers are prone to violence. The Independent Country information indicates that the violence is of a criminal gang nature, it relates to local routes, rival gangs trying to control those local routes and the revenue that comes from them. The violence associated with taxi drivers is in relation to rival taxi associations and is local in nature. The Country Information indicates that the violence is between rival taxi gangs over local routes. The first named applicant and the witness Ms Saloner both stated that the first named applicant’s brother’s sphere of influence would be between Eastern Cape and Johannesburg. The Tribunal finds that any influence the first named applicant’s brother may have is localised in nature.
The Tribunal finds that the harm which the first named applicant is concerned about is localised.
The Tribunal finds that the state is willing and able to protect the applicants. …
The Tribunal continued that “furthermore” it would be open to the applicants to relocate to another city in South Africa, such as Cape Town or Durban. It had regard to the applicants’ youth and the fact that they had already shown resilience. It observed that the wife had relocated from her tribal area to Johannesburg, effectively cutting ties with her tribal background by marrying outside her tribal group and that she had lived in Johannesburg for some years. It observed that the problems that the wife encountered were when her past tribal ties intruded, for instance when she returned to visit the family at six-monthly intervals or when her brother sought her out in Johannesburg. The Tribunal found that the wife was by her own evidence educated, that she had chosen her own husband and that when she was threatened and beaten she had escaped and sought the protection of the police.
The Tribunal also had regard to the fact that the husband was highly skilled, that he had qualifications as an engineer and had worked successfully in his field in Johannesburg and in other countries. It found that the applicants both spoke English and other languages and that their skills would enable them to successfully relocate to another city in South Africa. The Tribunal also found that while the medical report from the Albion Street Clinic stated that both applicants “have HIV”, they were otherwise well and that with appropriate treatment for HIV they could gain employment and be self-sufficient and contribute positively.
The Tribunal observed that from “the applicants’ evidence” it appeared that the only harm claimed was from the brother of the applicant wife and his associates, although through their representative they had raised other claims based on membership of particular social groups. The Tribunal considered first the claim that the wife would suffer as a party to an inter-racial marriage, noting that in the hearing the applicants referred to the husband as “both coloured and Pakistani”. The Tribunal found that country information on the position of coloureds and Asians in South Africa indicated that in large cities in the Western Cape coloureds were well represented and suffered little discrimination and that Asians were not discriminated against. The Tribunal accepted country information to the effect that although inter-racial marriages were not the norm, the applicants would not suffer any real persecution due to being in an inter-racial marriage. It found that the country information referred to by the applicants in relation to the treatment of foreigners referred mainly to foreigners and immigrants from other African states. It preferred the independent information which stated that Asians in South Africa did not suffer persecution. The Tribunal found that the wife would not suffer any persecution for a Convention reason due to being a party to an inter-racial marriage or by reason of being married to the husband who was Asian or coloured.
The Tribunal also found that the wife would not suffer any persecution or discrimination as a Christian woman married to a Muslim man, having regard to the reasons given and country information that South Africa had passed and upheld laws on discrimination.
The Tribunal then considered the claim that because of her diagnosis of HIV the wife was “a member of a particular social group and is in a special risk in any consideration of relocation”. It referred to the submissions that suggested that relocation would be difficult for the applicants given their diagnosis of HIV and possible tuberculosis. The Tribunal found as follows:
Independent country information cited above states that in South Africa there is a public and private health sector which provides HIV care and treatment. The South African government has put in place programmes to provide services to their citizens. The Independent Country Information also indicates that HIV care is more accessible in the wealthy Western Cape area. The private health sector is able to provide a top level of care and the public sector provides care however is struggling. The [husband’s] education and skills would ensure that he would be able to relocate and earn a living which would ensure that he could provide for all the medical needs of him (sic) and the first-named applicant, his wife. The [husband’s] oral evidence is that he loves his wife and wants to get the best care available for her. Independent Country Information cited above states that first world medical care is available in South Africa. The [husband] has provided the Tribunal with evidence of his specialised skills and work history. Independent Country Information above indicates that if the applicants can access private health care in South Africa then they would be getting a level of care that is at the highest level. The Tribunal finds that the [wife] through her own skills and marriage to the [husband] would be able to access that medical assistance particularly if the applicant relocated to a city such as Cape Town. The Tribunal finds that the [wife] is not being discriminated against or denied health care by the South African authorities. The [wife] will be provided with the same level of health care as all South African citizens.
Having regard to South African laws and policies designed to protect women in all levels of society, referred to in the reasons for decision, the Tribunal found that the wife was “not being” discriminated against or persecuted by the South African authorities because she was a woman or “being discriminated against” or denied protection because she was a Xhosa woman or a woman in South Africa. The Tribunal concluded generally that there was no real chance that the wife would face persecution as the result of her membership of particular social groups, however defined.
The Tribunal then addressed the reasonableness of relocation, referring to the decisions in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, SZATV vMinister for Immigration and Citizenship and Another (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 51.
The Tribunal stated that in response to the issue of relocation being put to the applicants “the applicants’ evidence is that they would not be safe as the [wife’s] brother would use his contacts in the taxi industry to find them. The Tribunal has already found that the fear posed by the [wife’s] brother is of a localised nature”.
It continued:
Regarding relocation in South Africa, the civilian authorities maintained effective control of the security forces. Where communal violence occurred the South African authorities sought to end it at the earliest opportunity. The South African Constitution guarantees South African citizens the right to move freely throughout the territory of South Africa. There are coloured and Asian communities all over South Africa, and citizens are able to relocate to other parts of South Africa. Low-profile people could move elsewhere in South Africa without being traced. Well-educated and readily employable persons could relocate to another part of South Africa.
The Tribunal was not satisfied that the wife would encounter any difficulty in the reasonably foreseeable future for a Convention reason if she moved to other parts of South Africa where she was not known. It found that there was no reason that she could not start a “new life” in another part of South Africa and develop new social circles. The Tribunal was satisfied that the practical realities were such that the wife was able to relocate without difficulty and that relocation was both a reasonable and a practical option for her. The Tribunal continued that it was satisfied that relocation was a “real option” and that the wife had “genuine access to meaningful protection in her country of origin”. On the evidence before it, it was satisfied that it was reasonable for her to live elsewhere in South Africa and to avoid the harm she feared. Hence it was not satisfied that the wife had a well-founded fear of persecution for Convention purposes.
In relation to the husband the Tribunal findings were as follows: “The [husband] applied as a member of the [wife’s] family unit and his application is reliant on the [wife’s] claims. As the Tribunal has found that the [wife] is not a person to whom Australia owes protection obligations the Tribunal is unable to find on the basis of the material before it that the [husband] is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. The Tribunal was not satisfied that the applicants were persons to whom Australia has protection obligations under the Refugees Convention and found that they did not satisfy the criteria for a protection visa.
This application
These proceedings have a somewhat protracted history. The applicants sought review by application filed in this Court on 16 October 2007. At that time they were self represented. In the application they contended generally that the decision was unfair and infected with jurisdictional error and stated that the wife required a Xhosa interpreter and the husband required an Urdu interpreter. At the first directions hearing the registrar was apparently advised that if a Xhosa interpreter was not available the wife would like a Zulu interpreter. When the matter first came before me for hearing, the hearing was adjourned as a Xhosa interpreter was not available. The staff of the Federal Court registry subsequently located an English speaking interpreter in South Africa who speaks both Xhosa and Zulu. A hearing was conducted with the telephone assistance of the interpreter. An Urdu interpreter for the applicant husband was present in Court.
In written submissions the applicants took issue with the fact that the Tribunal hearing was conducted in the English language in the absence of an interpreter in the Xhosa language. It was contended that the wife only understood a little English and that she was unable to explain fully to the Tribunal why her brother would be able to find her in South Africa and the police would do nothing to help her. After the hearing each of the parties was given the opportunity to make further written submissions addressing relevant legal issues.
However, on 7 October 2008 the applicants filed an application in a case seeking leave to file and serve an amended application and a further hearing, as they had obtained legal representation from HALC. They were granted leave to file and serve an amended application. The matter was listed for a further hearing, at which time the applicants were legally represented. The applicants now rely on an amended application filed on 7 October 2008 which raises three grounds. They also rely on affidavits of the husband sworn on 7 October 2008 annexing country information not included in the Court Book and an exhibit consisting of another item of country information. Initially they sought to rely on an affidavit of Minako Aresh annexing a partial transcript of the Tribunal hearing. Counsel for the first respondent raised a number of issues in this respect. Subsequently, with leave of the Court, the applicants filed and relied on a complete transcript annexed to an affidavit of Iain Steward Brady, solicitor, sworn on 19 December 2008 and a further affidavit of Mr Brady of the same date in relation to his completion of the second response to hearing form provided to the Tribunal. The parties each addressed this material in submissions.
Interpreter issues
Is it convenient to consider first the third ground in the amended application, which is that the Tribunal did not afford the applicant procedural fairness by failing to provide her with an interpreter in the Xhosa language. It is clear that this ground relates only to the wife. An Urdu interpreter was provided for the husband and no issue was taken in that respect.
