SZRVA v Minister for Immigration
[2014] FCCA 680
•11 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRVA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 680 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 65, 91X, 425, 424A Evidence Act 1995, ss.59, 136 |
| Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minster for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minster for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | SZRVA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2092 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 30 July 2013 |
| Date of Last Submission: | 13 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Urdu interpreter. |
| Counsel for the First Respondent: | Mr H. Bevan |
| Solicitors for the First Respondent: | Minster Ellison Lawyers |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 15 September 2012 and the Amended Application filed on 13 September 2013 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRVA.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2092 of 2012
| SZRVA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), being RRT Case Number 1200384, a decision of Tribunal Member Andrew Mullin dated 4 September 2012, affirming the decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the first respondent, the Minister for Immigration & Citizenship (“the Minister”) were ordered to file a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This volume of material provided is identified as the Court Book (“CB”), marked Exhibit “A”. The applicant filed two affidavits; the first being an affidavit of himself, affirmed 26 July 2013 and filed 29 July 2013 (the “Applicant’s First Affidavit”). The Applicant’s First Affidavit annexes one page of the Tribunal’s Decision Record. The second affidavit was an affidavit of himself, affirmed 13 September 2013 and filed the same day (the “Applicant’s Second Affidavit”) which annexes a transcript of the Tribunal hearing at Annexure “A”.
At the First Court Date directions’ hearing the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 5 February 2013. The applicant did not file any amended application but did file the Applicant’s First Affidavit on 29 July 2013, one day before the hearing. At the hearing, the decision was reserved and the applicant was granted leave to file and serve an affidavit attaching a transcript of the Tribunal hearing held on 20 April 2012 and any supporting affidavit material on or before 30 August 2013. By consent, the time for filing was extended to 13 September 2013 at which time he filed an amended application (the “Amended Application”).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference for that material (CB). I have not made further attribution as this would make the summary unwieldy.
The applicant is a national of Pakistan (CB 258 at [81]). He arrived in Australia on 23 April 2011 as the holder of a Student (Class TU, Subclass 572) visa (CB 34; 96). The applicant submitted an application for a Protection visa on 22 July 2011 (CB 1-48), but it was found to be invalid because of a lack of personal identifiers (CB 50-53).
Subject to areas of clarification that were notified to the department by his solicitor (see CB 100), the applicant’s claims to fear persecution were set out in a written statement attached to his application (CB 88-89). This was supplemented by a submission prepared by his adviser (CB 111-123)
The applicant claimed to have a well-founded fear of persecution from Taliban in his area of Swabi in Khyber Pakhtunkwa province. He claimed that he feared persecution for reasons of:
a)His political opinion (whether actual or imputed), because he was involved in establishing a peace committee which would be perceived as being opposed to the Taliban or religious-based militants;
b)His religion, because he would be characterised by the Taliban or other religious-based militants as a “kaffir” or unbeliever;
c)His membership of a particular social group, being his family.
Following an interview with the applicant, the Minister’s delegate refused to grant him a Protection visa on 21 December 2011 (CB 138-145). The applicant lodged an application on 11 January 2012, the applicant applied to the Tribunal for review of the delegate’s decision (CB 147-151). By letters dated 6 March 2012 and 21 March 2012 (CB 64-171; 177-184), the applicant was invited to attend a hearing. The applicant accepted the invitation (CB 172-174; 185-186).
Written submissions were provided to the Tribunal (CB 188-207). In the submissions, it was claimed (CB 190) that the applicant had a well-founded fear of persecution he was a member of the political party, Jamiat Ulema-e Islami-Fezlur (JUI-F). This was put forward on the basis of the Convention grounds of political opinion, religion and membership of a particular social group. An additional social group put forward was “members of peace committees” (CB 190).
The applicant attended a hearing before the Tribunal on 20 April 2012 (CB 212). On 7 May 2012, the applicant provided further submissions and evidence in support of his application (CB 221-231). On 4 September 2012, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa (CB 236-266).
Tribunal’s Findings
The Tribunal first expressed doubts as to the credibility of the applicant’s account of his, and his family’s experience in Pakistan (CB 259 at [86]).
The Tribunal was not satisfied that the applicant or the other members of his family established a local peace committee, that they worked against the Taliban or other militant groups or that he and his uncle held discussions with the Pakistan army in which they opposed the entry of the army into the village (CB 260 at [92]). This finding was based on:
a)The applicant’s “notably brief and vague” account at the hearing of the peace committee and its workings (CB 259 at [88]);
b)The applicant’s “brief and vague” account of the discussions allegedly with an army major, together with the implausibility of the effect of vocal, but unarmed, opposition (CB 259 at [89]);
c)Country information showing that the army remains committed to maintaining security in Swat and other parts of the Khyber Pakhtunkhwa (KPK) province (CB 260 at [90]);
d)The lack of independent corroboration for the applicant’s claim about the formation of the Mohmand peace committee in Hajiabad, the applicant’s village (CB 260 at [91]).
The Tribunal was also not satisfied that the applicant has lost contact with his family members or that he is unaware of their location (CB 262 at [97]). The Tribunal was not satisfied that the applicant’s family is not still in Hajiabad (CB 262 at [97]). This finding was based on:
a)A non-acceptance of the applicant’s claims that his father and uncle were arrested by the Taliban for anti-Taliban activity (in light of the Tribunal’s earlier lack of satisfaction about the peace committee and opposition to the Taliban), together with the Tribunal’s concerns about the plausibility of their alleged escape from the Taliban (and the father’s claimed escape from police one month later)(CB 262 at [94]);
b)The Tribunal’s non-satisfaction of the plausibility of the applicant’s claim that “all… his family members would simply go missing, at various times and in various circumstances, without his having made more than the most perfunctory of efforts to re-establish contact with them…” (CB 261 at [96]).
The Tribunal did not accept that the applicant was involved in working against the Taliban during his visits to Mohmand Agency, FATA, or that he was involved in any activity which came to the adverse attention of the Taliban there (CB 262 at [100]). The Tribunal noted that the applicant had not claimed that the alleged danger to him there “was sufficient to prevent him returning a number of times, to curtail his alleged propagandising there or to cause him to take any precautious against possible revenge by the Taliban after he went home to Hajiabad” (CB 262 at [99]).
As to his claimed membership of JUI-F, the Tribunal did not accept that the applicant was ever a member of that party, or otherwise involved in its activities, or that he had ever been imputed with the membership and activism of the party (CB 263 at [107]). The Tribunal noted that this claim had been made late and considered the applicant’s explanations for this (CB 262 at [202]; 263 at [103]-[104]). The Tribunal was not satisfied that the explanations put forward “explain why, if the applicant had indeed been a member of JUI-F, this important and relevant fact would have emerged only shortly before the hearing” (CB 263 at [105]). The Tribunal was not satisfied that, if he had been a member who had attended meetings in various locations regularly such that the Taliban targeted him for that reason, then “this important fact would not have been clearly and consistently identified by him from the time he lodged his protection visa application” (CB 263 at [105]).
While the Tribunal was prepared to accept that the applicant and his brother were in attendance at a meeting at which a bomb exploded, it was not satisfied that the applicant played any part in arranging the meeting (CB 263 at [106]).
The Tribunal placed no weight on a letter submitted after the hearing in circumstances where the letter was dated before the hearing, given it was only at the hearing that the applicants’ claim to membership was challenged and country information indicated the ready availability of forged or fraudulent documents in Pakistan (CB 263 at [108]).
