SZQLS v Minister for Immigration
[2012] FMCA 624
•17 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQLS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 624 |
| MIGRATION – Review of decision of Independent Merits Reviewer – where Reviewer aware applicant suffering from mental condition – where no evidence before Reviewer that applicant suffered from post traumatic stress disorder – whether Reviewer incorrect to proceed on basis that applicant suffered schizophrenia – whether applicant’s mental state affected his ability to give evidence and present arguments at interview – where country information credible relevant and significant – whether information specifically put to applicant – whether Reviewer considered all integers of claim – where errors apparent in interpretation during interview – whether required standard of interpretation met – whether interpretation so incompetent that applicant was prevented from giving his evidence – whether errors in interpreting related to matters of significance for the applicant’s claims or the Reviewer’s decision – whether Wednesbury unreasonableness. |
| Migration Act 1958 (Cth), ss.36(2), 425 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 Minister for Immigration and Anor v SZNVW [2010] FCAFC 41 Minister for Immigration & Anor v SZNCR [2011] FCA 369 SCAR v Minister for Immigration & Anor [2003] FCAFC 126 NAMJ v Minister for Immigration & Anor [2003] FCA 983 SZOVP v Minister for Immigration & Anor [2012] FCA 244 Minister for Immigration & Anor v MZYHS [2011] FCA 53 Minister for Immigration & Anor v SZQHH [2012] FCAFC 45 Htun v Minister for Immigration & Anor [2001] FCA 1802 Applicant WAEE v Minister for Immigration & Anor [2003] FCAFC 184 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 WACO Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 WALN v Minister for Immigration and Multicultural and Indigenous [2006] FCAFC 131 MZXLE v Minister for Immigration and Citizenship [2007] FCA 1159 SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 SZLDY v Minister for Immigration & Citizenship [2008] FMCA 1684 |
| Applicant: | SZQLS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | IRENE O’CONNELL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1564 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 June 2012 |
| Date of Last Submission: | 27 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Robison |
| Solicitor for the Applicant: | Michaela Byers |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1564 of 2011
| SZQLS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| IRENE O’CONNELL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised boat arrival on 2 October 2009. On 17 October 2009 he made a request for a refugee status assessment. On 14 January 2010 the RSA officer made a negative assessment. The applicant applied for review of that decision from an Independent Merits Reviewer[1] on 25 January 2010. On 20 April 2010 the Reviewer found that the applicant did not meet the definition of a refugee as set out in Article 1A of the Refugees Convention. The applicant then appealed to the High Court of Australia which declared that in recommending to the Minister that the applicant was not a person to whom Australia has protection obligations the Reviewer made an error of law in that she did not treat the provisions of the Migration Act 1958 (Cth)[2] and the decisions of the Australian Courts as binding and further failed to observe the requirements of procedural fairness; Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia[3] (2010) 243 CLR 319. As a result a further hearing before a different Reviewer was arranged. The applicant was interviewed by the Reviewer who, on 7 June 2011, recommended that he did not meet the criteria for a protection visa set out in s.36(2) of the Act.
[1] “Reviewer”
[2] “Act”
[3] “M69”
The ground upon which the applicant claimed to fear persecution from the Sri Lankan army and other government agencies was principally that he was a young Tamil male who would be imputed with a political opinion supporting the LTTE. He was born in Jaffna and lived there until 1995. His father had been accused at some point in time of assisting the LTTE and as a result his family moved to Mullaitivu and then to Vavuniya. The applicant returned to Jaffna to study at the university where he completed a Bachelor’s degree in 2008. Whilst at the university he attended a demonstration and was badly injured when the army intervened to break up the demonstration. The applicant worked for a centre for childcare and women’s development which he claimed would lead people to believe that he was sympathetic to the LTTE. The applicant also claimed that whilst at university he had published an article in a student magazine. He believed that these other activities gave him a profile of a person who would be suspected of being an LTTE supported. He believed that if he was returned to Sri Lanka he would be held by the authorities and subjected to persecutory treatment.
The applicant also made a sur place claim arising out of his position as the applicant in M69. He believed that he had received publicity from this and he suspected that his telephone conversations with his parents were taped. There was also a photograph of him together with a number of other Sri Lanka asylum seekers being transferred from Christmas Island to Villawood. His family recognised him in that film clip and he believed that the authorities would also know that he had claimed asylum in Australia.
The applicant told the Reviewer that he had been diagnosed as suffering from an acute psychotic illness – schizophrenia in September 2007. He had received treatment for this condition in Sri Lanka but appears to have abandoned the treatment in about 2009. He believed that the cause of his illness was when he was hit on the head after being arrested at the demonstration. The Reviewer was aware of his condition and in a submission made by his advisor to the second Reviewer it was requested that his mental health should be taken into account in assessing his evidence. In the Reviewer’s decision record she states at [34] CB 241:
“[34]The reviewer noted that in the documents provided from both Jaffna and Vavuniya refer to the applicant discontinuing his medical treatment. The claimant stated that he discontinued it because the doctors had told him he was fine and he was better. The reviewer noted that one of the letters from his treating doctor stated that he had discontinued his medical treatment and that he required continuous monitoring and supervision. The claimant stated that he has continued to take his medication. Asked if he understood what his medical condition was, he stated that he suffers mentally. Asked if he is currently taking medications he stated that he is. Asked how he currently feels, the claimant stated that he feels very good and that he feels like new since resuming his medications.”
The Reviewer questioned the applicant about his claims, in particular as to whether there had been any further persecutory conduct after the incident in December 2005. The applicant stated that nothing else had happened. He said that he believed this was because he was a student at the university at the time and that the military would not harm him then but they would take an interest in him now as he had concluded his university studies. He included the writing of an article in the university newspaper as something would arouse the interest of the authorities. It was an article indicating that he did not believe that the peace accord would hold:
“[46]The reviewer put to the applicant that it was accepted that he was a young Tamil male, but had concerns as to whether or not he had a profile by reference to the issues that he has raised such as his participation in demonstrations back in 2005 and association with a student newspaper. He stated that when he was brought from Christmas Island to Villawood Detention Centre, this received publicity and his mother had told him back in Sri Lanka that she had seen him on television. He stated that he believed that he faced harm as an asylum seeker and a failed asylum seeker if he was to return, and because of his illegal departure from Sri Lanka. He also stated that as he was involved in the High Court case M69, that he also thought that this would bring him to the attention of the authorities and that they would impute him with that political opinion, by reason of combination of all these factors.” [CB 242]
At [50] CB 243 the Reviewer:
“[50][N]oted the country information from the UK Home Office about the treatment of failed asylum seekers and accepted that a person with a profile could face difficulties or mistreatment, but the reviewer had to look carefully at whether or not the claimant’s claim to past experiences would give him a profile that would put him at risk of mistreatment. The adviser suggested that the profile came from his employment with the CCWD; his involvement as a student in demonstrations and his identification in the media. She also stated that she believed that the attack on the applicant in 2005, when he participated in a demonstration was serious harm, which gave rise to his mental health problems. She requested two weeks to make further submissions.”
In her Findings and Reasons the Reviewer considered first the applicant’s mental condition:
“[55]The reviewer notes that the claimant has undergone medical treatment in Sri Lanka for a condition which has been variously described in the medical reports from Sir Lanka as schizophrenia and a psychotic illness. The review notes that the claimant discontinued treatment in Sri Lanka and that at the time of his appearance before the reviewer was receiving medical treatment and he indicated to the reviewer that he was competent to give his evidence.” [CB 248]
The Reviewer did not accept that the applicant had a profile as a LTTE associate or ally or as anti-government or that he had been imputed with any of these profiles by the Sri Lankan authorities. She did not accept that he was of any adverse interest to those authorities before his departure. The Reviewer noted in particular that although the applicant was involved in a demonstration in 2005 he was not detained or questioned about it. She did not believe that one article in a student magazine and one participation in a demonstration in respect of which the authorities have taken no action would be reactivated upon his return to Sri Lanka now that he had ceased being a student. The Reviewer accepted that the applicant had some association with the CCWD but did not accept that this caused him to be of any adverse interest to the authorities. The Reviewer accepted that because he departed Sri Lanka illegally he would on his return to Sri Lanka come to the adverse attention to the authorities and would be identified as the person who had sought asylum in Australia:
“[71]The Reviewer does not accept that his application to the High Court of Australia seeking a review of his first Reviewer recommendation or his possible depiction on television at a detention centre is evidence of anything more than the claimant is an asylum seeker.
[72]In particular the Reviewer does not accept that the Sri Lankan authorities would impute him with a political opinion by reason of his asylum seeking in Australia, that is the Reviewer does not accept that the claimant’s claim that he would be viewed as a person who had information or secrets to give the Australian government and would in this sense be attributed with an imputed political opinion or as anti-government or that his actions here in Australia would leave the Sri Lankan authorities to consider him to be an associate of the LTTE.
[74]The Reviewer does not accept that the questioning of the claimant amounts to serious harm understood as a threat to the claimant’s life or liberty or significant physical harassment or ill treatment of the person.”[CB 250]
On 22 July 2011 the applicant filed an application with this court seeking judicial review of the Reviewer’s decision. The final claims which he made before the court are contained in a further amended application filed on 29 June 2012. As the matter was put by his counsel at the hearing before me, those grounds can be identified more succinctly as:
“1. The mental health ground;
2. The country information ground;
3. Failure to consider all integers ground;
4. The interpretation ground;
5. The Wednesbury unreasonableness ground.”
I shall deal with each in turn.