The particulars to this ground are that the applicant wife was not fluent in the English language; that the Tribunal was aware that her first language was Xhosa; she had previously requested a Xhosa interpreter; that there was no Xhosa interpreter at the Tribunal hearing; and that due to the lack of an available interpreter the applicant was unable to convey to the Tribunal that which she wished to convey and unable to comprehend the Tribunal’s questions adequately.
While this ground is expressed in terms of procedural fairness, in submissions the applicant placed reliance on s.425 of the Migration Act which requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. It was contended that the requisite “meaningful opportunity” to appear to give evidence and present arguments under s.425 (see Allsop J in SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14 at [53] and SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923 at [27] per Graham J) had not been provided. In light of s.422B of the Act and the manner in which this ground was argued I have considered whether there was a failure to comply with s.425 of the Act.
It was submitted that the wife was unable to comprehend that the Tribunal held the view that her brother’s powers to locate her were of a localised nature and was unable to make meaningful comment in response to counter the Tribunal’s view in this matter. It was also submitted that while the Tribunal found it significant that the applicants could relocate in South Africa, at the hearing the Tribunal had been unable to put this issue to the wife properly and was unable to receive meaningful comment from her in relation to this matter.
It was acknowledged for the applicants that the wife indicated on her protection visa application that she could speak, read and write English, Zulu and Xhosa and that English was her language of preference. However it was pointed out that in these documents, completed without the assistance of a migration agent or interpreter, the applicant stated the following in response to a question about why she left her country: “… I used to go to my trible (sic) after every six months. Actully (sic) in my tribe when a girl born, trible (sic) people very happy because they used to sale (sic) girls to who got money. When I was in Johannesburg in (sic) made a boyfriend. His name [name of the applicant husband], my family wants to sale me to somebody, then I was running to tribe to Johannesburg.”
It was said to be apparent from the protection visa application that the applicant was not fluent in English. It was submitted that her handwritten reasons for claiming protection showed clearly that she had a limited grasp of spelling, sentence construction and vocabulary. In addition, there was said to be little detail of her claims in the protection visa application. For example, there was no mention in the protection visa application of the claim that the wife escaped from her brother (cousin) with the assistance of her sister who freed her and gave her money, or of the claim that she was seen by her uncle at the time of her marriage, that she and her husband were forced to relocate to Pretoria and spent one month in hiding and that her brother had criminal connections through his occupation that gave him the opportunity to locate the applicants throughout South Africa. It was pointed out that it was only after the applicants obtained legal representation that they provided the Tribunal with detailed statements.
It was submitted that the paucity of detail in the applicant wife’s protection visa application and the difference in the statutory declaration later provided should have indicated to the Tribunal that the wife suffered from an inability to give evidence and present arguments to the Tribunal to a level sufficient to satisfy the requirements of procedural fairness as discussed in SZGYM and Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188.
The solicitor for the applicants also referred to the fact that in the review application and original response to hearing invitation form each of the applicants had nominated that they required an interpreter. The uncontested affidavit evidence of Mr Brady, the solicitor who acted as the migration agent for the applicants during part of the review by the Refugee Review Tribunal, is that he had been advised by the Tribunal registry that there was “no interpreter acceptable to the Tribunal for the Xhosa language in Australia”. He was unaware that an interpreter could be procured over the telephone and that the Tribunal hearing could be conducted in that way. He was also unaware that a response to hearing form had been lodged with the Tribunal by the applicants before he acted for them. For these reasons, when he submitted a response to hearing form, he indicated that the wife did not need an interpreter.
The Tribunal elected to proceed in the absence of a Xhosa interpreter. The Tribunal member (not the applicant wife as the Tribunal stated in the reasons for decision) suggested that “they” would speak slowly and the wife could ask for things to be repeated. The following exchange occurred at (transcript pp 2 – 3):
Tribunal:… Okay. Now, can I just check. I understand the applicant understands English.
Applicant:Yes, I understand, but I don’t understand very well and, yeah, I see some people talking very fastly (sic) and I can’t understand very well, but I can understand a bit. If I don’t understand, I will ask him.
Tribunal:So that’s all right. If we speak slowly and if you’re represented to this hearing things need to be repeated. I understand --
Applicant’s adviser: I understand, member, that there was no, um, translator, um, appropriate to –
Tribunal:Mm.
Applicant’s adviser: -- um, the applicant’s language available – well, at all literally.
Tribunal:Yes, yes. No, that we have been trying. There have been some efforts. Um, the only alternate would be to adjourn, get someone on a phone line, um, we can see how we go.
Applicant’s Adviser: Yes.
Tribunal:And then if she has got you here.
Applicant’s adviser: Um, I, I believe, um, from my, um, experience of, um, ah, interviewing the applicant that, um, if relaxed she can be, um, well understood and understand well.
Tribunal:Okay.
Applicant’s adviser: Um, obviously the – this setting is somewhat more nerve-racking than, um, than, our, um, counselling lounge room but if we, um, persevere I believe we can get some good evidence.
Tribunal:All right. Right.
It is notable that when asked if she could understand English, the applicant wife’s response was qualified. She was not asked about her English speaking ability and, contrary to what the Tribunal recorded in its reasons for decision (see [16] above), she did not go on to indicate that “if there were any concerns she would ask the Tribunal to speak slowly or repeat the question”. These were suggestions made by the Tribunal to which the applicant wife did not respond.
The applicant husband had the assistance of an Urdu interpreter throughout the Tribunal hearing. The Tribunal member explained the role of the Tribunal and the definition of refugee to both the applicants. However when the member asked (transcript p 6) “Do you understand the definition?”, while the husband replied “Yes”, there was no response from the wife. The husband was not present when the wife gave evidence to the Tribunal.
While at the time of the hearing the Tribunal (and the applicant’s adviser) appeared to be of the view that the presence of the representative could ameliorate difficulties that the applicant may have, in these proceedings it was contended that it was apparent from the transcript of the part of the Tribunal hearing in which the applicant gave evidence that she experienced difficulty in comprehending the Tribunal’s questions.
The applicant also submitted that the Tribunal was on notice of the potential inability of the applicant to give evidence and present argument, in light of her statement that she had a limited ability to communicate in English and the fact that her representative had drawn attention to her further disadvantage within the stressful context of a Tribunal hearing. While the Tribunal elected to continue, apparently on the basis that the applicant would be able to ameliorate any difficulties she had in comprehension through asking questions and relying on her representative, it was submitted that this did not suffice, having regard to the statement by Graham J in SZGYM at [37] (in a situation where the interpreter provided was not an interpreter in an appellant’s first language):
In my opinion the appellant was denied procedural fairness in circumstances where, in the light of the interpreter’s comments, an adjournment was not ordered to facilitate the provision of an interpreter who could make himself understood in the appellant’s own dialect. The possibility of difficulties of comprehension could not properly be addressed by proceeding with an interpreter who did not speak the relevant dialect on the basis that if there were any difficulties experienced the appellant could ask for questions to be repeated and could raise her concerns as the hearing progressed.
It was submitted that the Tribunal’s decision to proceed in English which was not the applicant wife’s first (or even second) language in these circumstances, in the face of notice from the wife of an inability to communicate with the Tribunal (on the basis that she could raise any concerns she may have), constituted a denial of procedural fairness, a breach of s.425 and a jurisdictional error.
Reliance was also placed on what occurred at the Tribunal hearing when the applicant wife gave evidence. For example, in response to initial Tribunal questions at the hearing (in English) about her protection visa application, an exchange occurred (set out below at [89]). This was said to have demonstrated a lack of comprehension. The issue of whether the wife had help completing the protection visa application form was answered inconsistently. The solicitor for the applicants pointed to the fact that the applicant wife’s answers in relation to whether she had assistance in filling in the protection visa application were monosyllabic and limited to “yes” and “no” and that she in fact contradicted herself, initially stating that the forms were completed with assistance and then stating the opposite.
It was suggested that the questions put to the applicant in this respect were clearly simple questions framed in simple English and that her responses indicated (and should have indicated to the Tribunal) that she suffered from an inability to give evidence and to present arguments to a level sufficient to satisfy the requirements of procedural fairness (see SZGYM at [24]).
It was also said to be relevant that in contrast the husband, who was afforded an interpreter, was able to discuss further evidence and more complex aspects of the applicants’ claims with the Tribunal, including in relation to their HIV status and provide an elaboration of their statutory declarations which had been prepared at a time when they had legal assistance.
It was submitted that the applicant wife had suffered prejudice in being denied an interpreter in that she was unable to convey meaningfully to the Tribunal evidence as to her fears in relation to matters such as relocation, state protection and harm she might suffer due to her HIV positive status.
The applicants submitted that the applicant wife had raised the interpretation difficulties at the first opportunity presented (in her application to the Court), and that a failure to make submissions to this effect to the Tribunal following the hearing and prior to the decision was not factually relevant to the question of whether she had suffered an inability to communicate with the Tribunal. It was submitted that the Tribunal was under a duty to give the applicants a meaningful opportunity to present evidence and present arguments (SZGYM at [27]) and that any omission on the part of the representative for the applicants at the Tribunal hearing or thereafter did not cure any jurisdictional error committed by the Tribunal in this regard.