In light of its earlier findings, the Tribunal was not satisfied that there is a real chance that the Applicant would be seen by the Taliban as a non-believer and harmed (CB 264 at [110]). The Tribunal also did not accept that the applicant would suffer harm or been forced to modify his behaviour or disguise his beliefs in the past and in light of the gains made by the army in re-establishing controls (CB 264 at [111]). The Tribunal did not accept that there was a real chance that the applicant would suffer harm because of his religion if he were to return to his village (CB 264 at [112]).
In light of its findings, the Tribunal was not satisfied that the applicant or his father have ever come to the adverse attention of the army or any authorities in Pakistan and did not accept that there was a real chance that the applicant would suffer harm form this source if he were to return to his village (CB 264 at [113]-[114]).
The Tribunal also rejected the claims based on the Convention ground of membership of a particular social group (CB 265 at [115]-[118]). In light of all the information before it, the Tribunal was not satisfied that there is a real chance that the applicant would suffer harm in his village and was not satisfied that he has a well-founded fear of persecution for a Convention reason should he return to his home, now or in the reasonably foreseeable future (CB 266 at [120]-[121])
The Tribunal noted that it was not satisfied that the applicant faced harm in his village as claimed. The Tribunal accepted that there continued to be incidents of terrorist violence in the province, but relatively few reports in Swabi and none in the applicant’s village. Having considered that information, the Tribunal was not satisfied that it provides “any basis” for a finding of satisfaction of the complementary protection in s.36(2)(aa)(CB 266 at [122]).
Application for Review
As noted above, the applicant was granted leave to file and serve an Amended Application giving complete and detailed particulars of each ground of review to be relied upon and any additional evidence upon which he seeks to rely by 13 September 2013, which was after the hearing had taken place. The Minister was granted leave to file and serve and evidence and/or written submissions in reply by 27 September 2013.
The applicant’s Original Application was filed 25 September 2012. On 13 September 2013 the applicant filed the Amended Application. The main differences in the application are as follows:
a)Ground 1 of the Original Application corresponds to Ground 1 Amended Application, although the “particulars” are different;
b)Ground 2 of the Original Application appears to have been abandoned;
c)Ground 3 of the Original Application corresponds to Ground 2 of the Amended Application;
d)Ground 4 of the Original Application appears to have been abandoned.
The Original Application and the Amended Application sought the following orders:
1. The applicant’s claim to set aside the decision of the refugee Review Tribunal given on 04 September 2012 and handed down on 05 September 2012.
2. An order that no action is taken to remove the applicant from Australia while the decision is pending.
3. An order to set aside the decision of the Tribunal and order the Tribunal to review the matter according to law.
4. A writ of Certiorari quashing the decision of the RRT.
5. And any other order the court may deem appropriate.
The grounds of the Original Application, are as follows:
1. The Tribunal made a procedural mistake that the Tribunal collected information from the applicant and rejected that information without proper assessment and proof. The Tribunal simply rejected the applicant’s claim by saying that it is not satisfied but did not give any reasons. The Tribunal’s rejection is not accepted by law.
Particulars: I am not satisfied that in this these circumstances the army would have been deterred in any way from doing as it liked in entering the village during the course of its operations in the area and it also did not accept that simple verbal opposition of the nature from an unarmed committee in the village would have been seen by the army as matter of any significance or that it would have produced a threat to arrest committee members if they did not cease their opposition. The Tribunal raised concern about the applicant’s credibility.
The Tribunal was not satisfied that the applicant or other members of his family did in fact hold meetings in their village of Hajiabad in early 2011 or that they established a local peace committee through such a process. That they ever worked against the Taliban or other militant groups in this way. That he or his uncle held discussions with the Pakistan army as representatives of such a committee of in any other capacity.
That his father and uncle were arrested by the Taliban in late April 2011 for anti-Taliban activity.
Nor, with respect, do I accept the advisor’s submission that his would be a normal thing for a person to do in the Applicant’s circumstances.
I am unable to be satisfied that he has lost contact with his family members or that is unaware of their location.
Having considered this claim I am not satisfied that the Applicant was, in fact involved in working against the Taliban during his visits to Mohmand Agency or that he was involved in any activity which came to the adverse attention of the Taliban there. I am not satisfied that he would face real chance of harm for such a reason if he were to return to his village.
2. The Tribunal made a procedural mistake in assessing the applicants’ claim for protection. The Tribunal rejected the applicant’s claim most of the time by saying that the Tribunal is not satisfied but it is very hard for the applicant to satisfy the Tribunal. The Tribunal will never be satisfied and it is not necessary for the Tribunal to be satisfied. The Act does not say that the Tribunal need to be satisfied to accept or to reject a review application. The Tribunal in its whole decision rejected the applicant’s genuine claim by saying that ‘I am not satisfied’ which not a fair procedure and the Tribunal made a mistake to review the applicant’s claim for protection. The Tribunal did not send the letter of the applicant dated 5 March 2012 to check the authenticity of the letter.
3. The Tribunal made a procedural mistake that the Tribunal did not understand its obligation under the Act how to review an application for protection. The Tribunal mentioned in its decision paragraph 117, ‘I accept that the Applicant is self-evidently, a member of the particular social group consisting of his family. As noted, however, I am not satisfied that his father or other members of his family have been targeted for harm in the past, either by military groups such as the Taliban or by the Pakistan authorities. This being the case, I am not satisfied there is real chance that he would suffer harm for this reason.’
4. The Tribunal made a procedural mistake that the applicant was not give adverse information for to reply. The Tribunal made few findings and reasons which are necessary for the applicant to explain. But the applicant did not get that information to give explanation. The applicant thinks if he would have been given opportunity to address the adverse information then there was a chance that his review application would have been successful. The applicant was not given the opportunity by the Tribunal which is a procedural unfairness mad(sic) by the Tribunal.
The grounds of the Amended Application are more in the form of submissions and will be treated as such and are as follows:
1. The Tribunal made a procedural mistake that the Tribunal collected from the applicant and rejected that information without proper assessment and proof. The Tribunal simply rejected the applicant’s claim by saying that it is not satisfied but did not give any reason. The Tribunal’s rejection is not accepted by law.
a) In respect of each of those points of claim made by the applicant the Tribunal was not satisfied that the applicant’s claims were established. In respect of each of those claims the Tribunal has set out the evidence that it relied upon in reaching its conclusions that it was not satisfied on each particular claim. Each of those conclusions was reasonably open to the Tribunal on the evidence before the Tribunal and no grounds of review arise.
b) The conclusion of the Tribunal being “reasonably open” does not mean that conclusions were not open; it simply means that there were no legal errors in particular Tribunal coming to its stated conclusion.
2. The Tribunal made a procedural mistake that the Tribunal did not understand its obligation under the Act how to review an application for protection. The Tribunal mentioned in its decision paragraph 117, “I accept that the applicant itself evidently a member of the particular social group consisting of his family. As noted, however, I am not satisfied that his father or other members of his family have been targeted for harm in the past, either by militants group such as the Taliban or by the Pakistan authorities. This being the case, I am not satisfied there is a real chance that he would suffer harm for this reason.”