The mental health ground
The applicant filed an affidavit from Paula Farrugia, a registered psychologist who annexed to her affidavit a report that she had made upon her examination and assessment of the applicant. Her findings indicated that:
“Mr applicant is currently suffering from a chronic major depressive disorder. Symptomology consistent with post traumatic stress disorder (PTSD) was found. Additionally few panic symptoms insufficient to meet the criteria for a formal diagnosis were reported.”
In her conclusions Ms Farrugia stated:
(6.0.1)I have been asked to ascertain Mr Applicant’s medical condition and whether it may have affected his memory and ability to present his evidence to the Independent Merits Reviewer. I have examined Mr Applicant’s current mental state and assessed his cognitive ability by employing recognised standardised measures.
….
(6.0.5)The diagnosis to be considered is that Mr Applicant is currently suffering from a chronic major depressive disorder. He suffers with symptomology consistent with that of posttraumatic stress disorder (PTSD). He experiences episodic panic symptoms, insufficient to meet the diagnostic criteria for a formal diagnosis. He is previously diagnosed with Schizophrenia. Standardised testing revealed cognitive difficulties, memory and processing speed impairments.
(6.0.7)Therefore my clinical opinion is that Mr Applicant’s overall medical and cognitive condition, as found using standardized measures, highly likely impacted upon his memory and ability to present his evidence before the Independent Merits Reviewer. Thank you for referring your client to me. Should you require any further information or, expansion of any content presented her please feel free to contact me.”
It was submitted that the quality of his evidence was compromised. He could not give all the details of his problems and these matters flowed on to his credibility. Ms Farrugia was also critical of the interpretation in the manner in which the Reviewer asked her questions suggesting that these factors would also influence the way in which questions were answered and thus the Reviewer’s ability to be satisfied of the applicant’s claims. She formed the view that there was a possibility that the applicant wasn’t making himself clear to the Reviewer. She felt that the Reviewer should have eased his anxiety by indicating after she had completed questioning on a particular subject. She thought at times the Reviewer’s comments could have been restrained and that some of the comments indicated that the applicant was not being believed which could impact on the delivery of his evidence and could have provoked anxiety. She felt that it might have been exasperating when the applicant was asked again and again about points that he had dealt with previously and thought had been cleared up. In response to questioning from Mr Reilly, Ms Farrugia agreed that it was clear that the Reviewer knew that the applicant had mental issues. She agreed that it was apparent that the Reviewer was trying to keep the sentences short and clear. In response to a question as to whether or not it was clear that the applicant understood what he was being asked, she said she could not be entirely confident, maybe because of the interpretation, but agreed that the applicant’s answers to questions as appearing on the transcript appear to be responsive and that this would suggest a level of understanding. She agreed that the applicant was able to explain what his claims were and give arguments for why he should remain in Australia. These responses were made after Ms Farrugia had been given an opportunity to go through the transcript in minute detail and point out areas where she believed that the applicant’s presentation of his evidence might have been affected. I have not rehearsed that cross examination in these reasons because I do not believe that Ms Farrugia’s responses assist me in applying the appropriate test. I believe that at its highest Ms Farrugia’s evidence might go to explaining an unconvincing performance during the hearing before the Reviewer. As the Full Bench Keene CJ, Emmett and Perram JJ said in Minister for Immigration and Anor v SZNVW [2010] FCAFC 41 at [19]:
“[19]“More importantly, evidence that the respondent’s psychological difficulties might explain an unconvincing performance during the hearing before the Tribunal is hardly apt to establish his unfitness to "give evidence and present arguments."
[20]In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20] – [25], the contention that an applicant’s psychological difficulties were such as to deprive him of the "meaningful opportunity" required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.”
Tracey J interpreted their Honours’ reasoning in SZNVW in Minister for Immigration & Anor v SZNCR [2011] FCA 369 saying at [30]:
“[30]The argument focussed on what an applicant must prove in order successfully to establish a contravention of s 425 of the Act. Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.”
In SCAR v Minister for Immigration & Anor [2003] FCAFC 126 the Full Court Gray, Cooper and Selway JJ accepted that where there is a finding that an applicant was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s.425 of the Act was not a meaningful one.
The Reviewer was quite aware that the applicant was suffering from a mental condition. If she was not aware that he was suffering from PTSD it was because no-one had suggested that to her. Ms Farrugia agrees that she conducted the interview in a manner intended to provide the maximum assistance to the applicant. She assessed that the applicant was competent to give his evidence and that assessment is entitled to weight; NAMJ v Minister for Immigration & Anor [2003] FCA 983 per Branson J at [68 – 69]; SZOVP v Minister for Immigration & Anor [2012] FCA 244 Collier J at [37 – 38]. I do not believe that there is sufficient evidence available to me to conclude that the applicant was unfit to give his evidence or even that because of his disorder there were matters which he was unable to explain to the Reviewer that were relevant to his claims. Under cross examination Ms Farrugia suggested, and her suggestions were taken up by counsel, that there were things that the applicant could possibly have said, such as providing more detail of the alleged persecution, but there is no suggestion that there was any more detail to provide.
The applicant also claims in his submissions that the Reviewer was wrong to proceed on the basis that he suffered from schizophrenia rather than PTSD, but there was no evidence before the Reviewer he did suffer from PTSD at that time. The Reviewer assessed the medical evidence that was before her and gave it the appropriate weight; Minister for Immigration & Anor v MZYHS [2011] FCA 53 per Kenny J at [31 – 33]. With respect to Ms Farrugia much of her concern about the questioning of the applicant appeared to be mere speculation as to how he might have interpreted the way in which the questions were asked or the questions themselves. I do not believe that the applicant has established this ground of the application.
The country information ground
An important constituent of the second respondent’s decision was the existence of country information about the treatment of failed asylum seekers returning to Sri Lanka. The specific piece of information came from the UK Home Office in an information report dated 11 November 2010. Excerpts from that report are set out at CB 243 – 248. Reference is made to it at [50] CB 243 of the Reviewer’s decision record:
“[50]The reviewer noted the country information from the UK Home Office about the treatment of failed asylum seekers and accepted that a person with a profile could face difficulties or mistreatment, but the reviewer had to look carefully at whether or not the claimant’s claim to past experiences would give him a profile came from his employment with the CCWD; his involvement as a student in demonstrations and his identification in the media. She also stated that she believed that the attack on the applicant in 2005, when he participated in a demonstration was serious harm, which gave rise to his mental health problems. She requested two weeks to make further submissions.”
The applicant claims that this information is credible, relevant and significant to the decision made; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [38] and should have been specifically put to the applicant for response. I am satisfied that it was. At [T48] in the transcript annexed to the affidavit of Mr Griffiths there is the following exchange:
“REVIEWER: Okay. The information I’ve read from the home office about what happens to people who are failed asylum seekers and go back to Sri Lanka ---
INTERPRETER: Can you please repeat, sorry?
REVIEWER: The information – country information I’ve read from the UK Home Office report.
INTERPRETER: (TAMIL as interpreted and transcribed): I read the article released by UK.
REVIEWER: Says that all asylum seekers or failed asylum seekers or people who are returned, regardless of their ethnic group ---
INTERPRETER: (TAMIL as interpreted and transcribed): Bit hard to understand.
INTERPRETER: It’s a bit hard to understand.
REVIEWER: Okay. All failed asylum seekers or people who go back to Sri Lanka.
INTERPRETER: From London?
REVIEWER: From Australia or anywhere – failed, people who haven’t succeeded in seeking asylum in another country.
INTERPRETER: (TAMIL as interpreted and transcribed): The people who went to Australia or other countries.
REVIEWER: That they are subject to checks.
INTERPRETER: (TAMIL as interpreted and transcribed): Because they went as refugees, they have been checked to see if they have the eligibility to live in the country.
REVIEWER: And that’s regardless of what ethnic group they belong to, whether they’re Tamil.
INTERPRETER: (TAMIL as interpreted and transcribed): This is regardless of Tamil or other ethnic group.
CLAIMANT:(TAMIL as interpreted and transcribed): Okay.
REVIEWER: And they’re checked for whether they have had any past involvement in criminal activities.
INTERPRETER: (TAMIL as interpreted and transcribed): They have checked for whether they have had any past participation in any criminal activities like murdering or other problems.
REVIEWER: Or any suspected association with the LTTE.
INTERPRETER: (TAMIL as interpreted and transcribed): Or suspected association with like LTTE or other movement.
REVIEWER: So everybody is subjected to questioning.
INTERPRETER: (TAMIL as interpreted and transcribed): Everybody subject to questioning.
CLAIMANT:Okay.
REVIEWER: So it’s a general application of a law.
INTERPRETER: (TAMIL as interpreted and transcribed): It’s a general application of a law.
CLAIMANT (TAMIL as interpreted and transcribed): Yes, yes.
INTERPRETER: Yes, Yes.”
At [T61] there is a further discussion about this document:
REVIEWER: I have sort of looked at the country information in terms of treatment of failed asylum seekers. I’ve referred to the UK Home Office. If there is something else I’m going to rely on, then obviously I’ll need to send you a copy of that as well so you can put that – you know exactly what I’m rely on..