As discussed further below, based on the manner in which the hearing proceeded, it was submitted that it was apparent at times that the applicant wife was unable to understand the Tribunal’s questions and that on at least one occasion the Tribunal member discontinued her line of questioning due to the inability of the applicant to understand. It was submitted that when the Tribunal raised dispositive issues with the wife her answers indicated an inability to communicate in English sufficiently to make a meaningful comment or to convey to the Tribunal that which she asked to convey. In addition it was pointed out that the wife had not raised the significant issue of her HIV status with the Tribunal. The husband did so. It was submitted that with or without the other factors, her failure to do so should have indicated to the Tribunal that she suffered from an inability to give evidence and present arguments in English to a level sufficient to satisfy the requirements of procedural fairness (see SZGYM and Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188).
The applicant relied generally on the approach to the s.425 obligation to provide an interpreter taken in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [21] by Kenny J that:
… absent an interpreter, the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence, then, in my view, the Tribunal lacks the jurisdiction to continue the hearing before it unless it provides an interpreter …
Reference was made to the remarks of Goldberg J in Mazhar (at [31]), including the oft-cited comment that the invitation to a hearing “must not be a hollow shell or am empty gesture” (also see SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14 at [53] per Allsop J). Particular reliance was placed on SZGYM in which Graham J stated at [27]:
Whilst there is no provision in the Act dealing with the engagement of interpreters it is evident that a meaningful opportunity to give evidence and present arguments in the case of a person who is not fluent in the English language will only be afforded if an interpreter is present and it is evident that, subject to a reasonably accurate interpretation, that which the applicant wishes to convey to the Tribunal and that which the Tribunal wishes to convey to the applicant is fairly interpreted.
Before the applicants filed the complete transcript of the Tribunal hearing, counsel for the first respondent addressed in written submissions the possibility that a breach of s.425 was established based simply on the fact that a Xhosa interpreter was not provided, having regard to the decision of Graham J in SZGYM. The first respondent submitted that SZGYM was distinguishable because of differences in the circumstances.
In SZGYM an interpreter was provided by the Tribunal. The interpreter was a Mandarin interpreter who also spoke the Fuzhou dialect. In her response to hearing invitation form the appellant had asked the Tribunal to provide a Mandarin interpreter. Subsequently her husband told the Tribunal she preferred a Fuzhou interpreter. However at the start of Tribunal hearing the Mandarin/Fuzhou interpreter specifically raised with the Tribunal some concerns about the language he was interpreting and indicated that he did not feel that the Fuzhou dialect was the dialect of the appellant (see [20] and [30]). Despite these concerns, the appellant agreed with the Tribunal suggestion that the hearing continue using the Mandarin interpreter provided and that if they experienced any difficulties, questions could be repeated and concerns raised. The hearing proceeded. Graham J stated that the appellant in SZGYM did not have a proficiency in English language when the matter was before the Tribunal (see [24]). There was no evidence of any mistranslation or specific communication difficulties. There was no transcript of the hearing in evidence before the Court.
Nonetheless it was in that context that Graham J found at [27] that a meaningful opportunity to give evidence and present arguments in the case of a person who was not fluent in the English language would only be afforded if an interpreter was present and it was evident that, subject to a reasonably accurate interpretation, that which the applicant wished to convey to the Tribunal and that which the Tribunal wished to convey to the applicant was fairly represented. His Honour found that the failure to adjourn the hearing to provide an interpreter in the appellant’s dialect was a denial of procedural fairness and that the possibility of difficulties of comprehension could not properly be addressed by proceeding on the basis that if there were difficulties the appellant could ask for questions to be repeated and could raise her concerns in the hearing (at [37]).
The first respondent pointed to the fact that in SZGYM the interpreter had raised concerns about the interpretation and that this cast doubt on the agreement reached between the appellant and the Tribunal member to proceed regardless. It was submitted that Graham J found that the appellant was denied procedural fairness where, in light of the interpreter’s comments, an adjournment was not ordered to facilitate the provision of an interpreter who could make himself understood in the appellant’s own dialect.
The first respondent also submitted that in this case the evidence was “clear” that the applicant wife could understand and comprehend the English language, as she and her adviser indicated to the Tribunal. Her adviser told the Tribunal that the wife could understand English and the hearing could proceed and did not raise any issue during or after the hearing. In contrast, in SZGYM the interpreter raised concerns with the Tribunal about the differences in dialect and interpretation.
The first respondent submitted that the present case was close factually to the circumstances in Applicant S1586 of 2003 v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 1536 in which an interpreter was present but not used by the appellant. In that case Dowsett J found that as the appellant could understand English and had told the Tribunal this, the fact that no interpreter was used did not give rise to any jurisdictional error. His Honour found that there was no prejudice suffered by the appellant by the Tribunal conducting its proceedings in the English language (see S1586 of 2003 at [11] – [12]).
It is important to note that while these submissions were maintained by the first respondent, they were made at a time when there was no transcript of the Tribunal hearing before the Court. The applicants now rely not only on the approach taken in SZGYM but also on the evidence of what occurred in the hearing.
In response to the filing of a complete transcript of the Tribunal hearing, the first respondent submitted that, contrary to the applicant wife’s submissions, a fair reading of the transcript demonstrated that the applicant was given a meaningful opportunity to give evidence and present arguments and that there was no evidence that she had any difficulty comprehending the questions and answers that she gave. It was submitted that it was not enough to point to difficulties the applicant had in giving evidence or explaining her claims to the Tribunal as proof that she could not understand English.
Counsel for the first respondent reiterated that the applicant wife was represented and pointed out that when she was asked if she understood English she responded that if she did not understand she would ask “him” (this was said to be a reference to her representative). When the adviser was asked about the applicant’s ability to understand English, he responded that if she was relaxed “… she can be … well understood and understand well”. It was suggested that this exchange was consistent with the Tribunal’s discussion of the applicant wife’s ability to understand the proceedings in its reasons for decision and that the Tribunal had no statutory obligation to provide an interpreter in this case, particularly as the representative had specifically advised that the applicant could “understand well”.
The first respondent submitted that inconsistencies and differences between the protection visa application and later written statements were not evidence that the applicant wife was unable to give meaningful evidence or to understand English. It was pointed out that the Tribunal was entitled to test and challenge the evidence given by an applicant, even vigorously (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [30]) and that the applicant was represented and submitted that the Tribunal took steps at the outset of the proceedings to ensure that she understood English. It was noted that the applicant did not submit that she was suffering from some medical condition or not in a fit state to appear as a witness as a result of some medical condition (cf Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553).
It was submitted that the applicants could point to no prejudice suffered as a consequence of what occurred at the hearing and that no breach of s.425 or jurisdictional error of the kind identified in SZGYM had been established.
Consideration
It is necessary to have regard to all of the circumstances in determining whether the Tribunal failed to comply with s.425 of the Act and in that sense failed to accord procedural fairness to the applicant wife (see SZFDE and Others v Minister for Immigration and Citizenshipand Another (2007) 232 CLR 189 at [32]), bearing in mind that, as Graham J stated in SZGYM at [29]: “a fair hearing requires that there be no doubt at the outset that an applicant seeking review can comprehend that which is being spoken and interpreted.”
The primary visa applicant was considered by the Tribunal to be the wife. Hence the s.425 obligation arose in relation to the wife. The Tribunal assessed the husband’s claim as a claim as a member of his wife’s family unit and as reliant on her claims. No issue was taken in these proceedings in relation to the manner in which the husband’s application was processed by the Department or by the Tribunal.
In this case there is no question of whether an interpreter provided deficient or inadequate assistance (as to which see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230). No interpreter was provided for the wife.
It is well established that if an invitation under s.425(1) is extended to an applicant “where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal” (as Goldberg J said in Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]). As his Honour stated, the invitation “must not be a hollow shell or an empty gesture” (at [31]). Similarly, the obligation to extend a meaningful invitation to a hearing would not be satisfied if the conduct of the hearing in English without an interpreter was such that the applicant wife was unable adequately to give evidence and present arguments to the Tribunal.
As set out above, in SZGYM the appellant had requested a Mandarin interpreter in her protection visa application and response to hearing invitation but her husband had subsequently advised the Tribunal that they preferred a Fuzhou interpreter. The Tribunal provided an interpreter who spoke both Mandarin and Fuzhou (the dialect requested). However the interpreter advised the Tribunal that he did not feel that the Fuzhou dialect was the appellant’s dialect. It was in those circumstances that, notwithstanding that the appellant offered no evidence of any misinterpretation or specific inadequacies in communication and agreed to the conduct of the hearing in Mandarin (a language which she had claimed she also spoke), Graham J found that “a fair hearing requires that there be no doubt at the outset that an applicant seeking review can comprehend that which is being spoken and interpreted” (at [29]) and that the possibility of difficulties of comprehension could not be properly addressed on the basis that the appellant could “ask for questions to be repeated and could raise her concerns as the hearing progressed” (at [37]).