3. The Interpreter was wrong when doing interpretations on certain points and the Tribunal did not get the true picture of the situation and the credibility of the applicant. A copy of the Transcript of interview CD and an affidavit by a NAATI (National Accreditation Authority for Translators and Interpreters Ltd) recognised interpreter is annexed with an affidavit by the applicant.
a) Please see point 56 of RRT’s decision, page 22 of the transcript and at time 26 of NATTI Affidavit. The member said “if you in fact had been a member if JUIF, you would have been fairly obviously an important element for your claim to fear harm in Pakistan”. The interpreter translated as: “If you had been a member of JUIF it is very strange that you face harm in that country”. This is obviously a wrong interpretation.
b) Please see point 41 of RRT’s Decision, page 8 of the transcript and at time 50:20 of NATTI Affidavit. The member said “On one hand you say Mawlana Fazlullah accused [applicant’s uncle] and your father for being against the Taliban”. The interpreter translated as: “on one hand you say that Mawlana Fazlullah arrested them”. This is obviously a wrong interpretation.
c) Please see point 44 of RRT’s Decision, page 13 of the transcript and at time 58:28 of NATTI Affidavit. The member said: “Do you have any contracts with your mother.” The interpreter translated as: “Do you have any relation with your mother”. This is obviously a wrong interpretation.
d) Please see point 44 of RRT’s Decision, page 13 of transcript and at time 59:00 of NATTI Affidavit. The member said: “Have you contacted with any other organisation about this”. The interpreter translated as: “Have you related with any other organisation about this”. This is obviously a wrong interpretation.
e) Please see point 119 of RRT’s Decision where it says: “I am not satisfied that the applicant or the members of his family were ever involved in establishing a peace committee on his village of Hajiabad. The applicant has now provided an establishment certificate an evidence issued by a local council of the area.
f) Please see point 119 again of the RRT’s Decision where it says: “I am not satisfied that his family members have been harmed because of anti-Taliban political opinion real or imputed to him”. The Tribunal also says: “Nor I am satisfied there is a real chance he would be harmed for this reason of he were to return to his village, either by Taliban or by the Pakistan authorities”. This is not right. The applicant has now provided a copy of a First Information Report by Police in Pakistan in which it is stated that a brother of the applicant has recently been hijacked by Taliban. If the applicant goes back he would [not] be safe from the hand of Taliban or by Pakistani Army.
Applicant’s Submissions
At the commencement of the hearing, the applicant confirmed that he had not filed an Amended Application, nor had he filed any written submissions. When invited to make oral submissions, he indicated that he would like to have more time to prepare the matter for hearing, in effect, an application for an adjournment. The applicant was asked what he intended to prepare during the requested adjournment. The applicant indicated that it was his intention to obtain a transcript of the Tribunal hearing and that he had in his possession a CD of the hearing, but up to this stage, had been unable to have a transcript prepared. When asked why in the period of eight months since the directions hearing before his Honour Raphael FM (as he was then), on 29 November 2012 and the scheduled hearing on 30 July 2013, steps had not been taken to undertake this task in preparation for the final hearing. The applicant indicated that he had misplaced the CD when moving premises and had only recovered the CD several days prior to the hearing. The applicant informed the Court that he had misplaced the CD for 6-7 months, but had not taken any steps to seek a replacement CD, or any steps to recover his own copy.
The applicant informed the Court that there were translation mistakes made during the hearing and it was his intention to bring these to the Court’s attention by presenting a transcript of the hearing, and identifying passages that contained these errors. I indicated to the applicant that I had read the Tribunal’s decision and it seemed quite clear that there was a lot of issues raised and each of those fairly addressed and are clearly expressed in the Decision Record. The applicant insisted that some of those passages where not correct. When invited to identify the errors and address them, the applicant referred the Court to Applicant’s First Affidavit and particularly, [5]-[7]:
5. I do not agree with the decision of the RRT particularly number 119 of the decision of dated 5 September 2012. I am also not satisfied with interpretation at the interview with the RRT of date 20 April 2012.
6. I intended to get a transcript prepared of the Interview CD to bring into the notice of the Honourable Court about the wrong interpretations at the interview but very unfortunately I lost my interview CDs during the process of my shifting of residence. I did not know how to get another copy of the CDs from RRT. I have recently found the CDs but it will take me a while to get the transcript prepared and to make a submission to the Honourable Court.
7. Besides number 6 above I also need to get new evidence from Pakistan as I do not agree with the viewpoints of the member of the RRT in number 119 regarding establishment of peace committee in our Hajiabad village in Pakistan and also about involvement of my family members with the activists activities in Pakistan.
When asked if there was any further issues that the applicant wished to raised in respect to this review he indicated that there was nothing further.
Respondent’s Submissions
The Minister filed and served Supplementary Submissions on 27 September 2013. The Minister claims that the applicant has not made it clear whether he wishes to press the grounds in the Original Application or abandon them for the grounds in the Amended Application. As such, the Minister has addressed each ground in both applications.
Ground One – Original Application
The Minister submits that this Ground asserts a “procedural mistake” on the part of the Tribunal, saying that its approach is “without proper assessment and proof” and does “not give any reason”. The extracts of the Tribunal’s findings and reasons set out in the particulars are incomplete and do not represent the whole of the Tribunal’s reasons. In substance, this ground seeks to engage the Court in impermissible merits-review and does not identify any relevant meaningful legal error.
Ground One – Amended Application
The Minister submits that the “particulars” suggest that there is now no longer any allegation of legal error: “Each of those conclusions as reasonable open to the Tribunal on the evidence before the Tribunal and no grounds of review arise” and “…it simply means that there were no legal errors in particular…”. To the extent that this is an abandonment of Ground 1, then the Minister accepts this. To the extent that Ground 1 is pressed then the Minister submits there is no error for the reasons set out above.
Ground Two – Original Application
This Ground again asserts a “procedural mistake”. There are several aspects in this Ground. First to the extent that the applicant takes issue with the Tribunal’s statement of its non-satisfaction, this ground is misconceived. Section 65 of the Migration Act requires the Minister to grant a visa if he is satisfied that the criteria have been met. As Gummow J said in Minster for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 647 at [119], the “Minister’s satisfaction was an anterior matter , being a component of the condition precedent to the discharge of the obligation to grant or refuse the visa.” See also Minster for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12at 988 [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 624 at [37], 625 at [40] per Gummow ACJ and Kiefel J and at 638 at [102] per Crennan and Bell JJ. Thus, contrary to the applicant’s assertion, it was necessary for the Tribunal to reach a state of satisfaction as to the relevant criteria.
Secondly, to the extent that the phrase “the Tribunal will never be satisfied” in this Ground may read as an assertion of bias (whether actual or apprehended), there is nothing in the material to suggest that the Tribunal approached its task with anything other than an impartial mind: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Thirdly, the suggestion that the Tribunal erred by not checking the authenticity of the letter cannot be sustained. The Tribunal is under no obligation to investigate or make enquires: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]. There is nothing in the circumstances of this case to suggest that there was an obvious enquiry about a critical fact which is easily ascertained such as to enliven a requirement on the tribunal to make an enquiry: SZIAI (supra). It should be noted that the Tribunal did not disregard the letter – it simply placed no evidentiary weight on it (CB 264 at [108]). The weight to be attached to evidence is a matter for the Tribunal.
Ground Two – Amended Application
Ground 2 of the Original Application seems to be abandoned and Ground 3 of the Original Application now becomes Ground 2 of the Amended Application. The Minister relies on the original submission which are:
a)Again, there is an assertion of a “procedural mistake” in the Tribunal’s approach to the review.
b)There is nothing in the material to suggest that the Tribunal did not conduct the review in accordance with its obligations under Div 4 of Pt 7 of the Migration Act.
c)The Minister submits that Ground 3 cannot be made out.