ADVISOR:The UK Home Office, is that the 2010 report?
REVIEWER: It is, November 2010.
ADVISOR:Okay.
REVIEWER: The other one is the US State Reports. I won’t be going to – you know, they’re the two things I think at the moment I’m looking at.
ADVISOR:Thank you.
REVIEWER: Obviously it is all about the treatment of the returnees.
ADVISOR:Thank you.
REVIEWER: I’ll wait two weeks to get a further submission. Thank you very much for your evidence.”
I believe it is quite clear from these extracts that the essence of the Home Office report was put to the applicant at the hearing, that the report was clearly identified and that the applicant, through his agent, was given two weeks to respond to it. I do not believe more was required: Minister for Immigration & Anor v SZQHH [2012] FCAFC 45 at [30] per Rares and Jagot JJ.
The failure to consider all integers ground
There are four matters which the applicant says were not considered but which he describes as “integers of his claims” within the meaning of that phrase considered by the Full Bench Spencer, Merkel and Allsop JJ in Htun v Minister for Immigration & Anor [2001] FCA 1802. The applicant has provided a table in his helpful written submissions which is reproduced below:
| Integer not determined by second respondent | Significant of integer to claim for refugee status/submissions |
| a. That the applicant’s family members recognised him on television. | The applicant’s sur place claim to be a refugee following the High Court case to a significant extent relies on this factual assertion. The second respondent rejects the assertion that this media coverage would cause a fear of persecution, but ignores the integer or the claim that it is likely that he will be recognised by the authorities, because he has already been recognised by his family. |
| b. That the applicant fears that his discussion about the High Court case via telephone may have been monitored by the authorities. | This integer of the sur place claim is also ignored, and is significant for the same reasons as expressed above in relation to being seen by family members on television. |
| c. That failed asylum seekers will not be afforded protection. | This consideration by the second respondent of this integer is no longer pressed. |
| d. That the applicant’s father was accused of assisting the LTTE. | It is clear that post the cessation of the Sri Lankan Civil War, few putative refugees have their claims upheld merely by virtue of being Tamil etc. From the transcript, the significant of having a “profile” was common ground between the second respondent and the applicant’s advisor. Nevertheless, the second respondent has failed to consider whether the applicant has a “profile” due to his family’s involvement with the LTTE. |
| e. That the applicant was questioned by activities and involvement at CCWD (ie the Centre for Child and Women Development). | In simply accepting that routine checks were made at CCWD, the second respondent ignores the questioning which is claimed to have taken place. Again, this supports the applicant as having a “profile” in Sri Lanka and was thus crucial to his claims. |
With regard to integer (a) this matter is mentioned at [25] CB 239:
“[25]On 17 May 2010 after his interview with the first IMR reviewer the claimant’s adviser made a further submission raising a sur place claim that when the claimant was transferred from Christmas Island to Villawood with other detainees they were filmed by the media and images of him were seen by his family members back in Sri Lanka. The adviser submits that “this exposure significantly increased their real risk of persecution if they are returned.”
It is mentioned again at [48] CB 243:
“[48]The claimant stated that he believed his participation in a demonstration; his involvement with student articles; his case in the High Court, his media coverage on his transfer from Christmas Island to Villawood combined would give him a profile as a person that the authorities would take an interest in, along with his Tamil ethnicity and the fact that he is a young male. He stated that he believed that this would give rise to him facing harm by the authorities on his return, and he feared that they would mistreat him.”
The matter is dealt with by the Reviewer at [71] CB 250:
“[71]The reviewer also accepts that the claimant would in all likelihood be identified by the Sri Lankan authorities as a person who had sought asylum in Australia. The reviewer does not accept that his application to the High Court of Australia seeking a review of his firm IMR recommendation or his possible depiction on television at a detention centre, is evidence of anything more than that the claimant is an asylum seeker.”
It cannot be said that this matter was not addressed.
Integer (b) was referred to by the Reviewer at [29] CB 240:
· “In telephone conversations with his family back in Sri Lanka he told them of his matter in the High Court and now fears that these telephone conversations were tapped as he heard strange clicking sounds during the conversations.”
This was only a suspicion in the mind of the applicant. He did not suggest to the Reviewer what might transpire as a result or even what he is alleged to have said to his family that might enhance his claim to fear persecution. Given the vague nature of the claim it would appear to have been dealt with by the Reviewer [72] CB 250 when she says:
“[72]In particular the reviewer does nto accept that the Sri Lankan authorities would impute him with a political opinion by reason of his asylum seeking in Australia. That is, the reviewer does not accept the claimant’s claim that he would be viewed as a person who had information or secrets to give to the Australian government and would in this sense be attributed with an imputed political opinion as anti-government or that his actions here in Australia would lead the Sri Lankan authorities to consider him to be an associate of the LTTE.”
The third alleged integer was a matter noted by the Reviewer at [11] CB 237:
“[11]He states that his father was accused at a point in time of assisting the LTTE so his family continued to move for fear of their safety…”
There is nothing further about this claim recorded. Its only relevance is to the applicant’s LTTE profile. Given the vagueness of the claim, no dates given, no details of the alleged assistance given, and no suggestion of any continuing danger to his father put forward, I am of the view that the Reviewer was entitled to be considered as having taken it into account in her consideration of the applicant’s possible LTTE profile.
The final alleged integer was a matter that was put to both the original and second Reviewer as an example of the applicant’s profile [18] CB 238, [22] CB 239, [44] CB 242. The claims about involvement with the CCWD are dealt with at [67] and [68] CB 249:
“[67] The Reviewer accepts that the claimant had some association with the CCWD and that he may have been checked on entering the hospital to visit patients but does not accept that these checks were more than routine checks and that the claimant was of particular adverse interest to the Sri Lankan authorities.
[68]For the reasons set out above the reviewer does not accept that the claimant came to the adverse attention of the Sri Lankan authorities prior to his departure from Sir Lanka. The reviewer does not accept that the claimant faces harm from the authorities of Sri Lanka on his return for reasons of his involvement with CCWD, his participation in a university demonstration in 2005 or his involvement with student magazines or these events taken cumulatively. No does the reviewer accept that the claimant has a profile on the basis of his actions in Sri Lanka considered individually or taken collectively.”
To the extent that there may be something about his association with the CCWD or his questioning that wasn’t dealt with by the Reviewer specifically I am of the view that those matters would have been subsumed in the findings of great generality; Applicant WAEE v Minister for Immigration & Anor [2003] FCAFC 184 at [47].
The translation issue
The applicant has produced in an affidavit of Mr Griffiths a transcript which indicates the questions asked in English by the Reviewer, the English translation of the words used by the interpreter to the applicant, an English translation of the words used by the applicant to the interpreter in response to the Reviewer’s questions and the English response made by the interpreter on behalf of the applicant to the Reviewer. A perusal of this document indicates that this is not the happiest of interpretations. The applicant made a complaint about a large number of matters in his written submissions. I shall deal with these below but first shall consider the criteria by which they should be judged.
The test to be applied
In relation to administrative matters, as opposed to trials (see Young J and M. W. Young, ‘Legal Language’ (1990) 64 The Australian Law Journal 761) the fons et origo is usually considered to be Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6[4] where Kenny J gave a lengthy and considered discourse on the required standard of interpretation, finding that :
[4] “Perera”
“[28] In Tran, the court sought to define a standard of interpretation by reference to a number of criteria “aimed at helping to ensure that persons with language difficulties have the same opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings”: [1994] 2 SCR at 985. According to the court, “[t]hese criteria include, and are not necessarily limited to, continuity, precision, impartiality, competency and contemporaneousness”: [1994] 2 SCR at 985. The criterion of continuity means that breaks in interpretation and mere summaries of a proceeding are not acceptable: [1994] 2 SCR at 986. That conclusion accords with the decision in Kunnath v State [1993] 1 WLR 1315. An interpreter must also be, and be perceived to be, impartial. A full court of this court so held in Sook Rye Son, to which I have already referred. No question arises in this case as to the contemporaneousness of the interpretation, and so the question whether, for tribunal purposes, an interpretation must be contemporaneous is for another day. Subject to what follows, the criteria in question on this application are those of precision and competence.
[29] The need for precision or, as I think it is better put, accuracy is clear enough. As Menzies J said in Gaio (1960) 104 CLR 419 at 433:
What is important is what the parties to the [interpreted] conversation say to one another and the only importance of the interpreter is to serve as an accurate means of communication between them [emphasis added].
As noted earlier, there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. While the interpretation at a tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language. On a petition for a writ of habeas corpus seeking judicial review of an order for exclusion and deportation against a Haitian refugee, the US Court of Appeals for the second circuit said, in Augustin v Sava and Doyle 735 F 2 at 37–8:
Without attempting precisely to map the contours of due process in the immigration area, we think that the protected right to avoid deportation or return to a country where the alien will be persecuted warrants a hearing where the likelihood of persecution can be fairly evaluated. Since Congress intended this right to be equally available to all worthy claimants without regard to language skills, we think that an applicant for relief … must be furnished with an accurate and complete translation of official proceedings.
As a sequel to this right, translation services must be sufficient to enable the applicant to place his claim before the judge. A hearing is of no value when the alien and the judge are not understood. … The very essence of due process is a “meaningful opportunity to be heard”. … To erect barriers by requiring comprehension of English would frustrate the inclusive aim of the UN Protocol and the intent of Congress.