As the first respondent submitted, the circumstances in this case are not the same as in SZGYM. In this case, no interpreter was provided to the wife, apparently on the basis that a Xhosa interpreter was hard to find and she understood English. However the approach taken by Graham J is relevant to the situation of an applicant who speaks some English. The appellant in SZGYM claimed to speak Mandarin (which was the language used in the hearing) but in neither case was the language used the applicant’s first language.
In this case the applicant claimed to speak English, Zulu and Xhosa. The fact that the applicant had some facility in English (as the appellant in SZGYM had in Mandarin) does not of itself mean that the Tribunal met it s.425 obligation by conducting the hearing in English when the applicant had requested a Xhosa interpreter (see SZGYM and SZJZS v Minister for Immigration and Citizenship and Another (2008) 102 ALD 318 per Flick J at [29] – [34]).
The question must be whether by proceeding in that manner the applicant was denied an “effective opportunity” (SZJZS at [31]) to both give evidence and present arguments relating to the issues arising in relation to the decision under review. Such an opportunity will not be afforded if an applicant’s level of English is not such that he or she can comprehend and respond adequately.
I note in that respect, that s.424(7) contemplates the use of an interpreter where a person is not “proficient” in English. Obviously the proficiency in issue must be a proficiency to give evidence and present arguments relating to the issues arising in relation to the decision under review. It must be acknowledged that it may be difficult for a Tribunal to determine this issue in advance, particularly if an applicant and adviser are willing to proceed in English and the applicant has some English language ability. However such expressed willingness does not of itself absolve the Tribunal of the obligation to provide an interpreter if that is necessary for an applicant to have an effective opportunity to give evidence and present arguments. Whether it is necessary in a particular case will depend on a consideration of all the circumstances.
In this case, in light of the applicant wife’s prior request for an interpreter, her qualified response when asked if she could understand English and the nature of her early responses to Tribunal questioning, the circumstances are not such that it could be said that there was “no doubt at the outset” (SZGYM at [29]) that the applicant wife could understand well and be understood to such an extent that she had the necessary proficiency to participate in the hearing in English, notwithstanding her adviser’s expressed belief in that respect.
Moreover, even if it was open to the Tribunal to attempt to conduct the hearing in English in the face of such assurances (as would seem reasonable), it should have become apparent that while the applicant had some English, her English was inadequate for the purposes of taking a meaningful advantage of the invitation to give evidence and present arguments in relation to the issues arising in relation to the decision under review.
This is of particular significance in this case because the Tribunal relied “on the oral evidence given by the applicant at the hearing” in preference to her claims in her protection visa application. It outlined and addressed her oral claims. While it referred to receipt of statutory declarations from the applicants it made no mention of the content of the detailed statutory declaration sworn by the wife on 14 August 2007 or the husband’s supporting declarations of 14 August and 18 August 2007 in the context of determining the nature and extent of the wife’s claims based on fear of her “brother and his associates”. Hence what occurred in the hearing was critical, as the applicant wife’s evidence formed the basis for the Tribunal findings about the nature and extent of her claims.
The Tribunal also had regard to the wife’s oral evidence (and what she did not claim) in relation to complex issues such as relocation and state protection as well as on specific issues such as the position of the wife’s uncle, the extent of the brother’s influence and the manner in which he could locate her.
Given the circumstances in which the Tribunal decided to proceed with the hearing in English, it is also relevant to consider how the Tribunal addressed the possibility of difficulties in communication with and by the applicant and what occurred in the hearing. As set out above, when the Tribunal asked if the applicants understood the definition of refugee in the Refugees Convention, only the husband replied. There was no indication that the applicant wife understood this essential concept or that if she did so it was other than in very general terms. There is no suggestion that she was provided with a written explanation in a language other than English.
The Tribunal started its questioning of the applicant wife as follows (transcript p 14):
… Now, I have this stat (sic) declaration which you – or your representative has prepared and you have sworn. I haven’t had a chance to read it. This has only just been given to me. I will of course have a good look at it. Um, what I propose to do is to go through with you now your claims. As I said if you want me to repeat something or ask it again please just indicate.
The fact that the Tribunal had not had an opportunity to read the applicant wife’s statutory declaration provided on the day of the hearing (which may have been prepared in the more “relaxed” setting of the HIAC counselling lounge referred to by Mr Brady) contributed to the significance of the opportunity afforded to the applicant at the hearing. As indicated above, the Tribunal did not refer to or rely on the written claims in its decision. Hence it cannot be said that any deficiencies in the hearing were addressed by the opportunity afforded to the applicant to present her claims in writing.
It is notable that in the following extract the applicant wife appeared not to understand the Tribunal’s initial questions about whether she had help in filling in the protection visa application. It is also apparent that the Tribunal increasingly simplified its questions. When the Tribunal then asked the applicant about the extent of her claims and whether they were accurately reflected in her original application, she appeared to have significant difficulty in comprehending these questions, despite the simplification (transcript pp 14 – 16):
Tribunal:Now, I have, ah, the department file with me, the Department of Immigration and the tribunal filed, and included in that was your application for protection. Ah, the department’s decision.
Applicant:Yes.
Tribunal:Yes. Now, I have got the copy of passports here. I’ll return those now so we don’t forget.
Applicant’s Adviser: Thank you, member.
Tribunal:I would like just to ask some questions about the, ah, original application for protection.
Applicant:Yes.
Tribunal:Um, did you get help in filling out the form?
Applicant:What?
Tribunal:The original application --
Applicant:Yes.
Tribunal:--which is – I’ll show it to you so we don’t have any – this one.
Applicant:Yes.
Tribunal:Did you get help in filling that out?
Applicant:No.
Tribunal:So you did it yourself?
Applicant:Yes.
Tribunal:So you completed all those documents without any assistance?
Applicant:Yes.
Tribunal:And in that you say that you, um, speak, read and write English, um, Zulu and Xhosa. So that’s correct. That is all correct, this information?
Applicant:Yes.
Tribunal:Okay. Are they still your claims?
Applicant: .. (not transcribable)..
Tribunal: That’s all right. Ah, the member is asking, “Are the claims made in the original application still your claims?”
Applicant: I don’t .. (not transcribable) ..
Tribunal: Yes.
Applicant:Yes.
Tribunal:Okay?
Applicant:.. (not transcribable) ..
Tribunal:All right. We just have to clarify that they are your claims.
Applicant:Yes.
Tribunal: Um, is there anything which has been left out which you would now like to add to those claims? Any other reason for fear?
Applicant:I think I, I put everything in.
Tribunal: Put everything in?
Applicant:Yes.
Tribunal:Okay. So just for clarity, and as I said I haven’t had an opportunity to read your statement. Can you just tell me what your claims are?
Applicant:What is my claim?
Tribunal:Your story.
Applicant:My story.
Tribunal:Why are you in fear.
Applicant:Okay. Actually we are now here from South Africa because of my brother, he wants to kills us.
The applicant wife then started to explain her story, her discovery that her family planned to “sold” her, her marriage and the visit to the Department of Home Affairs to change her ID where she was seen by her uncle who took her fingerprints. The limits on her spoken English once she moved beyond relatively straightforward matters are apparent in the following evidence of the wife, which the Tribunal did not clarify with questions (transcript p 18):
Applicant:And when I comes (sic) out from the [Home Affairs] office I tell [my husband] outside, “Look, now my family, they know everything,” because my uncle he was taking my fingerprints. We go back home. [My husband] called his friends. It was no friends from the – maybe only seven or eight people. We make a small party and I have to go to work and then my time—
Tribunal:Mm.
Applicant:Because my brother-in-law, my boss, if I not going to work, my, my brother will ask me – my boss will ask my brother, “Why [applicant wife’s name] -- ”"
Tribunal:Mm.
Applicant:--she didn’t come to work.
Tribunal:Mm.
Applicant:They tried my brother – he is a taxi driver from my place, is then gave to Johannesburg – he is coming every Saturday, Sunday.
Tribunal:Mm-hmm.
Applicant:.. (not transcribable) .. so I’ll go to at 9 o’clock in the night-time, I was going to the night shift. In my lunchtime it was at --
At that point the Tribunal interrupted the applicant, to ask a question about the distance from her family’s home area to Johannesburg (transcript p 19):
Tribunal:Can I just ask you, how far is, um, Cape --
Applicant:To the --
Tribunal:To Johannesburg.
Applicant:By bus maybe 6 hour – maybe around 6 hour by bus but by taxi you can take - it’s depend on driver, how he’s driving fast. Maybe 4 hour --
Tribunal:Yeah.
Applicant:-- to 5 hours.
Tribunal:That’s it – it’s a long, long --
Applicant:Yeah.
Tribunal:-- journey.
Applicant:Yeah, not so much --
Tribunal:And you’re saying that your brother has that influence from that area to Johannesburg. He’s – that’s his route, is it?
Applicant:Yeah, he always go there to picking a lot of the people and coming to Johannesburg the same –
Tribunal:Mm.
Applicant:Just like a taxi driver.
It was on the basis of this exchange that the Tribunal found that the wife (as well as Ms Saloner) “stated that [her] brother’s sphere of influence would be between Eastern Cape and Johannesburg” (emphasis added) and on that basis reached the critical conclusion that any influence the brother may have was localised in nature.