Ground Three – Amended Application
The authorities establish the following propositions to erroneous translation;
a)An invitation pursuant to s.425 of the Migration Act to attend a hearing and give evidence and make submissions must be a real and meaningful invitation: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.
b)Where an applicant is not proficient in English, an interpreter is required so as to enable the applicant to exercise his her right to give evidence: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 per Kenny J;
c)Failure to do so may constitute jurisdictional error: Perera;
d)In order to establish jurisdictional error, it must be shown that:
i)The standard or level of translation was inadequate that the applicant was effectively prevented from giving evidence at the Tribunal: Perera (supra); Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6[27]; or
ii)The errors made by the interpreter at the Tribunal hearing were materials to the conclusions of the Tribunal adverse to the appellant: Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 per Spender, Lee and Tamberlin JJ.
e)The requirement is not that there be a perfect translation, but that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated: WACO v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 511 at 527 [66] per Lee, Hill and Carr JJ;
f)It is for the applicant to demonstrate any such inadequacy by way of evidence: Soltanyzand (at [18]);
g)So that the Court is in a position to assess the adequacy or otherwise of the transcript, the evidence (transcript) should be prepared by a person which is suitably and appropriately qualified in both English and the non-English language, as occurred in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 per Mansfield, Emmett and Selway JJ.
Ground Four – Original Application
The Minister submits that this Ground asserts error by a “procedural mistake” by a failure to give the applicant “adverse information” for his reply. There is nothing in the material to suggest that the obligation under s.424A of the Migration Act was enlivened, and as such this ground cannot be made out.
Transcript Evidence
The Minister argues that the evidence on which the applicant relies is deficient in many respects. In this case, after the hearing the applicant filed the Applicant’s Second Affidavit which purports to annexe a copy of the Transcript at Annexure “A”. The Minister submits that there is no evidence as to the identity of the person who prepared the Transcript. All that is said is that it was prepared by a “professional”. In any event, it is clear that the Transcript simply records what was spoken in English.
Annexure “B” of the Applicant’s Second Affidavit purports to be a statutory declaration of an interpreter and translator. The Minister submits the following points:
a)This statutory declaration is hearsay (see s.59 of the Evidence Act 1995). It is not an affidavit sworn and filed in this proceeding. It is a document in which representations are made as to certain matters but which are simply annexed to the Applicant’s Second Affidavit. Its status is entirely uncertain. The Minister maintains a formal objection to the document. If the document is to be received (acknowledging that the applicant is not represented), then it should be received as evidence of the assertion only and not as truth of the facts asserted, consistently with s.136 of the Evidence Act 1995;
b)The declarant asserts that he is a NAATI accredited translator but offers no details of this;
c)The declarant asserts that he has listened only to certain parts of the CDs. It is clear that he has not listened to the whole of the listening tapes. There is no indication as to the identity of the person or persons who identified which parts of the Transcript to listen to or otherwise the circumstances in which this came to pass;
d)Even assuming for the present purposes, which is not conceded, that there are errors in translation, they are minor. As the principle identified above makes clear, the requirement is not that there be a perfect translation, but that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated: WACO (supra);
e)The applicant does not make any attempt to explain how the errors purportedly made by the interpreter at the Tribunal hearing were material to the conclusions of the tribunal adverse to the applicant: Soltanyzand (supra). This is fatal to the applicant’s allegation. In the particulars of the Amended Application. The applicant relied on 4 instances, which are addressed below:
i)The first point (See CB 251 at [56]) is very minor. Even if there were an error in the first sentences, there was no error in the second, third, fourth or fifth sentences. In other words, it was plain that the Tribunal was putting to the applicant that he had failed to mention an important aspect of his claims until his written submissions to the Tribunal and that his cast doubt on the truth of this claim. There is no jurisdictional error here.
ii)The second point (see CB 2478 at [41]) does not reveal error. Even if there were an error at one point in time, it was corrected at the hearing. This is made clear by the Tribunal’s record of the hearing which states (at CB 247-248: “Later in the hearing, at the advisor’s suggestion, the interpreter provided a translation of the relevant passage in the Pashto original of the statement. This indicated that [SZRVA] and a companion arrested the Applicant’s father and uncle [uncle’s name] when the Applicant was leaving Pakistan on 27 April 2011)”. In any event, any error, which is not conceded, had no impact on the Tribunal’s findings, which were based on an adverse credibility finding (CB 262 at [94]). There is no jurisdictional error.
iii)The third and fourth dot points (CB 248 at [44]) are very minor. Again, even if there were an error in the identified sentences, which is not conceded, the point being made by the Tribunal was made very clear by the balance of the paragraph. There is no jurisdictional error.
Finally, the applicant seeks to now put on documentary evidence going to the merits of his claims. The Minister objects to the tender of this material on the grounds of relevance. It can only go to merits review. It does not reveal any jurisdictional error.
Consideration
As indicated above at the commencement of the hearing, the applicant sought an adjournment in order to obtain a transcript of the Tribunal hearing in which he claims there is evidence of misinterpretation during the Tribunal hearing. Although the applicant was invited to indicate the nature and extent of these alleged errors, he declined to do so. The applicant also sought time in which to obtain evidence from Pakistan which contradicted views expressed by the Tribunal Member in the Decision Record at [119] regarding the establishment of the Peace Committee in his village in Pakistan. I note that the applicant appeared at the First Court Date directions hearing on 29 November 2012 and was assisted by an Urdu interpreter. During that directions hearing, his Honour Raphael FM (as he was then) granted the applicant leave to file and serve any amended application, including full particulars of the grounds on which the applicant intended to rely by 5 February 2013. Any additional affidavit material that the applicant intended to rely upon was to be filed on the same day. The applicant was also required to file and serve a written outline of submissions and a list of authorities fourteen (14) days before the final hearing. The explanation provided by the applicant for his failure to meet this timetable was that due to relocation, he had mislaid the CD containing the recording of the Tribunal hearing and had only found that material approximately two weeks before the hearing. The applicant indicated that he had not taken any other steps to seek a new copy from the Tribunal, with the explanation given that he was unaware how to undertake that task.
I am acutely aware that the applicant is a self-represented litigant and although he appears to be receiving some assistance from an unidentified third party, in the preparation of material that has been presented to the Court, I believe that he should be given the opportunity to at least prepare a transcript of the hearing and identify the errors that he claims have been made in interpretation. However, because of the extended period of preparation time provided to the applicant at the First Court Date directions hearing and the final hearing in which he appears to have undertaken little preparation, I believe the most appropriate manner is to proceed with the hearing and grant the applicant leave to file and serve the Transcript of the Tribunal hearing by 30 August 2013, together with and Amended Application and written submissions identifying and explaining the alleged errors. The Minister was granted a further period in which to reply to any issue raised by the applicant.
At the end of the hearing on 30 July 2013, the following orders were made:
1. The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.
2. By 30 August 2013, the applicant file and serve an amended application giving complete and detailed particulars of each ground of review relied upon.
3. By 30 August 2013, the applicant file and serve any additional evidence upon which he seeks to rely. Any evidence filed must be presented by way of affidavit, including evidence of a Tribunal hearing which must be presented as a transcript verified by affidavit of a Court recognised, NAATI (National Accreditation Authority for Translators and Interpreters Ltd) accredited interpreter.
4. By 30 August 2013, the applicant file and serve any written submissions he seeks to rely upon.
5. By 13 September 2013, the first respondent file any evidence and/or written submissions in reply.
6. Judgment in these proceedings be otherwise reserved.
On 4 September 2013, revised orders were made by consent, amending the dates for the filing of documents:
1. By 13 September 2013, the applicant file and serve an amended application giving complete and detailed particulars of each ground of review relied upon.
2. By 13 September 2013, the applicant file and serve any additional evidence upon which he seeks to rely. Any evidence filed must be presented by way of affidavit, including evidence of a Tribunal hearing which must be presented as a transcript verified by affidavit of a Court recognised, NAATI (National Accreditation Authority for Translators and Interpreters Ltd) accredited interpreter.