Although the above passage invokes some concepts that have no part to play in the Australian context, the central proposition concerning the requisite accuracy and completeness of the interpretation provided is plainly correct.”
At [38] Kenny J noted that the “crucial question” to be answered is whether:
“the interpretation before the tribunal was so incompetent that [the applicant] was prevented from giving his [or her] evidence.”
However, this is qualified at [45] where her Honour opined:
“It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the tribunal. The departure must relate to a matter of significance for the applicant's claim or the tribunal's decision”
Her Honour’s views were the subject of some criticism in Alejandra Hayes and Sandra Hale’s article “Appeals on incompetent interpreting” (2010) 20 Journal of Judicial Administration 119 at 127 where it was suggested that they were inaccurate “from a forensic linguist’s or legal interpreting expert’s perspective”. Hayes and Hale also suggest that there is a “prevailing misconception among both judges and legal practitioners that interpreting is about relaying utterances word-for-word, without taking into account the context or the speaker’s style, culture and intention.”
Nevertheless, Kenny J’s views have been accepted in legal circles: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 per Mansfield, Emmet and Selway JJ; WACO Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; WALN v Minister for Immigration and Multicultural and Indigenous [2006] FCAFC 131; MZXLE v Minister for Immigration and Citizenship [2007] FCA 1159 per Tracey J.
In MZXLE, Tracey J stated:
“[16] The appellant relied on the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 to support the proposition that an inadequate or inaccurate translation of evidence before the Tribunal renders the Tribunal unable to afford a non-English speaking applicant any effective opportunity to give evidence to it. Such a failure can constitute a contravention of s 425(1) of the Act and a jurisdictional error. In Perera it was not alleged that a particular passage of evidence, given by the applicant, was erroneously translated. Rather, his complaint was “that certain features of the transcript indicated that the interpretation was of poor quality or … incompetent.” (at 22). Her Honour examined the transcript as a whole. She found that certain of the applicant’s answers were unresponsive and, in some instances, “virtually incoherent”. There appeared to be a misunderstanding of the Tribunal’s questions and there was confusion in the communication such that the Tribunal was forced to give up a line of inquiry on a significant aspect of the applicant’s claim.
His Honour then accepted what fell from Kenny J at [25] (previously extracted). In the particular circumstances of that case, His Honour concluded at [18]:
“I regard the mistranslation on which the appellant relies to be of marginal significance: a variation or a shade of meaning is involved rather than any gross error. More importantly, the error was not material in the sense that it played no direct part in the reasoning process of the Tribunal. At best for the appellant, it may have resulted in the Tribunal marginally underestimating the intensity of the principal’s commitment to the welfare of the appellant. The error did not deprive the appellant of the opportunity to give evidence and present arguments to the Tribunal.”
In WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 the Full Bench: Ryan, Tamberlin and Middleton JJ. said at [29]:
“To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (above) at [38]–[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry; see Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, at [18]. Those authorities were applied in Appellant P 119 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230and WACO Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, at [63]–[68].”
Middleton J repeated this formula in SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 at [21]:
“With respect to the first ground, in order for the appellants to succeed they need to establish by probative evidence that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants.”
This seems to me to be a clear expression of the test to apply in cases such as these.
Application of the test
The applicant submits that the interpreting in this case was so inadequate as to deprive him of the ability to take part in the proceedings. It is submitted that interpreting errors individually and collectively affected crucial findings of the second respondent to the point of jurisdictional error. The submissions are lengthy. A copy has been placed in the file. They are, for the most part, referred to in the order in which they appear but are generally substantially reproduced herein.
The first alleged error is in the interpretation of introductory remarks of the Reviewer. It is alleged that rather than directly translating the Reviewer, the interpreter summarises what is taking place and tells of housekeeping issues [T2: 1-5].
“REVIEWER: I welcome you to your interview, and for the record I might just introduce myself. I’m Irene O’Connell, and I’m the senior reviewer who will be looking at your case.
INTERPRETER (TAMIL as interpreted and transcribed): Yeah, she said that she is Irene, senior reviewer. She has turned the recorder on. She is going to talk.”
Whilst this may indicate that the interpreter is not translating directly it has no bearing on any of the findings. It may indicate that the interpreter is not of the highest quality, or it may indicate that the interpreter recognises the introductory nature of the statements. It would arguably have little effect on the applicant’s perception of the interview.
The applicant next alleges that there is evident friction between the applicant and the interpreter, the applicant suggests that the interpreter “continually seems to order the applicant to ‘say it!’”. This alleged friction occurs at [T2: 25 – T3:5]:
“REVIEWER: So, for the record, would you like to state our name?
CLAIMANT (TAMIL as interpreted and transcribed): I will say.
INTERPRETER: I will say.
INTERPRETER (TAMIL as interpreted and transcribed): Say it!
CLAIMANT: [states name]
REVIEWER: Thank you. And your date of birth?
INTERPRETER (TAMIL as interpreted and transcribed): Your date of birth, Month, Year?
CLAIMANT (TAMIL as interpreted and transcribed): Can I say it in Tamil? I say it in Tamil.
INTERPRETER: Can I say it in Tamil? I say it in Tamil
INTERPRETER: Say it.”
In my opinion to suggest that this portion of the interview suggests friction and is evidence of the interpreter ordering the applicant to “say it” is an embellishment. Whilst the inclusion of an exclamation mark after the first instance of “say it” may indicate some urgency, it would appear from the section as a whole that the interpreter is merely prompting the applicant’s response. Contrary to the applicant’s submissions there is no “continuous” element to the prompts. Indeed, the second occurrence of the term appears to be a direct translation of the applicant’s query as to whether he can reply in Tamil and the final use of the phrase appears to be in English. To infer that there was some sort of altercation or friction is to go too far. One might equally infer that the interpreter was voicing an interviewer’s nod or gesticulation to prompt the applicant to go ahead.
The applicant submits that:
“At [25,3] there is a significant departure from that which was actually stated and that which was interpreted. The reviewer said “So, I take it that you understand the Convention definition of a refugee?”, however, the interpreter said “You know what a refugee is, don’t you?”. A ‘refugee’ in lay parlance potentially has a very different meaning from the legal definition. A lay person would tend to consider anyone who has fled his or her home land to be a refugee, with no concept of the technical nature of the Convention and the cases interpreting same. This is particularly important in the context of an applicant who considers himself to be a refugee.”
This may be too selective, and too narrow a reading, of the exchange that took place:
“REVIEWER: So I take it that you understand the convention definition of a refugee.
INTERPRETER (TAMIL as interpreted and transcribed): You know what a refugee is? Don’t you?
REVIEWER: If you like, I can re-explain it to you, but I thought that perhaps we’ll take it you do understand it, unless you would like me to explain it.
INTERPRETER (TAMIL as interpreted and transcribed): If you know, it is fine; otherwise she can explain it to you.
CLAIMANT (TAMIL as interpreted and transcribed): Because I have faced two interviews already, I know about it.
INTERPRETER: Because he faced two interviews already, so he knows.
REVIEWER: That’s what I thought.”
Whilst this does indicate a less-than-ideal standard of interpretation, it also, taken as a whole, suggests that the applicant was aware that the interpreter was referring to the concept of ‘refugee’ in the Convention sense. He indicates, and the Reviewer is made to understand, that his understanding of the term “refugee” has come from the context of prior interviews, as opposed to being a layman’s understanding of the term. The omission of the reference to the “convention definition” is distinct from cases where mistranslation of key words have resulted in jurisdictional error. In SZLDY v Minister for Immigration & Citizenship [2008] FMCA 1684, for example, FM Barnes considered the scenario of an interpreter constantly mistranslating the word “persecution” as “prosecution”:
“The mistranslation of “persecution” and “prosecution” had a clear impact on the conduct of the hearing. It limited the applicant’s ability to give evidence effectively and the Tribunal’s understanding of what was being conveyed (and why) in response to mistranslated questions. It can be inferred that at least some of the exchanges in which such mistranslation occurred were material to the Tribunal’s assessment of the applicant’s evidence as non-responsive, generalised and vague and hence to its adverse credibility finding.”
In this case, the omission had at most a minimal effect on the conduct of the hearing, and did not affect the applicant’s responsiveness to the questions posed.
The applicant points to poor translation at [T5:12] and [T6:18] of procedural matters, such that “[p]otentially, the applicant may have made further claims at this point had he been given the chance to do so.” The applicant also submitted orally that the translation of “statements” as “issues” was of significance because statements relate to the applicant’s own case, whereas issues are more general. The impugned statements are as follows:
“REVIEWER: And give you the chance to make any statements you’d like to make.
INTERPRETER: (TAMIL as interpreted and transcribed): You can tell the issues you know.
CLAIMANT: Okay.
REVIEWER: And I’ll also give your adviser the opportunity to make some submissions.
INTERPRETER (TAMIL as interpreted and transcribed): She will give you the chance to tell her as well. Okay?
CLAIMANT: Okay” [T5:12-18]
“REVIEWER: So I think I have a fair understanding of what your claims are.
INTERPRETER (TAMIL as interpreted and transcribed): So, she knows fairly what your issue is.
CLAIMANT: Okay.
REVIEWER: And I will give you the chance to also explain them a bit further.