It is notable however that the question the wife answered was whether that was “his route”, not the rather more complex issue of her brother’s “area of influence” or his “sphere of influence” or whether, as Ms Saloner suggested, this was the area in which he was able to access knowledge and information about matters such as people’s whereabouts through the strong networks available to him as a taxi driver. The applicant wife did not address the area in which her brother had influence (just the route he operated on as a taxi driver).
The applicant wife then claimed that her brother had taken her to the family home in Eastern Cape, hit her and locked her in and that her sister gave her money and helped her to escape. She did so in short, often ungrammatical and at times confusing language without interventions from the Tribunal other than “Mm.” For example, the applicant claimed that she and her husband went to the police station after she returned from Eastern Cape and that she made a statement. She said (transcript p 21) that her husband met her at the bus station with a friend and that:
Applicant:… they take me to the clinic –
Tribunal:Mm-hmm.
Applicant:-- or hospital in Alexander and they will tell – they tricked me. They put me ..(not transcribable).. then we go to the police station for a statement to put my statement, my statement, and I make a statement. That one, [husband’s name], he already made..(not transcribable).. he was already put – they made – I just going to tell them what’s happening and in South Africa there is special doctor, is a police doctor -- …
Tribunal:Mm.
Applicant:He’s one doctor. He’s doing this job. He have to take your marks where you injure it.
The applicant wife also claimed her husband was injured, that he explained that her brother had “hit him by gun and they tied him up” (transcript pp 22 – 23). The solicitor for the applicants referred to the Tribunal’s attempt to question the applicant about her evidence that complaints about the assault were not accepted at the local police station. As contended, in this exchange it is apparent (in particular from those portions emphasised below) that the applicant wife was unable to understand or at least experienced significant difficulty in understanding the Tribunal member’s questions. It was suggested that the member discontinued her line of questioning due to the inability of the applicant to understand. The questioning apparently related to the applicant’s evidence that her husband was injured, that he went to the hospital and then to the police station (transcript p 23):
Applicant:And then [the husband and a friend] go police station and they report the matter and police say they can’t involve that he has to go to the Eastern Cape and report this matter to the police station in Eastern Cape ..(not transcribable).. because they take me to the Eastern Cape, then maybe they can help him, and then it was not easy for him to go to the police station.
Tribunal:Mm.
Applicant:And in my, in my area there is a people, they put – there is a king, there is a small king. To record it in my language – I can’t say that –
Tribunal:Mm.
Applicant:He is something like a king.
Tribunal:Mm-hmm.
Applicant:They call him ..(not transcribable).. but that’s how I can say it. So if any happen in the area you have to tell them; not you just go to police. If they just see police --–
Tribunal:Mm.
Applicant:--they coming and they don’t know –
Tribunal:Mm.
Applicant:They don’t like you do like that. It is impossible to do that. So we stay there to ..(not transcribable).. place in the – in Pretoria. We hide ourselves there because we can’t hide ourself in, in South Africa, especially from my father (sic), because he is a taxi driver.
Tribunal:Mm.
Applicant:He know a lot of people and a long time he is driving there – there is a taxi association.
Tribunal:Mm.
Applicant:They going to meetings. They know each other so they can help each other so since I was sitting inside the room and [husband’s name] organised everything we is to coming Australia and we came here because we know somebody. [Husband’s name] got a friend. His name is, ah, he is name is ..(not transcribable).. he used to call him all the time.
Tribunal:Mm-hmm.
A lack of clarity of expression on the part of the applicant and a difficulty in expressing herself adequately in English is apparent in this exchange.
Then, after a discussion about whether the applicants could live in Pakistan, the Tribunal tried to clarify the applicant’s claims about the assaults and where they were reported, asking (transcript p 25):
Tribunal:… Now, can you tell me, um, you were assaulted and your husband [name] was assaulted in Johannesburg. Is that right?
Applicant:Yes.
In the exchange that followed, the applicant’s responses indicate a lack of comprehension and an inability to understand and respond appropriately (transcript pp 25 – 26):
Tribunal:But you had to go back to the Eastern Cape Police Station to put in a report. Was that – did I hear that correctly?
Applicant:I can’t go back to South Africa. I got no – any protection there because in South Africa if you don’t have money—
Tribunal:Mm.
Applicant:--you can’t do nothing.
Tribunal:Mm.
Applicant:And I can’t hide myself.
Tribunal:Mm.
Applicant:Where I’m going to go when I’m going to police station? People, they will see me. My brother, he will find me.
Tribunal:Mm-hmm.
Applicant:Maybe if they arrest him in the next day he will come down and he will be more to me – I will die once.
Tribunal:So can you explain to me why you had to travel back to the Eastern Cape Police Station to put in your report?
Applicant:What? Can you repeat for me?
Tribunal:Maybe if you – could you –
Applicant’s adviser: When you went to the police –
Applicant:Yes.
Applicant’s adviser: --um, where did you report to the police?
Applicant:I reported in Johannesburg. In Eastern Cape I never get a chance to go to police station. I can’t go to police station. I have to arrange to [husband’s name].
Tribunal:Okay. So it was reported at Johannesburg.
Applicant:Yes.
(Emphasis added in applicant’s submissions).
While the applicant could, with assistance, recount simple factual claims it is apparent that she had difficulty in communicating matters of any complexity and it is not clear that she had a level of comprehension such as to enable her to provide a meaningful response to Tribunal concerns. It is apparent from the next exchange (about the availability of state protection) that the applicant did not respond to the question asked, even when her adviser attempted to simplify it. The Tribunal confirmed that both the applicant and her husband had filed a police report in Johannesburg and continued (transcript pp 26 – 27):
Tribunal:Okay, all right. Maybe – that’s understood. Okay. And it appeared to me you were describing the procedures that, um – the police service have put in place – and they have – the courts that deal, the specialist courts – medical officer. It appears to me you were describing these South African Police Services – their web site. I don’t know if you are aware of that in the Country Information. “The medical officer collects and records what the police will do and how they investigate.” “And any family member.” So the domestic violence laws they have put through are quite wide and include any family member.
So do you want to comment just on that point; that South Africa has procedures in place? Certainly when I read the laws, which have been supplied to me, they have gone to some efforts to protect women and included in this is family violence and what you describe me here to be the processes they are going through. You don’t have to comment but I’m just putting to you if you want to add anything that information.
Applicant:..(not transcribable).
Applicant’s adviser: If you could tell the member what the police told you when you made your report at Johannesburg. What did they tell you to do? What did they tell you about your report?
Applicant:When I explained my –
Applicant’s adviser: When, when you made your report to the police.
Applicant:They said to me?
Applicant’s adviser: Yes.
Applicant:They said to me, “If you see him you will just phone us only,” and until we stay there one month, you know, if we hide ourself nobody was ..(not transcribable).. they didn’t did (sic) anything. It was not any action.
Tribunal:So you work in Johannesburg?.
After referring to the applicant’s education and move to Johannesburg the Tribunal asked the applicant if there was “any reason why [she] couldn’t move to another city in South Africa?” (transcript p 28). She responded “What?”. The Tribunal repeated the question and the applicant replied (transcript p 28):
Applicant:I can’t hide myself in South Africa. That is the problem. Because all the people they using taxis and there is- all taxi drivers, they communicate each other and people spray all South Africa. They know ..(not transcribable).. and sometimes they calling – there are meetings. They are going, they are talking to each other. They are helping each other. So they can find me very easily.
Tribunal:Okay.
Applicant:It, it will be impossible for me to hide myself. I can’t hide myself there.
The applicant’s evidence in this respect was relevant to the Tribunal conclusions in relation to the availability of state protection and reasonableness of relocation.
After further questioning and reiteration by the applicant that she could not go back to South Africa, that she feared that she could not hide herself in South Africa because taxi drivers would find her and that she could not go to Pakistan, the applicant sought to explain why she loved her husband. She persisted in this explanation even when the Tribunal drew her attention to the Tribunal’s obligation to apply the law in the Refugee’s Convention (transcript pp 29 – 31).
The applicant’s husband then gave evidence through an Urdu interpreter. The Tribunal raised issues such as state protection and relocation with the adviser, who was given the opportunity to and made further written submissions and provided further material.
Having regard to all the material before the Court I am satisfied that it has been established that in the absence of an interpreter the Tribunal failed to afford the applicant wife the opportunity required under s.425 to give evidence and present arguments relating to the issues arising in relation to the decision under review and that jurisdictional error is established on this basis.
It must be acknowledged that not all applicants will be able to present their claims or address matters of complexity with any degree of sophistication, even with the assistance of an interpreter in their first language. However s.425 requires that they should be afforded a meaningful opportunity to do so.
As set out above, it is clear from the transcript of the Tribunal hearing that, consistent with the affidavit evidence of Mr Brady, the Tribunal was aware that the applicant had requested a Xhosa interpreter. It is apparent from the exchange between the Tribunal and Mr Brady that the issue of an interpreter for the wife was considered prior to the hearing, but that the Tribunal has not been able to arrange a Xhosa interpreter.