3. By 13 September 2013, the applicant file and serve any written submissions he seeks to rely upon.
4. By 27 September 2013, the first respondent file any evidence and/or written submissions in reply.
On 13 September 2013 the Amended Application was filed (reproduced above at [26]). Also on that date the applicant filed the Applicant’s Second Affidavit which attaches a Transcript of the Tribunal hearing (Annexure “A”), a statutory declaration of the NAATI interpreter (Annexure “B”) and a copy of a first information report by police in Pakistan in which it states that the applicant’s brother has recently been hijacked by the Taliban (Annexure “C”).
I turn firstly to the Transcript of the Tribunal hearing and the statutory declaration of the interpreter competent in translation in the Pashto-English medium. In the translator’s statutory declaration, certain passages are identified as containing errors or variations in interpretation between the two languages. I acknowledge and agree with the Supplementary Submissions prepared by Mr Bevan, for the Minister, which addresses Ground 3 – Erroneous Translation, firstly to principles and secondly to evidence. I am satisfied that these submissions accurately address Ground 3 of the Amended Application. However, I am acutely aware that the applicant is a self-represented litigant with a very limited understanding of the Court procedures and the manner in which he is required to advance claims of jurisdictional error in the Tribunal decision. Consequently, I grant the applicant some leniency in his pursuit of this review.
Although the affidavit material indicated that is has been prepared and filed by the applicant himself, I note that his signatures and the annexures are of MI Chaudhry, solicitor and migration agent. The formatting and presentation of this material indicates that a third party is involved in its presentation.
Nevertheless, accepting that the review application has been primarily prepared by a self-represented litigant, putting to one side technical issues such as the standard or level of interpretation, the accuracy or otherwise of the Transcript and the sufficiency of it to permit the ideas or concepts being translated to be communicated, the main issue for the Court is the identification of the errors made by the interpreter, being material to the conclusions of the Tribunal and being adverse to the applicant. In Soltanyzand v Minister for Immigration and Multicultural Affairs (supra) per Spender, Lee and Tamberlin JJ, their Honours stated:
18. If the appellant sought to show that the interpretation provided was incompetent in significant respects it was necessary for the appellant to place evidence before his Honour capable of persuading his Honour that material errors occurred in the interpreting of the appellant's statements and, therefore, that miscarriage in the decision-making process had occurred.
Most recently in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 per Allsop CJ, Flick and Robertson JJ, the Full Court considered the issue of the standard of interpretation, mistranslation and non-translation in respect of procedural fairness before a Reviewer. His Honour Allsop CJ, reviewed a number of decisions of the Federal Court dealing with the question of adequacy or not of interpretation at [14]-[25] his Honour stated:
14. In Perera, Kenny J, in a detailed and considered judgment, examined the place of adequate interpreting in the undertaking of a hearing under s 425(1) of the Act. The expression of reasoning in Perera is to be understood against the background of the form of the Act. Section 476(2)(a) of the Act specifically excluded natural justice as a ground of review. Thus, the principles of procedural fairness did not shape her Honour’s approach expressly. Rather, Kenny J focused upon the failure to provide an adequate or proper interpreting service as an error of law. After examining the transcript of Mr Perera’s “unresponsive” and “virtually incoherent” evidence in translation, Kenny J examined the place of interpreting under the Act. The applicant was “entitled to appear... to give evidence”: s 426(1)(a), and the Tribunal (if it could not make a decision favourable to the applicant without a hearing) “must give the applicant an opportunity to appear before it to give evidence”: s 425(1)(a). Kenny J said that if the Tribunal were to proceed with a hearing without an “effective opportunity” to give evidence, the decision would be reviewable under the then s 476(1)(b) or (c) or (e) (lack of jurisdiction, or lack of authorisation, or an error of law): 92 FCR at 16-17 [20]-[21]. Her Honour then examined at 18-20 [24]-[31] the role of the interpreter and the necessary standard of interpretation. In that context, the focus was on the minimum requirement of the content of the right, being the right to an interpreter and to a hearing. In Tran, the Supreme Court sought to define a standard of interpretation by reference to criteria that included continuity, precision, impartiality, competency and contemporaneousness. Kenny J was concerned with the need for precision or accuracy (as in a sense, we are here) and competency of the interpreter and the interpretation. At 92 FCR 22-25 [38]-[50] Kenny considered whether the standard of interpretation fell short of what was required. Her Honour put the question in [38] as “whether the material...is sufficient to make out his case that the interpretation...was so incompetent that he was prevented from giving his evidence”. Expressing the matter thus reflected the statutory context of the decision. Her Honour concluded that through repeated inadequacies the evidence was not given with any coherent accuracy. Kenny J recognised that the departure from the standard “must relate to a matter of significance for the...claim or the...decision”: 92 FCR at 23-24 [45].
15. In Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; 59 ALD 773 Lee J said that the essential requirement was that the interpretation be of a sufficient standard “to ensure that justice is done” 59 ALD at 782 [26]. I respectfully agree with that short statement of principle.
16. In Habtegebriel v Minister for Immigration and Multicultural Affairs [1999] FCA 1470, Tamberlin J accepted that there were misinterpretations but refused to set aside the decision because it had been based on objective country information and other evidence independent of the failure of communication. It is unnecessary to consider the correctness of this decision and whether or not questions of a denial of procedural fairness and a proper engagement of relief were elided.
17. In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant’s statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.
18. In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:
It is plain that there was a variety of factors operating upon the Tribunal’s determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.
Material irregularity in the process and the correctness of the outcome were thus separate.
19. In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; 115 FCR 1 at 6 [28], the Full Court (Tamberlin, Mansfield and Emmett JJ) referring to s 427(7) of the Act stated:
the proficiency in English [required]...is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance or his or her case and to respond to issues raised. It does not require any greater expertise in English.
20. That simple and, with respect, correct way of expressing the matter might, nevertheless, be seen to mask the factual difficulty in evaluating the adequacy of interpretation and the relationship between the materiality and number of errors and overall coherence of expression and understanding.
21. In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, Mansfield and Selway JJ, with whom Emmett J agreed, discussed the cases dealing with s 425. After referring to Singh, Ismail, Perera and Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; 183 ALR 188, their Honours said:
[17] ... In its written submissions the respondent [the Minister], after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
[18] The respondent’s acknowledgment in those terms seems to reflect the views of the Court in Singh (at 6[27]) and in Perera (at 22[38]-[41]) as to the first proposition and in Soltanyzand...at [18] as to the second. The appellant did not contend that a more stringent obligation lay upon the Tribunal. It is therefore not necessary to determine whether the existing authorities go so far as the respondent acknowledged.22. These passages are not without difficulty. Singh at 6 [27]-[28] referred to the reality of the opportunity to give evidence and present arguments. Perera at 22-23 [38]-[41] referred to the interpretation being sufficiently incompetent that the applicant was prevented from giving his evidence. In Perera at 23-24 [45]-[46] it was clear, however, that Kenny J was referring to matters of significance involving important issues, not to a complete incapacity to interpret. Thus, if what appears in (a) in [17] of Appellant P119/2002 were to be understood as the need to show the prevention from giving any evidence, it is not supported by Singh or Perera and would, in my view, be wrong. Further Soltanyzand at [18] does not squarely support para (b). The expression of the matter (albeit by reference to a submission of the Minister) in [17] of Appellant P119/2002 overly defines what is a more easily expressed and broader requirement: a fair hearing. That is best explicated by the kinds of considerations referred to above, by Robertson J in his reasons, and by the kinds of consideration referred to by Kenny J in Perera, recognising that the purpose of interpretation is to enable the matters referred to in Singh to occur: the applicant to give evidence and present arguments in order to communicate the substance of his or her case and to respond to issues raised. This implicitly incorporates understanding what the decision-maker is saying.