INTERPRETER (TAMIL as interpreted and transcribed): Also, she will give you the chance to you to explain about your case, okay?” [T6:14-19]
Again this illustrates translating that is not perfect, or word-for-word. It is clear, however, that the Reviewer was explaining the procedure that was going to be followed and not inviting the applicant to make comments at that point. I do not believe that the applicant was deprived of the ability to present his case or to take part in the interview in a meaningful way.
The applicant suggests that the second extract shows that the invitation of the adviser to make submissions was not conveyed to the applicant. Certainly on its own this does not demonstrate procedural unfairness, it must be remembered that the adviser would have understood the meaning of the invitation and that submissions were made by the adviser (both at end of interview and post-interview) CB 243. This does not indicate procedural unfairness.
The applicant alleges misinterpretation in regards to a discussion about the occupation of the applicant’s brother.
“INTERPRETER (TAMIL as interpreted and transcribed): What does your brother do?
CLAIMANT (TAMIL as interpreted and transcribed): He rents, hires vehicle, it’s called Dolphin which runs from Vavuniya to Jaffna.
INTERPRETER: He does a transportation job. Like, he lets vehicles from Vavunya to ---
REVIEWER: Is he a driver?
CLAIMANT: Sorry.
REVIEWER: I know you know a little bit of English it’s always dangerous.
INTERPRETER (TAMIL as interpreted and transcribed): She is asking if he is a driver.
CLAIMANT (TAMIL as interpreted and transcribed): No, he is not a driver.
INTERPRETER: He is not the driver.
REVIEWER: So can you explain to me what his work is?
INTERPRETER (TAMIL as interpreted and transcribed): She wants you to explain what his job is?
CLAIMANT (TAMIL as interpreted and transcribed): He is the proprietor. He owns two vehicles. He has two drivers and renting the vehicles, that is his job.
INTERPRETER: He got two vehicles, he is sort of an agent for the vehicle, and he lets the vehicle goes different places.
REVIEWER: Okay, so he rents out the vehicles?
INTERPRETER (TAMIL as interpreted and transcribed): That means he rents the vehicles?
INTERPRETER: Yeah, you’re correct, rents out his vehicle.”
The applicant notes that the interpreter fails to translate Jaffna as one of the locations that the vehicles go between. The significance of this is not clear. The Reviewer asked about the brother’s occupation and although there was some confusion, this question was answered. His brother’s occupation was of little relevance to the decision of the Reviewer, and appears in the decision record only as background information [31] CB 240.
The applicant also points to a mistranslation when the Reviewer asked about his sister’s attendance at university in Jaffna. The applicant was incorrectly asked whether he himself attended university [see T9: 9-15]. It is argued that this mistranslation may have reduced the Reviewer’s understanding of the applicant’s involvement at university in Jaffna. Although the transcript does show a mistranslation, the relevance of the sister’s attendance at the university in Jaffna to the applicant’s involvement there is unclear. Further, in the decision record it is made clear that the Reviewer understood that the sister did attend university in Jaffna [31] CB 240.
The applicant suggests that the Reviewer criticised the quality of the translation at various points [T11: 2] and [T14: 35] to [T15:8]. At [T11: 2] the Reviewer does indeed ask the interpreter to interpret directly, and this is not translated to the applicant. At [T14:35] to [T15: 8] the Reviewer does ask the interpreter to interpret in the first person. Again the interpreter does not translate this discussion, is asked to explain it, and does so in a manner that is not wholly clear, but to the satisfaction of the applicant.
The applicant claims that the translation of his mental health issues was inadequate at [T16:38] [submissions paragraph 38]. At [T16: 36 – T17:34] the following exchange takes place:
“REVIEWER: I notice, in the letters that you provided to us from the hospital, from Jaffna hospital, the psychiatric unit, it says that you stopped taking – going for visits.
INTERPRETER (TAMIL as interpreted and transcribed): from seeing you documents you have provided from the psychiatric unit it says that you have stopped taking the medicines.
CLAIMENT (TAMIL as interpreted and transcribed): I stopped when I came to Vavuniya.
INTERPRETER: He says that he came to Vavuniya and stopped.
REVIEWER: Why did you stop having treatment?
INTERPRETER (TAMIL as interpreted and transcribed): Why did you stop having treatment?
CLAIMANT (TAMIL as interpreted and transcribed): The doctor said to me, “You don’t need to take treatment. You’re fine now, so you’d better stop.”
INTERPRETER: The doctor said to me, “You don’t need to take treatment. You’re fine now, so you’d better stop.”
REVIEWER: Well, actually, in the letter it says you will require continuous monitoring and supervision.
INTERPRETER (TAMIL as interpreted and transcribed): The letter says that the doctor should continuously see you.
CLAIMANT (TAMIL as interpreted and transcribed): The doctor in Jaffna said that, the doctor in Vavuniya, he is the one who saw me first; he said that I do not have to take it.
INTERPRETER: The Jaffna doctor said, “You don’t need to,” but the Vavuniya doctor said, “You can stop.”
REVIEWER: Okay. Well in the letter that’s from Jaffna hospital, teaching hospital, that’s the letter that says you should be seen and should take medication.
INTERPRETER (TAMIL as interpreted and transcribed): The letter from Jaffna says you should be seen and should take medication.
CLAIMANT (TAMIL as interpreted and transcribed): Yes.
INTERPRETER: Yes.”
The applicant claims that there is a difference between stopping medication and the cessation of appointments with a psychiatrist. Consequently the Reviewer’s understanding of the applicant’s mental condition was allegedly compromised. However, the above extract seems to suggest that the applicant was aware of both aspects of the treatment and conveys this. The interview continues to the point at which it is discerned that the applicant was told to continue to take his medication throughout his life and that he has been doing this. The Reviewer’s understanding of the applicant’s treatment is noted at [34] CB 241:
“The reviewer noted that in the documents provided from both Jaffna and Vavuniya refer to the applicant discontinuing his medical treatment. The claimant stated that he discontinued it because the doctors told him he was fine and he was better. The reviewer noted that one of the letters from his treating doctor stated that he had discontinued his medical treatment and that he required continuous monitoring and supervision. The claimant stated that he has continued to take his medication. Asked if he understood what his medical condition was, he stated that he suffers mentally. Asked if he is currently taking medications he stated that he is. Asked how he currently feels, the claimant stated that he feels very good and that he feels like new since resuming his medications.”
No translation issues are pointed to, and nor do they arise, in the questions and responses in relation to the applicant’s condition at the time of the interview. There appears to be little foundation to the claim that poor interpretation led to a misunderstanding as to the state of the claimant’s mental health.
The applicant also raises concerns about the translation of information about the applicant’s mental illness where at [T27: 33] the applicant states: “After that, because they hit me on the head and I had mental illness, and in 2007 I got treatment”, but that the interpreter omits the reference to mental illness when translating: “Again when I was being hit on my head, I got treatment in 2007”. This does cause the Reviewer to be confused and to think that the applicant has claimed to have been hit on the head a second time in 2007.
Despite the poor interpreting the Reviewer does grasp that the applicant believes his mental illness resulted from the 2005 incident. At [38] CB 241 the Reviewer recounts her understanding of this section of the interview:
“Asked about his incident at Jaffna University, he stated that students at Jaffna University took part in a demonstration following mistreatment of a Tamil girl by the Navy. He stated that he participated in the demonstration which took place in December 2005 and during this demonstration he was arrested and attacked. He stated that he landed in hospital for one day as he was hit on the head and needed to receive treatment. He stated that the army had hit him and he believes that this attack caused his current mental condition.”
The Reviewer’s central concern at this point is whether anything happened between the incident and the applicant leaving Sri Lanka that had caused him to fear to returning. This line of questioning results in a negative response from the applicant (see [T28:32-40] and [39] CB 241. In the findings and reasons the Reviewer’s assessment of the mental illness accurately reflects the presentation of it by the applicant:
“The reviewer notes that the claimant has undergone medical treatment in Sri Lanka for a condition which has been variously described in the medical reports from Sri Lanka as schizophrenia and a psychotic illness. The reviewer notes that the claimant discontinued treatment in Sri Lanka and that at the time of his appearance before the reviewer was receiving medical treatment and he indicated to the reviewer that he was competent to give his evidence.” [55] CB 248
The fact of the applicant’s mental illness was clearly accepted by the Reviewer. It is not a ground for seeking Australia’s protection, it is not an integer of the claim. To the extent that there might be some confusion about it, I do not accept that it caused the Reviewer to misunderstand the applicant’s claims to have suffered Convention related persecution or to have a well-founded fear of returning to Sri Lanka.
The applicant claims a major difference in meaning between what was said and what was interpreted at [T21:10]. It is claimed that applicant made a claim that he was “attacked by the armed forces” and that this was interpreted as “ill-treated by the army”. The translation at this point relates to the applicant’s claim that the authorities in Sri Lanka would pursue him as someone who would have told secrets to Australian authorities. Certainly, the translation of the applicant’s concerns is poor [T21:1-24].
“INTERPRETER (TAMIL as interpreted and transcribed): You said that you would have told the secrets of the army.
REVIEWER: Can you explain that to me a little bit more?
INTERPRETER (TAMIL as interpreted and transcribed): Can you explain more about that?
CLAIMANT (TAMIL as interpreted and transcribed): Because we were unable to live in Sri Lanka, we have migrated here as refugees, therefore what the army did there, the persecutions, attacks, all these we would have told here, it’s that problem.