It is the case that the adviser suggested that it was his experience that if the applicant was “relaxed she can be … well understood and could understand well” (transcript p 3).In that sense the situation differed from that considered in SZGYM, where the interpreter raised the issue of the appellant’s dialect. However while the Tribunal then (understandably) sought to proceed with the hearing, that does not mean that the obligation in s.425 was met. It is not apparent from the transcript that the applicant had the necessary proficiency in English to communicate with and comprehend the Tribunal to ensure that she had a “meaningful” opportunity, not simply to tell “her story” but also to give evidence and present arguments in relation to the issues arising in relation to the decision under review. On the contrary, it is clear from the transcript that she was not afforded such a meaningful opportunity.
The fact that the adviser suggested that the hearing could continue (when he understood that no Xhosa interpreter was available in Australia) and did not complain about the conduct of the hearing thereafter, does not deprive the applicant of the procedural fairness obligation enshrined in s.425 if, as here, the requisite opportunity was not in fact accorded because of the level of the applicant’s English and the absence of an interpreter in her first language (or, indeed, in Zulu). Given that there is no suggestion that the applicant’s adviser spoke Xhosa or Zulu, his ability to assist the applicant with comprehension and communication difficulties was limited, commensurate with her English language ability, as the transcript demonstrates. His assistance could not overcome any communication difficulties experienced by the applicant because of her limited English.
While speaking slowly and repetition on the part of the Tribunal might be helpful, this also could not and did not address all comprehension difficulties (see SZGYM at [37]) and could not facilitate the applicant herself giving evidence and presenting arguments on matters of some complexity, such as obstacles to relocation and the availability of state protection.
As indicated above, while the applicant agreed with the Tribunal that she “understood” English (although she said not “very well”), she was not asked about her ability to speak English, a matter critical to her ability to take advantage of the opportunity afforded by s.425. Nor did the Tribunal raise with the applicant after the start of the hearing the issue of her ability to communicate in English.
The decision in S1586 of 2003 is not directly in point. In that case an interpreter was present but was not used. Here no such facility was afforded or even offered to the applicant. Importantly, given the Tribunal’s reliance on the wife’s oral evidence, it cannot be said that no prejudice was suffered by her by the Tribunal conducting the hearing (in relation to her) in the English language (cf S1586 of 2003 at [11] – [12]). The fact that other witnesses (the husband and Ms Saloner whose evidence is discussed further below) gave evidence relevant to the nature and extend of the wife’s claims does not overcome the fact that the Tribunal’s obligation under s.425 was to the wife as the primary visa applicant. The applicant wife clearly has some English language ability. However, in addition to the fact that she had requested an interpreter in Xhosa, the transcript reveals difficulties in comprehension and communication in relation to dispositive issues. As submitted for the applicants, the continuation of the hearing in the face of notice by her of a request for an interpreter and evidence of the wife’s limited English language ability (on the basis that questions could be repeated and she could have (but did not) raise concerns) did not afford to her the meaningful opportunity required under s.425.
Hence the decision was affected by jurisdictional error. The failure to comply with the mandatory procedural obligation in s.425 is such that the matter should be remitted for redetermination according to law. However, I have also addressed the other grounds relied on by the applicants.
Section 424A of the Migration Act
The second ground in the amended application is that the Tribunal fell into jurisdictional error by not inviting the applicant wife to comment on adverse information under s.424A(1) of the Act. The particulars to this ground are that the Tribunal accepted the evidence of Ms Saloner, a witness for the applicants, as being adverse to the applicant’s case and relied on such evidence in finding that the applicant was not owed protection obligations. It was contended that the Tribunal erred in failing to provide the applicant with an opportunity to comment on such adverse material, failing to identify to the applicant the relevance of such material and failing to advise of the consequences of the Tribunal relying on such material.
As requested by the applicants’ adviser, the Tribunal took evidence from Ms Saloner, at the Tribunal hearing. Ms Saloner, the wife’s counsellor, gave evidence in the absence of the applicants which the Tribunal referred to in its reasons for decision. The Tribunal summarised Ms Saloner’s evidence, which was said to be based on her knowledge from living in South Africa and her personal understanding of the wife’s situation.
In its findings and reasons the Tribunal accepted that the wife’s brother was the perpetrator of violence against the applicants and was a taxi driver and that taxi drivers were prone to violence of a criminal gang nature that was local in nature. It referred to country information in relation to the local nature of criminal gang violence between rival taxi gangs. It found that both the applicant wife and Ms Saloner had stated that the wife’s brother’s “sphere of influence would be between Eastern Cape and Johannesburg”. It was not disputed that Ms Saloner gave evidence to this effect although, as set out above, this is not what the wife stated, but rather the Tribunal’s interpretation of her evidence. The Tribunal found on this basis that any influence the brother may have was localised in nature.
The applicants submitted that this evidence from Ms Saloner was evidence specific to the situation of the applicants and went to the nature of harm likely to be faced by the applicants on return to South Africa. It was contended that the Tribunal made findings based on this evidence, in particular that the nature of such harm or influence was localised in nature, but that it failed to put this information to the applicants in accordance with s.424A of the Act, hence denying them procedural fairness in determining whether they were likely to face a real chance of persecution for a Convention reason if they returned to South Africa.
It was also submitted that this evidence was not only relevant to the Tribunal findings on relocation but also to the findings on state protection as the determination of whether the State was capable of providing protection and had taken reasonable measures could not be determined without first ascertaining the likelihood and type of harm the applicants were likely to face on return to South Africa (see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1).
Both the husband and wife made claims about their fears of her brother throughout South Africa and the inability or unwillingness of the police to provide protection. The wife claimed to fear persecution as a Xhosa woman who feared retribution from family members for marrying outside her tribal group. Specifically she was said to fear harm from her cousin (referred to generally as her brother as her cousin’s parents had adopted her), a taxi driver, who through his occupation was said to have links to criminal gangs. It was claimed that he would be able to locate the applicants wherever they resided in South Africa through the connections his taxi networks provided him. It was also asserted that the State was incapable of providing protection against the harm feared from the wife’s brother.
Although the Tribunal did not refer expressly to the content of the wife’s statutory declaration dated 14 August 2007, in that document she claimed that she and her husband were in hiding because if they went out into public they could have been found by her brother or by someone who knew him and “[t]his is because [the brother] is a taxi driver. He belongs to the [named] Taxi Association. Taxi drivers all over the country know each other, and often attend meetings at, which time they ask each other for favours and give each other information.
Taxi drivers in South Africa are very violent and dangerous people. They carry guns. There has been a lot of violence in South Africa connected to taxi drivers.”
The applicant wife also claimed that she could not complain to the police because they were corrupt, that they would not help if she did not have any money and if they did anything to her brother he would just pay them and they would let him go.
The husband suggested in his statutory declaration dated 14 August 2007 that even if they were living in a different city they would be found because the wife’s brother was a taxi driver, that taxi drivers in South Africa were very dangerous, violent and often armed and that “[t]axi drivers all over the country are closely connected, and help each other in many ways, including finding people. It is impossible in South Africa to hide from taxi drivers”. He also claimed that although they made complaints to the police, the police had indicated they did not want to be involved in Eastern Cape tribal matters and that to the best of his knowledge no action had ever been taken against the applicant’s brother or any member of her family.
In submissions to the Tribunal the applicant’s adviser had referred to the fact that the wife’s adopted brother was a taxi driver on the Johannesburg to Eastern Cape route and traversed a great deal of the country and had submitted that the existence of taxi associations and the “clan-like” brotherhood among taxi drivers allowed for a “loosely structured, yet dynamic network for information collection and transmission, explaining how taxi associations had developed as informal agents of regulation, protection and extortion”.
In these circumstances it was contended that the Tribunal failed to comply with s.424A(1) in failing to put to the applicants for comment the oral evidence of Ms Saloner, in particular the evidence summarised by the Tribunal as follows:
Ms Saloner’s evidence is that the first named applicant told her that her “brother” who is actually her cousin is a taxi driver. Taxi drivers have a widespread network and corruption is widespread. Taxi drivers would have contacts within their area to get any information they require. The first named applicant’s brother works between Eastern Cape and Johannesburg and would be able to have an influence in that area.
The first respondent did not dispute that there had been a failure to comply with s.424A (as to which see SZEWLv Minister for Immigration and Citizenship (2009) 174 FCR 209). However, counsel for the first respondent submitted that the information obtained by the Tribunal from the evidence of Ms Saloner was information that was part of the reason for only one of the bases on which the Tribunal affirmed the decision of the delegate, namely that the applicants could relocate without difficulty to other parts of South Africa. It was submitted that the Tribunal had also rejected the applicants’ refugee claims on a separate and independent ground which had nothing to do with the information obtained from this evidence, being that the applicants could obtain adequate state protection in South Africa and that hence the decision was not affected by jurisdictional error.
The parties made detailed submissions on these issues and on the issue of the Court’s discretion not to grant relief. The first respondent contended that the Tribunal decision was not “affected” by jurisdictional error by a breach of s.424A if it could be supported by reasoning which stood alone and separate from the reasoning flawed by the jurisdictional error. First, given my findings on s.425, the decision is not otherwise free from jurisdictional error, so that the reasoning of Gray J in VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291 at [55] –[58] relied on by the first respondent (and see VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33], SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [12] and [17], MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] and VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1 at [22]) is not directly in point.