23. In WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131, Ryan J at [29] (with whom Tamberlin J and Middleton J agreed) referred to Perera, Soltanyzand, Appellant P119 of 2002 and WACO Minister for Immigration and Multicultural and Indigenous Affairs(2003) FCAFC 230; (2003) 131 FCR 511 at [63]–[68] in considering a ground of appeal that the mistranslation vitiated a hearing of the Tribunal, by reference to the Act not the principles of procedural fairness. His Honour referred to the need to “establish that he was effectively prevented from giving his evidence ... [or]... that errors had occurred in translation which were so material as to cause the decision-making process to miscarry”. Once again those passages should be read with care, and should not be understood as establishing a requirement to show that the person was prevented from giving any evidence at all, as opposed to the simple expression of a qualitative test in Singh.
24. It is unnecessary either to consider the operation of statutory provisions such as s 425 or to refer to any further decisions. None of these earlier cases was directed to the basic requirements of procedural fairness. Although following authorities of the Federal Court, it was an error in the approach of the primary judge to apply these cases as determinative of the governing principle of the operation of procedural fairness. The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process. As I have said earlier, I agree with the expression of the matter by Robertson J and that, fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done. The place for the appearance of justice being done lies in the rejection of the proposition that the matter is to be analysed solely by reference to causation directed by the reasons of the decision-maker. Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.
25. In those circumstances, while it can be put that administrative justice must be seen to be done, the preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.
His Honour Allsop CJ in SZMQ (supra) set out the following principles in respect the approach to a claim of misinterpretation in context of procedural fairness as follows:
5. Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.
6. The requirements of procedural fairness are not generally apt for precise delineation. Some aspects can be reduced to a verbal expression of law. The test for apprehended bias is perhaps an example of that. The difficulty in precise formulation of many aspects of the requirements is that the informing norm and root of the principle is fairness: Kioa v West [1985] HCA 81; 159 CLR 550 at 583-585. Even in relation to the proper test for apprehended bias, however, the use of the fair-minded observer in the construct imports the norm of fairness: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].
7. Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW [2005] HCA 50; 224 CLR 44 at 56-57 [26]; and SZRUI at [5].
8. The requirement of power to be exercised fairly will generally carry with it the requirement to exercise the power in a way that is apparently fair. This derives from the recognition of the importance of the process of the exercise of state power and not just the correctness of the outcome. The process of the exercise of state power is integral to the legitimacy of the outcome of the exercise of that power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at 97 [19];Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 295 ALR 638 at 693 [209]; NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; 115 FCR 561 at 583[84]; and SZRUI at [2].
9. The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
10. How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health [2002] FCA 40; 115 FCR 561 at 583[84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
…
24. It is unnecessary either to consider the operation of statutory provisions such as s 425 or to refer to any further decisions. None of these earlier cases was directed to the basic requirements of procedural fairness. Although following authorities of the Federal Court, it was an error in the approach of the primary judge to apply these cases as determinative of the governing principle of the operation of procedural fairness. The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process. As I have said earlier, I agree with the expression of the matter by Robertson J and that, fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done. The place for the appearance of justice being done lies in the rejection of the proposition that the matter is to be analysed solely by reference to causation directed by the reasons of the decision-maker. Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.
In the same decision, his Honour Robertson J set out the principles to be applied in determining whether or not an adequate translation means that a hearing was not fair at [65]-[75]. His Honour stated:
The principles to be applied
65. The issue in the present appeal being procedural fairness under the general law, the analysis must be focused on the particular circumstances of the case: whether or not there has been a denial of procedural fairness is fact-sensitive.
66. The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant’s case and what the applicant was putting about the claim or for the decision-maker’s decision.
67. Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.
68. The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
69. If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
70. It will often be important to distinguish between a case where the mistranslation or non-translation is frequent or continuous, on the one hand, and a case, such as the present, where the errors are intermittent.
71. In the former case it will be easier to conclude that there has been a denial of procedural fairness because, considered overall, the process has miscarried. The cause may be incompetence of the translator in English or in the particular non-English language but the cause is of very little relevance in my opinion.
72. In the latter case, where the errors are intermittent, care must be taken to evaluate the overall fairness of the hearing as well as the individual instances in order to assess the quality of the process and whether it amounts to the applicant having had a reasonable opportunity to be heard and to present his or her claim.
73. It is also important, in my view, to keep separate questions of mistranslation and non-translation, on the one hand, and mere errors of fact on the other hand. Similarly, it may be that a translation is confused and confusing because what an applicant has said is confused and confusing.
74. I have had the advantage of reading in draft the reasons of the Chief Justice. I agree with his Honour’s general comments and his analysis of the authorities. It is significant that the errors of translation in the present case are to be tested against procedural fairness under the general law rather than by reference to the blunter question of whether the Tribunal has given the applicant an opportunity to appear before it to give evidence: s 425(1)(a) of the Migration Act 1958 (Cth) as considered by Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6.
75. I should add however that what is in my view the correct approach under the general law was, with respect, stated too narrowly by Logan J in SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274; (2012) 134 ALD 267 at [33] with reference to the decision of the Full Court in WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 at [29], which concerned the terms of the Act, that either or each of the following needed to be established:
Turning to Ground 3(a) of the Amended Application the first error is identified as occurring at [56] of the Decision Record where it states:
56. I suggested that the Applicant’s membership of the party would have been an important element of his claim to fear harm in Pakistan. Despite this he had made no mention of it in his original statement. Neither he nor his advisor had mentioned it in the Departmental interview. It had not been mentioned in the submission sent to the Department following the interview and it first appeared in the submission to the Tribunal received two weeks previously. I put to him this could cast doubt on the truth of his claim that he was ever a member of the party or that he had had any connection with it. He said the bombing of 30 March (2011) showed he was there. They had been arranging a meeting for the party leader. I noted that he had not mentioned in this statement that he was present at the bombing and had not mentioned the name of the party until the submission of 5 April 2012. He repeated that he had been present and was arranging the meeting. He had already mentioned this to the Department.
(CB 251)
In the applicant’s Amended Application (at [26(3)(a)] above), he refers to the Transcript at p.22 where the Tribunal Member asks the question “if you in fact had been a member of JUIF, you would have been fairly obviously an important element for your claim to fear in Pakistan.” The interpreter translated as: “If you had been a member of JUIF it is very strange that you face harm in that country”…
The applicant’s claim is that this is obviously a wrong interpretation.
In the interpreter’s statutory declaration, identified at time 26:00 of the Transcript, the following appears:
Member: If you in fact had been a member of JUIF, you would have been fairly obviously an important for your claim to fear harm in Pakistan.
Interpreter: If you had been a member JUIF it is very strange that you face harm in that country.
(emphasis added)
This difference in interpretation is confirmed in the statutory declaration of Sharif Amin, the Pashto NAATI accredited interpreter and Translator.
While acknowledging that there was an error in interpretation, it is not apparent how that error has impacted on the Tribunal’s decision. The thrust of the Tribunal’s reasoning, focuses on the issue that the applicant’s membership of JUIF was significant but this was not raised until his prehearing submission, dated 5 April 2012. While the applicant’s original application, seeking protection before the Tribunal was filed on 22 July 2011 and did not raised this issue nor was it raised in pre-hearing submissions, supplied to the delegate or with the delegate during the hearing on 14 December 2011.