INTERPRETER: Since I came here as a refugee, I have been ill treated by armed forces. I would have told all about how the army forces ill treated me, how they dominated me sort of thing.
REVIEWER: There’s a lot of information publically available already about things that the Sri Lankan army has done, so you said you had secrets. I’m just wondering what you mean. Do you have something more than what we know?
INTERPRETER (TAMIL as interpreted and transcribed): The public already know about these things on the TV etc. But what do you mean by “secrets.”
It seems to me that the Reviewer did understand the essence of the applicant’s claim that the army would think he had told the Australian authorities about its treatment of Tamils. It did not consider that a concern because of the general availability of such information (see [38] CB 241). It is of note that the impugned phrase “attacked by the armed forces” does not appear at the designated point in the transcript. However, if the concern is that the interpretation meant that Reviewer was unaware of the plaintiff being attacked, as opposed to being ill-treated, this claim is also unfounded. At [33] CB 240, the Reviewer states:
“The reviewer noted reports on the claimant’s mental health and asked him about this. The claimant stated that when he was attending a student demonstration he was attacked by the armed forces and that he required medical treatment for this.”
It is clear that the Reviewer was under no misconception that the plaintiff had only been “ill-treated” as opposed to having been “attacked” by armed forces. This is perhaps because in a passage found at [T14:17-21], also relating to the applicant’s attack and subsequent mental harm, the phrase “attacked by the armed forces” was accurately translated:
“CLAIMANT (TAMIL as interpreted and transcribed): When I was in Sri Lanka, I was attacked by the armed forces and for the first time I was mentally disturbed and I had treatment at Vavuniya hospital in Sri Lanka.
INTERPRETER: When he was in Sri Lanka, he was attacked by the army forces, and he has got disturbed in his mind, and he was being treated in the Vavuniya hospital.”
The next alleged error, relates to the questioning about a student protest and the army’s mistreatment of the applicant at that protest. The applicant submits that:
“The second respondent asks the applicant about mistreatment by the Sri Lankan army and also participation during a student demonstration at Jaffna University. This was simply translated as “Can you please explain the student demonstration?” The difference in meaning is not only vast, but relates to a central issue. One version relates to general student activities relating to the demonstration, whereas the other relates to abuse by the Army in relation to the demonstration. The latter, which was not translated to the applicant, is relevant to his characterisation as a refugee or otherwise.”
This submission misunderstands the transcript of the interview. At T21 the following discussion occurs:
“REVIEWER: So the only time from written statements I’ve read that you were mistreated by the army, that I can gather, is when you participated in the student demonstration at Jaffna University.
INTERPRETER: Can you please explain the student demonstration?
REVIEWER: Okay, just translate maybe – I’ll say it to you again, but just directly translate to the – interpret.
INTERPRETER: Yes.
REVIEWER: The only time, having read your documents, the only time where I’ve had material about you being mistreated by the Sri Lankan army was when you participated in a student demonstration at Jaffna University.
INTERPRETER (TAMIL as interpreted and transcribed): That means, the only occasion you have been mistreated by the army was when you participated in the student demonstration.
CLAIMANT (TAMIL as interpreted and transcribed): Yes.
INTERPRETER: Yes.”
The interpreter’s question “Can you please explain the student demonstration?” was directed at the Reviewer and asked in English. The Reviewer clarified the question and it was asked of the applicant. The question posed to the applicant is clearly one that positions the ill-treatment of the army as having occurred at the student demonstration, and asks whether that was the only time the applicant was mistreated by the army. No significant error in translation is apparent from the exchange.
The applicant claims that at [T24: 36] the Reviewer summarised the applicant’s claims and that this summary was mistranslated, thus it is claimed that the Reviewer’s attempts to provide procedural fairness were stymied. However, again this is a limited reading of the transcript. If the applicant were to read on, it becomes apparent that the original summary was fleshed out [T24: 30-43]:
“REVIEWER: You see, what you’ve described to me is why you can’t go back to Sri Lanka. You said because you’re Tamil, because you came to Australia illegally, because you might be suspected of having told the secrets of the Sri Lankan army, and because you’re a student at Jaffna University. None of these things put together – to me don’t indicate that you will face harm or persecution if you were to go back to Sri Lanka.
INTERPRETER (TAMIL as interpreted and transcribed): From the four things you have mentioned, she does not understand, you will face harm if you were to go back to Sri Lanka. The reasons you have stated are, you must have told the secrets of the army.
CLAIMANT (TAMIL as interpreted and transcribed): I said persecution of the army.
INTERPRETER (TAMIL as interpreted and transcribed): Persecution of the army and you were a student at university and you are a young Tamil and the forth [sic] reason.
INTERPRETER: Can you please read it again, the other one.
REVIEWER: Okay. Tamil ---
INTERPRETER: Yeah.
REVIEWER --- young Tamil male ---
INTERPRETER: Yeah.
REVIEWER: ---Student at Jaffna University ---
INTERPRETER: Yeah.
REVIEWER: ---Came to Australia illegally.
INTERPRETER Yeah.
INTERPRETER (TAMIL as interpreted and transcribed): Came to Australia illegally.
CLAIMANT (TAMIL as interpreted and transcribed): These four.
INTERPRETER (TAMIL as interpreted and transcribed): These four are not evidence that you were persecuted by the army.”
On the whole I think the above demonstrates that the applicant was made aware of the four reasons and that they weren’t sufficient to demonstrate a reasonable fear of persecution on return to Sri Lanka, and then at [T33: 32] he introduces the claim about the magazine article in response to the Reviewer’s concerns. The applicant’s concerns at this point of the submissions are not made out.
The applicant submits that poor translation of the Reviewer’s question as to whether the applicant was in hiding became an issue. It is submitted that the translation of “in hiding” to “in wondering hiding” affected the Reviewer’s understanding of the applicant’s fear. At [T31:45 – T32:15], whilst discussing the applicant’s completion of his university degree, the following exchange takes place:
“REVIEWER: So you weren’t in hiding or anything?
INTERPRETER: What do you mean?
REVIEWER: You weren’t in hiding?
INTERPRETER: In hiding, can you explain it, please?
REVIEWER: Hiding, you weren’t hiding?
INTERPRETER (TAMIL as interpreted and transcribed): You were not wondering hiding?
CLAIMANT (TAMIL as interpreted and transcribed): No, the reason is because I was a university student.
INTERPRETER: No. Reason, because I was a student at uni.
REVIEWER: So are you saying once you stopped studying, then it became possible that the army would try to harm you?
INTERPRETER: (TAMIL as interpreted and transcribed): After you stopped studying, did you think that the army will give trouble to you?
CLAIMANT (TAMIL as interpreted and transcribed): Yes, I did. Because of thinking that I came to Australia.
INTERPRETER: Yes, thinking of that only, I came to Australia”
What does appear from this is that the applicant was able to respond effectively to the Reviewer in a manner that suggests an understanding of the questions intended to be posed. He effectively conveyed that he was not in hiding and that he need not be because he was a university student. This explanation was not accepted by the Reviewer:
“The reviewer is not satisfied that, but for his status as a student, the authorities would have sought to arrest, detain or question him. The reviewer does not accept that if the claimant was of adverse interest to the Sri Lankan authorities they would have withheld from taking action against him simply by reason of the fact that he was a student.” [64] CB 249.
It is submitted that when the Reviewer put to the applicant that nothing had happened to him since the university demonstration in 2005, this was translated as a question relating to threats from the army specifically and not Sri Lankan authorities generally, and that reference to the 2005 demonstration was omitted.
“REVIEWER: From what you’ve told me, it seems to me that apart from when you were injured in the demonstration in 2005, nothing adverse – or you weren’t in trouble with the Sri Lankan authorities until you decided to leave Sri Lanka illegally.
INTERPRETER (TAMIL as interpreted and transcribed): Apart from the incident you were persecuted by the army in 2005, until you came to Australia, you were not under threat by the army!
INTERPRETER: No.
REVIEWER: Nothing happened to you?
INTERPRETER (TAMIL as interpreted and transcribed): Nothing happened to you?
INTERPRETER: No.”
There is perhaps merit to the concern here, it is certainly another example of interpreting to a less than ideal standard. However, the applicant may be using too fine toothed a comb. If it is suggested that the applicant was deprived of the opportunity to discuss anything else that may have happened before his departure that would cause his fear of return, this complaint is unfounded when the questions which follow shortly afterwards inquire as to whether there is any other reason the applicant fears returning to Sri Lanka [T33]. Indeed the general question “Nothing happened to you?” may be considered to suffice. See also [T38] where the same concern arises:
“REVIEWER: But you haven’t really faced any harm from the authorities before you came to Australia.
INTERPRETER (TAMIL as interpreted and transcribed): Also, you didn’t face any persecution by anyone until you came to Australia.
REVIEWER: And from your evidence, your participation in a demonstration and your association with that magazine, I’m not convinced that gives you that that means the authorities would take an extra interest in you when you were to return to Sri Lanka.
INTERPRETER (TAMIL as interpreted and transcribed): She is saying that she is not concerned that because of your participation in the demonstration in 2005 and the involvement with this magazine you will be in trouble. Those are your two evidence [sic].”
The applicant complains that the interpreter failed to translate a compound question at [T34:31-33]:
“REVIEWER: Were you a student activist, or what was the magazine you wrote in?