In any event (as was the case in relation to the information considered by Weinberg J in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [157] –[167]) the possibility that the information about the local nature of the sphere of influence of the applicant wife’s brother contributed not only to the findings on relocation but also to its conclusions in relation to state protection and rejection of the applicant wife’s claims on that basis “cannot realistically be excluded” (SZEEU at [65]). The applicants made claims addressing their fears of the brother relevant both to relocation and state protection. This information was considered in the context of the Tribunal’s discussion of state protection as well as in its reasons in relation to relocation. It was the basis for the Tribunal’s conclusion that any influence the brother may have was localised in nature. It was on this basis that the Tribunal concluded that the harm that the wife was concerned with was localised. I also bear in mind that, as Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ suggested in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]: “the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case”.
While the place in the Tribunal decision in which the discussion of this information occurred is not determinative, it is clear that in addition to considering this evidence in relation to relocation the Tribunal was satisfied that the state was willing and able to protect the applicant in relation to the localised harm that was feared. The Tribunal use of the information from Ms Saloner reflects the fact that, as the applicant submitted, the determination of whether the state was capable of providing protection and had taken reasonable measures could not be determined without first ascertaining the likelihood and type of harm (including the nature and extent of such harm) the applicants were likely to face on return to South Africa.
I am not satisfied that the information from Ms Saloner about the brother’s sphere of influence was not relevant to (and considered) in connection with the issue of state protection. Rather, the conclusion that the State was willing and able to protect the applicants was made in light of the Tribunal findings about the nature and extent of the harm feared. Whether the existence of an independent basis for the Tribunal decision means a Tribunal decision is not affected by jurisdictional error or is a basis for refusing relief, I am not satisfied that it has been established that there was an unimpeached basis for the decision in this instance. First there is also a breach of s.425. Secondly, I am not persuaded that the impact of the breach of s.424A was confined to the relocation issue in the manner contended for by the first respondent and that the state protection findings were entirely independent of and unaffected by the breach of s.424A.
Hence it is not necessary to determine whether, if there was an independent strand of reasoning to which the breach of s.424A had no relevance, that would mean the decision was not affected by jurisdictional error or whether it would simply be relevant to the discretion to refuse relief as discussed by Allsop J in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [230] – [233] (and see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 per McHugh J).
Relief should also be granted on the basis of the Tribunal’s failure to comply with s.424A of the Migration Act
Whether the Tribunal failed to consider integers of the applicant’s claim in relation to her HIV positive status
The other ground in the amended application is that the Tribunal failed to exercise its jurisdiction in that it failed to consider an integer or integers of the applicant’s claim. The particulars to this ground are as follows:
1. The applicant is HIV+.
2. The applicant stated in submissions to the Tribunal that she claimed protection on the basis that she was HIV+.
3. Independent Country Information provided to the Tribunal clearly stated that the social stigma associated with HIV/AIDS remained a general problem [sic. in South Africa].
4. The Tribunal Member found that the applicant could access medical treatment for her HIV condition through her own skills and marriage to the second named applicant.
5. The Tribunal Member failed to make a finding on the persecution the applicant was likely to face as an HIV+ person in South Africa.
6. The Tribunal Member failed to make a finding on the persecution the applicant was likely to face as an HIV+ from her family and community.
7. The Tribunal Member failed to make a finding as to the harm the applicant was likely to suffer in the event that she was unable to access medical treatment for her HIV condition through her marriage to the second named applicant, such harm being caused by persecution she was likely to suffer as an HIV+ individual in South Africa, in accordance with MZXKX v Minister for Immigration [2008] FMCA 567.
8. The Tribunal Member was aware that the applicant had a medical condition, being advanced HIV infection.
9. The Tribunal Member was aware that HIV+ people in South Africa suffered discrimination.
10. It was squarely before the Tribunal Member that the applicant was likely to suffer harm as an HIV+ person in South Africa.
11. The Tribunal Member failed to make a finding on the persecution the applicant was likely to face as an HIV+ person in South Africa.
12. The Tribunal Member failed to make a finding on the persecution the applicant was likely to face as an HIV+ from her family and community.
13. The Tribunal Member failed to make a finding as to the harm the applicant was likely to suffer in the event that she was unable to access medical treatment for her HIV condition through her marriage to the second named applicant, such harm being caused by persecution she was likely to suffer as an HIV+ individual in South Africa, in accordance with MZXKX v Minister for Immigration [2008] FMCA 567.
The applicants claimed that they feared persecution (among other reasons) because they were HIV positive. In their adviser’s written submissions to the Tribunal dated 21 August 2007 the basis for the wife’s claims were said to include her HIV positive status. Evidence was provided by the applicants’ treating specialist as to their HIV positive status. The issue of what the applicants’ solicitor described as the “likelihood” of detrimental medical consequences if the applicants were returned to South Africa due to what was said to be inadequate health care and community prejudice was raised. A supporting letter from Dr Ealing, the Director of Clinical Operations at the Albion Street Centre, dated 24 August 2007 referred to the fact that both applicants had been recently diagnosed with HIV and the wife with advanced HIV disease. This letter relevantly stated “There is a high morbidity and mortality associated with HIV, and particularly with HIV/TB co-infection, in South Africa. HIV and HIV/TB are serious life-threatening illnesses, best treated by specialists with the requisite expertise and with ready access to a reliable ongoing source of quality medicine. I understand that there is only one institution in South Africa that provides HIV and TB co-infection treatment – the Khayelitsha Community Health Centre run by MSF. Access to this clinic is limited, as demand is so high. In addition, if [the applicants] needed to attend this clinic, this may limit [the applicants’] relocation abilities within South Africa, and increase the chance that they may be found, at least for the period while either/or receive treatment for TB (though I do recognize that [the applicant husband] might not have TB)”.
After expressing the view that it was in the best interests of the couple to remain in Australia Dr Ealing continued “To return to their country, would appear to be very unsafe for them because of racial, religious and cultural prejudices, as well as limited reliable access to essential health care and medication required for their serious life threatening medical condition.” This letter of support was said to provide evidence of a paucity of support from family and friends in South Africa. Dr Ealing stated, after describing the basis for the applicants’ fear, that they “understandably now have no contact with either of their families or friends”.
In addition, documentary evidence was provided to the Tribunal in relation to the existence of what was said to be persecution of and discrimination against HIV positive people by civil society in South Africa. The United States Department of State Human Rights Report on South Africa for 2006 before the Tribunal stated relevantly: “Although the government conducted campaigns to reduce or eliminate discrimination against persons with HIV/AIDS, the social stigma associated with HIV/AIDS remained a general problem. There were reports of the abuse of HIV-affected individuals by their families and communities”.
Information was also provided to the Tribunal by the applicant’s adviser in relation to the extent of the HIV epidemic in South Africa and the inability of the South African government to deal with that epidemic. The South African Human Rights Commission, Annual Report for 2006 referred to South Africa as having one of the highest rates of prevalence of AIDS in the world, which was not dropping significantly. The report described a growth in the population dependent on public health services and the increasing burden placed on health services by the HIV/AIDS epidemic and stated “Despite the fact that the government has taken some important initiatives in the health sector, many South Africans still do not enjoy affordable and adequate health care facilities, including quality health care.” This report also referred to the poor standard of living of a large segment of the population and suggested that, the slow pace of response to the AIDS “pandemic” has “resulted in over 2 million people dying of AIDS in South Africa at an estimated rate of a thousand deaths per day and suggested that in order to halt the spread of AIDS provinces would have to scale up their programmes considerably.”.
The applicants submitted that in both oral and written submissions evidence had been provided to the Tribunal to the effect that the applicant wife lacked family and community support in South Africa as her marriage was against the wishes of her family and community.
It was acknowledged that the Tribunal had addressed a number of issues about the wife’s tribal situation, the actions of her brother, her marriage outside her tribal group and her claim that she suffered discrimination because her husband was an immigrant, she was a Christian married to a Muslim man, a woman in South Africa and a Xhosa woman. In relation to HIV the Tribunal found that the wife had claimed that because of her HIV positive diagnosis she was a member of a particular social group and at a special risk in any consideration of relocation. The Tribunal found that it would be reasonable for the applicants to relocate and that they would be able to access necessary medical assistance.
It was submitted however that the material before the Tribunal raised a claim on the part of the applicants that they faced a possibility of serious harm on return to South Africa on a number of bases, such as societal discrimination, possible denial of family support or non-availability to medication and that none of these aspects had been canvassed by the Tribunal.
It was said to be relevant that at the Tribunal hearing the Tribunal member had indicated to the applicants’ representative that the Tribunal was not allowed to take into consideration the HIV diagnosis of the applicants. The applicant submitted that the statement that the Tribunal was not looking at HIV was an accurate reflection of the Tribunal member’s mind.