In the circumstances, I am not satisfied that the mistranslation identified above had any impact on the Tribunal decision, nor was the applicant denied procedural fairness. This ground of review cannot be sustained and should be dismissed.
In Ground 3 of the Amended Application the second identified error in the Decision Record occurred at [41] which states:
41. Regarding the claim that the Maulana Fazlullah had arrested his uncle and his father I put to the Applicant that he did not appear to have mentioned this previously. He said he had mentioned it in his original statement. I noted that in this he claimed only that the Taliban associated with Maulana Fazlullah had accused his father and uncle of being against the Taliban. He suggested this was the same thing. I noted that the two things were very different. He said it might have been a grammatical error and repeated that Fazlullah had arrested them. (Later in the hearing, at the advisor’s suggestion, the interpreter provided a translation of the relevant passage in the Pashto original of the statement. This indicated that Maulana Fazlullah and a companion arrested the Applicant’s father and uncle [uncle’s name] when the Applicant was leaving Pakistan on 27 April 2011).
(CB 247-248)
In the Amended Application, set out at [26(3)(b)] above, the applicant refers to the Transcript p.8 at 50:20 where the Tribunal Member states: “On one hand you say that Maulana Fazlullah accused [applicant’s uncle] and your father of being against Taliban.” The interpreter translated this as: “on one and you say that Maulana Fazlullah arrested them”.
The applicant submits that is obviously a wrong interpretation.
This error is confirmed in the statutory declaration of Shariff Amin the Pashto, NAATI accredited interpreter and translator.
In the Transcript identified at 50:20, the following appears:
Member: Well on one hand you say at (50.26) accused (50.27) and your father of being against the Taliban. On the other hand now you say oh well they arrested them, or he arrested my father and uncle. It’s a very different thing.
Applicant: Maybe this is a grammatical mistake but they arrested them.
Member: So its just a mistake in the original statement?
Applicant: Yes
(Transcript , p.10)
Again there was an error in interpretation, but no argument is advanced as to how this impacted the Tribunal decision. Importantly, any confusion that arose as a result of mistranslation was addressed by the Tribunal in [41] of the Decision Record (CB 249). Both the Tribunal Member and the applicant’s adviser were aware of the inconsistency in the evidence given during the hearing, prompting the adviser to request that the interpreter to provide clarification of what appears within the original statement that was recorded in Pashto. This is noted and recorded in the Decision Record. Consequently, any misunderstanding that may have arisen from the initial translation during the hearing was identified and corrected.
In Ground 3 of the Amended Application, the third and fourth errors are identified as occurring at [44] of the Decision Record where it states:
44. Asked if he had any contact with his mother the Applicant said he did not. Asked where in Afghanistan she was he said she could be in Kunar. Asked what steps he had taken to find the missing members of his family he said he contacted two of his friends but they had no knowledge of them. He agreed that this was all he had done. Asked if he had contacted any organization in Pakistan about them he said he had not – he was very tense while he was in Australia and was involved in his own problems. I asked if he meant that having lost track of his entire family he would only ask two friends and, when they could not help, would leave the matter there. He said he did not know anything – what could he do?
(CB 248)
In the applicant’s Amended Application set out at [26(3)(c)] above, he refers to the Transcript at p.13 (58:28) where the Tribunal Member states: “Do you have any contact with your mother.” The interpreter translated as: “Do you have any relation with your mother? This is obviously a wrong interpretation.
This error is confirmed in the statutory declaration of Sharif Amin the Pashto, NAATI accredited interpreter and translator.
In the Transcript, identified at (58:28) the following appears:
Member: Let me ask you, do you have any contact with you mother?
Interpreter: No
Member: Do you know where she is?
Interpreter: In Afghanistan.
(Transcript, p.13)
There has been an error in translation but the nature of that error does not change to any significant extend the nature of the information being conveyed. Reading the paragraph, identified by the applicant, together with the preceding paragraph, the Tribunal Member is seeking, from the applicant, details of his various family members and their current location. The questions specifically related to his mother are in a similar nature to that addressing the location of his father and his brothers, all of whom the applicant has claimed have moved, over recent times, to avoid contact by the Taliban. The apparent purpose of the questions relating to the mother’s location and the applicant’s contact with her is consistent with the questioning as to the location of other family members and no significant finding arises on the apparent error relating to the applicant’s contact with his mother.
The second error in relation to [44] of the Decision Record concerns the passage in dispute, identified by the applicant as 59:00 of the Transcript, identified in the Amended Application at [26(3)(d)] above, which is as follows:
The member said: “Have you contacted with any other organisation about this.” The interpreter translated as: “Have you related with any other organisation about this?”
The applicant’s claim is that this is obviously a wrong interpretation.
In the Transcript at the time 59:00 the following appears:
Member: You didn’t think of contacting any other organisation about this?
(Transcript, p.13)
This identified error can be nothing more than a minor issue as the impact of the alleged error has not been identified as causing any substantial misunderstanding by the Tribunal Member or the applicant in the hearing process. The focus of the Tribunal’s questioning is to establish what steps, if any, the applicant has taken to locate and re-establish contact with his family and recognising that he has been unable to achieve this objective has enquired as to whether he has sought any third party help, identified as organisations in Pakistan. It is not apparent that this interpretation error has made any significant impact on the Tribunal’s reasoning if read in the context of the surrounding paragraphs and the objective of the questioning.
The last two errors identified by the applicant in Ground 3 of his Amended Application do not involve errors in interpretation, despite the basis of the pleading in Ground 3. The last identified errors relate to [119] of the Decision Record, which states:
119. As noted, I am not satisfied that the Applicant or other members of his family were ever involved in establishing a peace committee in his village of Hajiabad. Nor am I satisfied that he or other members of his family were ever members or activist supporters of the JUI-F party. I am not satisfied that his family members have been harmed because of an anti-Taliban political opinion, real or imputed. I am not satisfied the Applicant has ever drawn attention to himself as holding a political opinion opposed to the Taliban, or that such a political opinion would be imputed to him. Nor am I satisfied there is a real chance he would be harmed for this reasons if he were to return to his village, either by the Taliban or by the Pakistan authorities. I am similarly unsatisfied that he faces a real chance of harm because of his real or imputed religion or his membership of the particular social groups which have been posited as applying to his circumstances.
(CB 265)
The first identified error concerns the Tribunal’s statement where it says:
119. …I am not satisfied that the applicant or other members of his family were ever involved in establishing a peace committee in his village of Hajiabad…
(CB 265)
The applicant states that he has now provided an establishment certificate as evidence issued by a local council of the area.
In the Applicant’s Second Affidavit at [8], it states:
I enclose a copy of a First Information Report by Police in Pakistan in which it is stated that my brother has recently been hijacked by Taliban. If I go back I would not be safe from the hands of the Taliban or by Pakistani army. The copy of the FIR is enclosed as “annexure C”.
Clearly, this documentation was not before the Tribunal at the time of the hearing or prior to the decision being delivered. In Ly & Anor v Minister for Immigration & Anor [2007] FMCA 1633 per Turner FM (as he was then) at [4]-[5] it stated:
4. In cannot be said that the applicant in the present case was denied procedural fairness by the Tribunal, or anyone else, because a procedure that was required by law to be followed was not followed, or because it decided the case without reference to material that was not before it. To accept the new evidence would take the Court outside its statutory jurisdiction to conduct a judicial review and into the realm of conducting an appeal and admitting new material: the Court is not empowered to do that.