INTERPRETER (TAMIL as interpreted and transcribed): Which magazine did you write in?”
Again there is potentially merit to this concern. Equally though, as discussion continued about the magazine and the article written, it would appear that the Reviewer’s preliminary question was answered by implication. It is also possible that the Reviewer changed her question and this change is not fully apparent from the transcript. Whilst the translating of the content of the article written is itself problematic (see [16] of these reasons below), the point attempted to be made by the applicant is conveyed [42] CB242.
The applicant claims that at [T33:28] the mistranslation of “Is there any other reason you fear harm if you were to go back to Sri Lanka?” to “Is there any other reasons?” takes place. The transcript in evidence has at [T33:28]:
“REVIEWER: Is there any other reason you fear to go back to Sri Lanka?
INTERPRETER (TAMIL as interpreted and transcribed): Is there any other reason that you fear to go back to Sri Lanka?”
However, the impugned translation does occur at [T35:26-25]:
“REVIEWER: Is there any other reason you fear harm if you were to go back to Sri Lanka?
INTERPRETER (TAMIL as interpreted and transcribed): Is there any other reasons?”
It is claimed that this mistranslation denied the applicant the chance to “make out his case generally, or to expand on or clarify claims previously made.” However, in response to the question as put, the applicant did put forward another reason as to why he might fear harm, his involvement with a different magazine. [T35:30]:
“CLAIMANT (TAMIL as interpreted and transcribed): I was publishing a magazine called Metti Olli.
INTERPRETER: I did a magazine called (foreign language)
REVIEWER: And when you said you did a magazine, do you mean you wrote this, or can you explain to me what your participation in this magazine was?
INTERPRETER (TAMIL as interpreted and transcribed): Did you write this magazine?
CLAIMANT (TAMIL as interpreted and transcribed): Yes, I published this with not just myself but some other people’s articles as well.
INTERPRETER (TAMIL as interpreted and transcribed): Yours and some others as well?
CLAIMANT (TAMIL as interpreted and transcribed): Yes, mine and others.
INTERPRETER: It’s a few articles related to him and his – and someone else.
REVIEWER: Can you tell me what the articles are about?
INTERPRETER (TAMIL as interpreted and transcribed): What are the articles about?
CLAIMANT (TAMIL as interpreted and transcribed): They were not related to politics, excuse me, but there was a magazine called Chudar Oli which was publishing opinions against the government and because of this, there was a danger that Metti Oli and Chudar Oli has connection. Do you understand? In this there was no articles related to politics.
INTERPRETER: There is no – nothing about the government in this magazine, but there was a newspaper – there was a magazine called (Foreign language).
REVIEWER: Okay.
CLAIMANT (TAMIL as interpreted and transcribed): But, there was this magazine called Chudar Oli which was publishing articles pointing out the government faults.
INTERPRETER: Used to publish evidence about the government.
CLAIMANT (TAMIL as interpreted and transcribed): Because both having similar names Oli, Oli the government has connected mine with the other one and looked at it in that way by the government.
INTERPRETER: Because this – that – the previous magazine’s name is (foreign language) it has the name (foreign language) and the (foreign language) also has the name (foreign language) so there might be a connection between both.”
This extract demonstrates that the applicant did understand the original question asked, and responded appropriately. This may be because the impugned error was preceded by the correct translation of the same question at [T33: 28]. It also demonstrates the limited abilities of the interpreter, but eventually the point was made that the applicant feared that his involvement with one non-political magazine could be confused by the government as involvement with a magazine that was political because of their similar names see [42] CB 242. Whilst it appears in the extract that the interpreter failed to translate the applicant’s statement that the government has in fact made the connection, this is fleshed out between [T36: 32 – T37:24] where it is conveyed that detectives had called some students to ask about the connection. It is further accurately conveyed that there is in fact no connection between the magazines.
Points [49] - [55] above deal with alleged discrepancies relating to a central issue for the interpreter, that is, whether the applicant had a profile which would cause him to come to the particular attention of Sri Lankan authorities. At times the impugned sections of the transcript demonstrate that the interpreting was below standard, however, procedural fairness was not affected. The Reviewer made it clear to the applicant that she was not satisfied that the reasons he had been giving were sufficient to give rise to such a profile and gave opportunities to expand on those reasons and to give any additional reasons. At [66] CB 249 the reviewer concludes:
“The claimant’s involvement in the demonstration in 2005 was that of an ordinary demonstrator among many others; his article was in a small student magazine on the likely success of the peace accord. His claim that the authorities would confuse the name of the student magazine he was involved with, with that of a prominent political magazine was far fetched and without foundation.”
She then deals with a claim about the applicant’s involvement with the CCWD that does not appear in any impugned mistranslation, before continuing at [68]:
“For the reasons set out above the reviewer does not accept that the applicant came to the adverse attention of the Sri Lankan authorities prior to his departure from Sri Lanka. The reviewer does not accept that the claimant faces harm from the authorities of Sri Lanka on his return for reasons of his involvement with CCWD, his participation in a university demonstration in 2005 or his involvement with student magazines or these events taken cumulatively. Nor does the reviewer accept that the claimant has a profile on the basis of his actions in Sri Lanka considered individually or taken collectively.”
These are findings of fact based in part upon the evidence the applicant gave orally. The applicant’s conveyance of evidence was unaffected by errors of interpretation, and the applicant was given the opportunity to respond to the Reviewer’s concerns about his profile related claims and to present further reasons. No jurisdictional error is apparent due to the interpretation issues dealt with at those points.
At [48] the applicant submits that the interpreter failed to correctly translate the Reviewer as she redirected the interview. The applicant had been talking about other failed asylum seekers (whom he claimed were students who studied with him) facing persecution following their return from the UK. At [T40: 24-35] the following exchange takes place:
“REVIEWER: You see, I have to focus on you and what might happen to you, and whether there’s a real chance you face persecution.
INTERPRETER (TAMIL as interpreted and transcribed): She is saying that she is focusing on you.
CLAIMANT (TAMIL as interpreted and transcribed): Whatever happens to others will happen to me.
INTERPRETER Whatever is happening to them will happen to me.
REVIEWER: That’s an assessment I have to make.”
The final statement of the Reviewer was not translated. It appears from the applicant’s continued attempt to discuss other returnees that he did not understand the instruction, but the discussion ended shortly thereafter. It is evident that the adviser then came into the discussion:
“REVIEWER: Okay. You have to give that to your advisor, and if you think it’s relevant, you have to have it interpreted.
ADVISOR: Yeah, we can work through it with Mr A, and we can – maybe prioritisations.
REVIEWER Okay.
INTERPRETER So he’s saying it’s, like, the same community,”
It would appear that whilst the Reviewer was talking with the advisor, the applicant continued to talk to the interpreter, and the Reviewer’s remarks were not translated. However, the adviser was clearly aware of the point made by the applicant that he believed the persecution suffered by others was relevant to his claim and had an opportunity in post-hearing submissions to enlarge upon it. I am also of the view that the applicant was made aware of the Reviewer’s concern that the applicant understood that her focus was upon his individual case. I do not believe that this demonstrates that the applicant was deprived of the chance to make out his own case.
It is further submitted that a failure to correctly interpret the applicant’s fear that there would be a future war led to a claim not being considered by the Reviewer. When the applicant is explaining that his family have not had any difficulties back in Sri Lanka the following exchange takes place at [T41:35- T42:18]:
“REVIEWER: So I understand that your family are – from what you’ve told me, that they haven’t had difficulties themselves, and they’re in Sri Lanka at the moment.
INTERPRETER (TAMIL as interpreted and transcribed): As you told me, your family haven’t had any difficulties.
INTERPRETER: Yes.
REVIEWER: So they haven’t run into any difficulties because they’re Tamils?
INTERPRETER (TAMIL as interpreted and transcribed): Because they are Tamils they haven’t had any difficulties?
CLAIMANT (TAMIL as interpreted and transcribed): Not till now, could happen in the future.
INTERPRETER: Not now, but may be in the future.
CLAIMANT (TAMIL as interpreted and transcribed): Because, they are saying that they have destroyed the Tigers, but there could be another war, like before, there was already a peace and a war happened; now they are saying they have destroyed the Tigers, but not completely. There could be another war and big problems.
INTERPRETER: Earlier, it was peace, and then again the war started; the same way it can happen again. And they are saying that terrorists have been – like there’s no more terrorists, but again there may be terrorists come up.
REVIEWER: Okay. […]”
It appears from this extract that the fear of a war recommencing was conveyed, albeit without the same clarity with which the applicant expressed himself or with the use of the term “Tigers”. It is important to note that the applicant was not making a submission as to his personal fear at this point, but was explaining that his family, who remain in Sri Lanka, may have cause to be alarmed.
At [50] of the submissions it is suggested that if the applicant had been aware of the reasons for the previous rejections of his claims he may have been able to comment upon that. The impugned passage reads as follows:
“REVIEWER: Okay. Well, I don’t have more questions to ask you, but is there anything else you want to tell me about?
INTERPRETER (TAMIL as interpreted and transcribed): I don’t have any more questions to ask you, is there anything else you want to tell?
CLAIMANT (TAMIL as interpreted and transcribed): Because of the particular reasons, I don’t know for what reason I was rejected, I was mentally affected in that time, but now I feel am in good mental health as the doctors said to me. Now I have said everything without mistakes.