In addition, while the Tribunal decision referred to some country research about HIV, the Tribunal was said to have confined itself to the issue of relocation in addressing HIV. This was said to indicate that the Tribunal considered HIV only as it impacted on other claims and not as a specific claim of itself. It was submitted that the claims put forward by the applicants and arising squarely on the face of the material before the Tribunal relevantly involved assertions that there was severe discrimination against HIV positive persons in South Africa, that such discrimination may cumulatively amount to serious harm and that the State of South Africa was unable to protect the applicants from such discrimination.
It was submitted that the Tribunal failed to perform its duty to consider these claims and in failing to do so fell into jurisdictional error in the sense considered in SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 265 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 in which it was pointed out that the Tribunal’s obligation was not limited to responding to expressly articulated claims but extended to reviewing the delegate’s decision on the basis of all the material before it.
Reliance was also placed on MZXKX v Minister for Immigration [2008] FMCA 567 in which Riethmuller FM referred to the fact that the review process was inquisitorial rather than adversarial and pointed out that the Tribunal was required to deal with the case raised by the material or evidence and found that the applicant was entitled to have certain inferences drawn in his favour as to the implications of what he was saying, consistent with SCAT. In MZXKX the applicant had claimed to fear serious harm if returned to his home country as he feared (among other things) societal discrimination on the basis of his HIV status, that the State could not protect him from familial discrimination and also that he would be unable to access treatment.
It was submitted that, similarly, in this case while the Tribunal found that the State of South Africa was not discriminating against the applicants in the provision of health services, it did not take into account the situation that would occur if the applicants were unable to access private health care and hence were forced to depend on family support and the public health system. It was submitted that there was information before the Tribunal about the applicants’ prognosis which raised the issue that they would be unable to work for some period of time in their lives, as well as evidence about familial discrimination. On this basis it was submitted that as Riethmuller FM had stated in MZXKX (at [22]) “If the only form of support available in a society is being denied as a result of discrimination (which appears to be the likely scenario in this case), then the claim that the threat to the applicant’s capacity to subsist is for a convention reason must be addressed by the Tribunal.”
Issue was also taken with the Tribunal findings in relation to the current state of health care in South Africa in relation to HIV/AIDS. Country information indicated that the past policy of the South African government had emphasised a diet of garlic and beetroot. It was pointed out that the evidence was that a change in approach dated only from December 2006. It was submitted that it was clear that prior to this time the South African government itself had had a persecutory or discriminatory manner of dealing with HIV infected persons. The policy shift had taken place only a short time prior to the application in a situation where the health system was facing a number of serious crises and there was said to be evidence of a slow pace of response to the AIDS pandemic. Hence it was said to be apparent to the Tribunal that the state of the public health system was a direct result of previous discriminatory attitudes on the part of the South African government so that in determining whether the applicants had a well-founded fear of harm as a result of non-availability of medication the Tribunal had to turn its mind to the results of the recent policy change before making a finding that the South African government had not discriminated against the applicants with the provision of medication.
It was submitted that a proper reading of the Tribunal findings in this respect were that the applicants would be able to access medicine through the private health system as long as they were gainfully employed. However as there was evidence before the Tribunal as to difficulties experienced by the public health system and the absence of family support and the possibility of familial persecution, it was submitted that, consistent with MZXKX, it was necessary for the Tribunal to have regard to the prognosis of the applicants and the high morbidity and mortality associated with HIV in South Africa and to consider whether, if the applicants were unable to work, their capacity to subsist would be threatened, as the chances of their getting medication through the public health system was, from the Tribunal’s own findings, very limited such that it could be said that there was a real risk of serious harm.
As in MZXKX it was said that there was a combination of factors which may lead to the applicant wife being unable to exist consisting of a general level of discrimination in society, a potential inability to work as a result of HIV, a lack of available medical care and a denial of family support due to the applicant’s marriage to her husband.
Counsel for the first respondent acknowledged that the Tribunal was obliged to deal with a claim raised squarely on the material before it in the sense considered by the Full Court of the Federal Court in NABE and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 but submitted that, contrary to the submissions for the applicants, there was never a general claim raised by the applicants or on the material before the Tribunal that the applicant would suffer severe discrimination in South Africa because she was HIV positive. Further, even if she did make a claim or assert that there was discrimination or a possibility of discrimination, it was pointed out that discrimination on its own did not amount to persecution for a Convention reason.
The first respondent submitted that the applicants’ claim based on their HIV status was articulated in the submission from the applicants’ adviser on the basis that it “makes them highly visible in South Africa … and [it] limits their internal travel options sharply and hence their ability to hide in the general population to escape reprisal by the applicant’s brother and his associates …”. This claim was said to have been correctly summarised by the Tribunal as a claim by the wife that “because of her diagnosis of HIV she is a member of a particular social group and is in a special risk in any consideration of relocation”. It was said that while specific claims were made by the applicants’ adviser in the written submission of 22 August 2007 about discrimination and stigmatisation of HIV positive people in Pakistan and an inability of the Pakistan authorities to protect HIV positive applicants, in relation to South Africa such claim was put in general terms on the basis of being a limiting factor in terms of internal travel options.
It is apparent that there were two aspects to the claims based on the applicant’s HIV status. First she claimed to fear persecution as a member of a particular social group consisting of those of HIV positive status. Secondly she claimed that her HIV status was a factor relevant to relocation. The claim based on being a person of HIV positive status did not involve or give rise to a claim of discrimination or persecution by the applicant’s family and community. The Tribunal addressed the possibility of discrimination by the State or the denial or lack of available health care from the State in both the public and private health sectors.
The letter from the Albion Street Clinic did not raise a claim that the applicants somehow feared discrimination from their family and friends as a consequence of their HIV status. The general claim in that letter that to return to their country would appear to be very unsafe for the applicants because of racial, religious and cultural prejudices as well as limited reliable access to essential health care and medication required for their serious life-threatening medical condition was not such as to give rise to a claim that they feared prejudice because of their HIV status for other than the reasons discussed by the Tribunal.
Insofar as the applicant relies on the discussion between the Tribunal member and the adviser at the conclusion at the Tribunal hearing, this is not such as to establish that a claim that HIV positive individuals were at risk of discrimination in South Africa was raised, as distinct from a concern that the applicants’ HIV status had been diagnosed after they had undergone some health checks. It is clear from the transcript that this discussion was in the context of the adviser informing the Tribunal that since the applicants had undergone health tests they had been diagnosed HIV positive. The Tribunal indicated that that would go back to the Department and the Tribunal did not know how they would deal with that, but that it was not something that would be dealt with by the Tribunal (transcript p 40).
Further, insofar as the country information before the Tribunal addressed issues of the treatment of those affected by HIV in South Africa, this was not material that indicated that the applicant wife was making claims or which squarely raised a claim of state discrimination against her because of her or her husband’s HIV status or based on a possible inability to access health care in the manner contented for by the applicants. It has not been established that the material before the Tribunal gave rise to a claim in this respect beyond that considered by the Tribunal. The South African government had previously preferred beetroot and garlic treatment as distinct from anti-retroviral treatment, but the evidence before the Tribunal was that the present government was in fact making such treatment available. The Tribunal found that there was public and private health sector HIV care and treatment in South Africa; that the applicants would be able to ensure that they could provide for all the medical needs of the applicant wife insofar as treatment for HIV was concerned; that the applicant wife would be able to access medical assistance if she relocated to a city such as Cape Town; and that she would be provided with the same level of health care as all South African citizens.
Critically, the Tribunal found that the applicant wife was not being discriminated against or denied health care by the South African authorities. Moreover, while the Tribunal preferred country information on this issue over the evidence of the applicants, this was a finding of fact open to the Tribunal on the material before it.
MZXKX is distinguishable. In that case Riethmuller FM found that the evidence supported a claim that the applicant may be unable to subsist in Cambodian society because of discrimination he would suffer because of his HIV status, finding that because of the presence of evidence of general discrimination in Cambodia against HIV positive persons, the applicant’s inability to find employment because of his HIV positive status, the lack of medical care in Cambodia, and denial of familial support because of discrimination from his family because of his HIV status there was, arguably, a refugee claim not considered by the Tribunal. However in the present case the Tribunal made findings of fact that the applicant wife was not being discriminated against or denied health care by the South African authorities. No claim of the kind identified in MZXKX arose for consideration in the present case. In particular in MZXKX there was a significant finding that the applicant in that case had his capacity to subsist threatened by the combination of discrimination and inability to obtain work because of his HIV positive status (see MZXKX at [14]). However there was no such finding in this case or evidence or material to that effect in relation to the applicant wife that required consideration of such a claim. The Tribunal addressed the claim about the applicant wife’s limited ability to relocate and hide from her brother and his associates because of limited treatment in South Africa for HIV positive persons. It considered but rejected this argument and found that the applicants could relocate and find health care and treatment for the applicant wife’s HIV positive status.
Moreover, there was no claim made by the applicant wife that she feared persecution because of discrimination from her family or community because she was HIV positive. Such claim was not made by her or by her solicitor and nor did it arise squarely from the material before the Tribunal. Hence it was not necessary for the Tribunal to address such a claim.
This ground is not made out. However, as breaches of ss.424A and 425 of the Migration Act have been established the matter should be remitted to the Tribunal for redetermination according to law.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 June 2009
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