INTERPRETER: I was – earlier – earlier I was a bit disturbed in mind when I had my previous – previous interviews. But now I am in a good mental status.
INTERPRETER (TAMIL as interpreted and transcribed): When you faced the previous interviews, isn’t it?
CLAIMANT (TAMIL as interpreted and transcribed): Yes.
INTERPRETER (TAMIL as interpreted and transcribed): When I had my previous interviews, but now I am in a good mental status.
CLAIMANT (TAMIL as interpreted and transcribed): Because of this reason, I would have made some mistakes, like stating wrong dates.
INTERPRETER: Before I said wrong date – I (indistinct) the dates wrong because of my mental status, but now I am clear in my mind what it was.”
I do not see how the claim corresponds to what the applicant says. The applicant does not appear to be seeking to find out the reasons for his previous rejections such that he can respond to those reasons. He appears to be making a case for the fact that his answers in the current hearing may differ from the previous hearing, but are more accurate now because he is presently in a good state of mind.
At [51] the applicant claims that at [T51:36] “the second respondent purports to express concern that only the applicant’s mother would identify him but the authorities would not. This is interpreted as “the photo they won’t recognise you”. It is argued that the lack of clarity denied the applicant the opportunity to give evidence as to which other persons had viewed the footage:
“REVIEWER: Look, there’s still an issue for me. One is your mother might recognise you, but whether the authorities wouldn’t know – they would see some faces, but they wouldn’t necessarily know to put your face – from that footage, they wouldn’t necessarily know it’s you.
INTERPRETER (TAMIL as interpreted and transcribed): In the photo they wouldn’t recognise it’s you.
CLAIMANT (TAMIL as interpreted and transcribed): Definitely they will recognise, they pick up little things, they must have somehow taken this news and when we are deported they will recognise by watching it and arresting us.
INTERPRETER: They will take it as small parts and they’ll see it in a clear image that this person – is he the same person in the video and the real.”
There is a clear discrepancy here between what the applicant tries to say and what is translated. The Reviewer didn’t press the issue any further despite the apparent incomprehensibility of the interpreter’s response. But the real concern for the Reviewer is the meaning of the image, only showing him as an asylum seeker [T52:8- T53:1]:
“REVIEWER: The other thing is that only depicts you as a person seeking asylum in Australia.
INTERPRETER: Pardon?
REVIEWER: That image, even if I accept you were recognised, it only depicts you, only shows you, as a person seeking asylum in Australia.
INTERPRETER (TAMIL as interpreted and transcribed): Even if she accepts the photos, it will only show that you were a person seeking asylum in Australia.
REVIEWER: So it’s not as though you were a person in the street demonstrating against the Sri Lankan government.
INTERPRETER (TAMIL as interpreted and transcribed): It’s not that a photo like in a demonstration.
CLAIMANT (TAMIL as interpreted and transcribed): That’s right, but they will question “You could have gone through the airport, because you have problem in the country only you have gone illegally?”
INTERPRETER: Yes, but they will definitely ask a question as, “Why don’t you go through the airport? Why did you go illegally? Is it because there was trouble for you?”
REVIEWER: Yes, they will investigate.
INTERPRETER (TAMIL as interpreted and transcribed): Then they will investigate?
CLAIMANT (TAMIL as interpreted and transcribed): Definitely and there will be problems.
REVIEWER: But from what you’ve told me you don’t have a profile, a history.
INTERPRETER (TAMIL as interpreted and transcribed): You do not have a history about it.
CLAIMANT (TAMIL as interpreted and transcribed): Because of this photo they will definitely arrest me.
INTERPRETER: Definitely having this photo as evidence they will remind.”
This extract illustrates that the Reviewer raised her concern that the photograph only went to the applicant’s status as a person seeking asylum in Australia. At [71] CB 250 the Reviewer states:
“The reviewer also accepts that the claimant would in all likelihood be identified by the Sri Lankan authorities as a person who had sought asylum in Australia. The reviewer does not accept that his application to the High Court of Australia seeking a review of his first IMR recommendation or his possible depiction on television at a detention centre, is evidence of anything more than that the claimant is an asylum seeker.”
This illustrates that the applicant’s current submission – that the applicant was denied the opportunity to make submissions as to who else might have seen the footage – is of little relevance. The reviewer accepted that the authorities might have viewed the image and that investigations would take place, but did not accept that this would amount to or result in serious harm because she was not satisfied that he had a profile. The Reviewer, raised this concern and the applicant again addressed the profile question with reference to the issues he had previously raised, however, this did not satisfy the Reviewer.
Finally the applicant reiterates that “taken individually and cumulatively, the quality of the interpretation was severely below the required standard” such that the applicant was “not able to properly advance his case during the hearing”. There are instances of inaccurate translation throughout the interview. At times this caused difficulty in the giving of evidence: the applicant states that he published the non-political magazine and this is taken to be ‘involved with’ and only having written some articles for it; there were discrepancies between his evidence on the photo and that translated and understood (neither very clear). On the whole, however, I believe that the applicant was able to sufficiently make his case, and responded effectively to the questions posed. The above analysis shows that some of the alleged difficulties are unfounded or were, in fact, overcome during the interview. It also demonstrates that where there were instances of poor interpretation, any departure from the standard did not “relate to a matter of significance for the applicant's claim or the tribunal's decision” : Perera at [45].
Considering the submissions both individually and cumulatively I would conclude that they do not establish, after applying the Middleton J. test, that a jurisdictional error has occurred.
The Wednesbury unreasonableness issue
The applicant commences his submissions in relation to this issue in the following way:
“[54]M61 is arguably the most important refugee case decided in the common law world this century thus far.
[55]The case is well known, not only in the legal community, but in the broader community as it has attracted significant media attention, not only in Australia, but also abroad. As for the media attention in Australia, the Court may take judicial notice of this factual assertion. As for the media attention abroad, relevantly in Sri Lanka, the applicant relies on the evidence of this apparent from the recommendation itself. It appears to be common ground that the applicant was in fact shown on television in Sri Lanka in any case.”
The assertion in 54 is debatable. The proper response to the assertion in 55 is that whatever attention was given to the case was given to it utilising pseudonyms and there is no connection whatsoever between the applicant (who is also identified by a pseudonym) and the Plaintiff M69. The applicant was as anonymous as a party to M69 as he is as a party to this proceeding. Whilst it is accepted by the respondent that the applicant may have been shown on television in Sri Lanka he was not shown on television as a participant in any court proceedings, he was shown as an asylum seeker being taken from Christmas Island to Villawood. There is no suggestion that he is singled out in any way from the group or that he has been identified in Sri Lanka as the Plaintiff M69.
The applicant continues in his submissions at [57]:
“[57]The applicant caused a major development on the common law of Australia to take place. In doing so, he has brought much attention to himself, including adverse attention in the form of media coverage in Sri Lanka. The likelihood of coming to grief in the hands of the authorities if returned to Sri Lanka is such that there is no doubt that the applicant had a well-founded fear that he would be persecuted. Therefore the recommendation was so unreasonable that it was legally erroneous; Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] 1 KB 223.”
With respect to the applicant this is a serious misinterpretation of the situation. He has not brought any attention to himself because he has never been identified. What the applicant did say in a statement CB 221 is:
“Before I received my previous negative Reviewer decision I told my legal advisors that I became aware that videos of my transfer from Christmas Island to Villawood are available in Sri Lanka. ….
I would therefore like to provide further information about my fears in relation to this. After I and other Tamil asylum seekers were transferred to Villawood my family contacted me and told me that they recognised me in videos that were broadcast by Shakthi TV, a Tamil television station in Sri Lanka. My family said that the people in those videos are identified as Sri Lankan Tamils who had sought asylum and they could easily recognise me. They were very concerned about my image being broadcast and told me that if I came back I would be in even more danger because of these videos. My family also told me that they saw an article and photographs about our transfer from Christmas Island to Villawood in a Tamil newspaper.”
This is referred to in the applicant’s advisor’s submissions to the Reviewer as follows:
“The applicant believes that his identity as an asylum seeker in Australia is known to the Sri Lankan or may easily be ascertained by them following publication of his image both in Australian and Sri Lankan media. We refer to the applicant’s enclosed statement in relation to this. …” [CB 214]
In the applicant’s submissions his identification as one of a group of Sri Lankan asylum seekers has been conflated with his position as Plaintiff M69. There is no evidence whatsoever of this and it was wrong of the advisors to attempt to make such a connection. The Reviewer dealt with the alleged fear as it was actually articulated, namely a fear for having been recognised as an asylum seeker. The Reviewer came to a conclusion about the possibility of persecution arising therefrom based upon available evidence and it cannot be said that in coming to that conclusion was unreasonable in the Wednesbury sense. As the respondent argues in his helpful written submissions:
“At most this is a matter on which reasonable minds could differ, and so cannot be said to be illogical or unreasonable: MIAC v SZMDS [2010] 240 CLR 611 at [78] per Heydon J, [130 – 131] per Crennan and Bell JJ; SZOOR v MIAC [2012] FCAFC 58 at [15] per Rares J, [85] per McKerracher J.”
This ground cannot succeed.
I have considered all grounds of the application. I have concluded that none of them establish jurisdictional error on the part of the Reviewer. I dismiss the application, the applicant shall pay the Respondent’s costs assessed in the sum of $6,471.00.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 17 July 2012
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