5. The Court finds that the affidavits and material sought to be tendered are not relevant to the question of whether the Tribunal made a jurisdictional error on the material before it, insofar as they relate to material that was not before the Tribunal at the time it made its decision. The question of whether a mistake of fact can amount to a jurisdictional error therefore does not arise for determination.
The second issue raised in respect of [119] of the Tribunal’s Decision Record concerns the statement made by the Tribunal:
119. …I am not satisfied that his family members have been harmed because of anti-Taliban political opinion real or imputed to him….
The Tribunal also states:
119. …Nor am I satisfied there is a real chance he would be harmed for this reason if he were to return to his village, either by Taliban or by Pakistani authorities….
(CB 265)
The applicant claims that these statements are not right and provides a copy of the First Information Report by the police in Pakistan in which it is stated that a brother of the applicant had recently been hijacked by the Taliban. The applicant claims if he was to return he would not be safe at the hands of the Taliban or the Pakistani army. This claim is to be treated in the same manner as the first claim in respect of [119] of the Decision Record, as the document that is relied upon was not available to the Tribunal and is a post-hearing submission. The applicant made reference to documents during the hearing before this Court which he indicated that he would file with his post-hearing submissions. The nature of these documents was not clear, as there appeared to be an inference that there was reflecting material that was already before the Tribunal.
Once observed, the document headed Standard Translation and Interpretation Service, Swabi is dated 17 July 2013, it was immediately apparent that document came into existence well after the Tribunal hearing, held on 20 April 2012 with the decision delivered on 4 September 2012. The translation contained in annexure “C” of the Applicant’s Second Affidavit was prepared only briefly before the date of the hearing before this Court, being 30 July 2013. I believe that the principle addressed in Ly & Anor (supra) applied also to this claim and should be dismissed.
I now turn to the remaining Grounds and agree with the submissions made by Mr Bevan that the applicant has not made clear, whether the Grounds contained in the Original Application are still pressed or have been abandoned. No effort has been made, by the applicant, to convey to the Court whether the Original Application remains on foot or has been abandoned. The situation is made more difficult because the applicant is a self-represented litigant and is not familiar with the normal conventions adopted to either indicate an application continues to be pressed or has been abandoned in favour of the amendment. Nor would the applicant be aware of when a Ground is repeated in the Amended Application, but has been modified, that the amendments are noted by underlining or striking out.
In the circumstances, I believe the approach adopted by Mr Bevan while preparing detailed written submissions addressing all of the grounds assuming that they are all being pressed. The Court has the benefit of those detailed submissions which are reproduced above and comprehensibly addresses the issues raised in each ground of review.
Taking Ground 1, the claim as set out in both applications remains the same, however, the particulars in the Original and Amended Application are significantly different. The initial particulars, although not identified, are extracted passages from the Decision Record, as follows:
a)Paragraph 1 of the Particulars is extracted from [89] of the Decision Record;
b)Paragraph 2 of the Particulars is extracted from [92] of the Decision Record;
c)Paragraph 3 is extracted from [93] of the Decision Record;
d)Paragraph 4 of the Particulars is extracted from [96] of the Decision Record;
e)Paragraph 5 of the Particulars is extracted from [97] of the Decision Record;
f)Paragraph 6 of the Particulars is extracted from [100] and [112] of the Decision Record;
The applicant has selectively quoted these passages in support of the claim that the Tribunal has simply rejected claims made by the applicant and gives no reasons. This is not correct. If the respective passages above are read on context of where they appear in the Decision Record, the Tribunal examines the claims made by the applicant in the context, and then makes a ruling which is not without explanation as claimed. Significantly, the majority of these identified objections are based on lack of supporting evidence or credibility of the individual claim in the context of the applicant’s overall story.
In the Amended Application, Ground 1 is substantially the same as the Original Application but the Particulars make the concession that there is no error in the way that the Tribunal has dealt with the evidence before it and acknowledges each of the conclusions, presumably those identified in the Original Application, were reasonably open to the Tribunal and that no error arises. It is difficult to accept that the drafting of these grounds has not been influenced by an unidentified third party who has some knowledge of the issues involved in a judicial review of the decision made by a Tribunal Member. However, the whole scope of Ground 1, taken in the context of the Original Application and the Amended Application is the appearance of a misconception of what was being attempted in the review process. Putting this to one side, on a fair reading of the Tribunal’s Decision Record, I am not satisfied that a claim that the material provided to the Tribunal by the applicant was rejected without proper assessment. In the circumstances I do not believe that this matter can be taken further and that Ground 1, as pleaded in both applications should be dismissed.
In respect to Ground 2, in the Original Application, I agree with the written submissions prepared by Mr Bevan that are reproduced above at [33]-[35]. The Ground raises a number of issues which takes issue with the expressions use by the Tribunal Member in the Decision Record, however, the Tribunal Member is using the terminology contained in the relevant sections of the Migration Act that specify specific criteria or levels of acceptance that is required to meet the requirements of that particular provision of the Migration Act. The one identified goes to the level of satisfaction required to comply with the provision. Significantly, this whole Ground has been abandoned in the Amended Application. In the absence of explanation it is unknown whether there has been a realisation on the part of the unidentified third party helper that the Ground, as originally drafted, would fail. There does not appear to be any attempt to rectify or redraft this Ground, but is rather simply abandoned.
Ground 3 of the Original Application, appears in the Amended Application as Ground 2 and is expressed in identical terms. The claim is that there was a “procedural mistake” in the Tribunal’s approach to the review, but then proceeds to quote, in its entirety [117] of the Decision Record. There is no attempt to suggest or identify the alleged procedural mistake. On a fair reading of the identified paragraph, in the context of the surrounding paragraphs in the Decision Record there is no suggestion that the Tribunal did not conduct the review in accordance with the obligations under Division 4 of Part 7 of the Migration Act. While rejecting the applicant’s contention to be a member of a particular social group in respect to being a founder and member of the peace committee or the political party JUI-F the Tribunal readily accepts that the applicant is a member of a particular social group consisting of his own family. However, the Tribunal does not accept that that social group is the target of either the Taliban or the Pakistani army. I am satisfied that this Ground cannot be sustained and should be dismissed.
Ground 4 of the Original Application repeats the claim that the Tribunal made a procedural mistake in not giving the applicant details of adverse information in its possession and provides the applicant with an opportunity to reply. This claim does not accord with the content of the Decision Record in that at the end of the hearing, there was discussion between the Tribunal Member, the applicant and his adviser in respect to a number of issues which the Tribunal Member sought to clarify. At [72] of the Decision Record is a list of submissions made by the applicant’s adviser, addressing issues raised at the hearing, these submissions were reproduced in the Decision Record and is contrary to the claims made in Ground 4 of the Original Application. I am satisfied that this Ground cannot be sustained and should be dismissed.
As the applicant in these proceedings is a self-represented litigant, and has not in either of his pleadings raised the issue of complementary protection most probably because he is unaware of those provisions of the Migration Act. I have noted elsewhere in this judgment that the applicant appears to be receiving assistance from an unidentified third party, but that person has not addressed this issue either. In the circumstances I believe that this additional issue should be addressed as to whether Australia owes the applicant complementary protection. A convenient summary of these provisions of the Migration Act is contained in the Bill’s Second Reading Speech on 24 February 2011. This speech indicates that these provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights Treaties and other Refugee Conventions:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
· the arbitrarily deprivation of life;
·having the death penalty carried out;
·being subjected to torture;
·being subjected to cruel or inhuman treatment or punishment; or
·being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)
As discussed above, the claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal. These findings are summarised in [119] of the Decision Record. Based on those findings, none of the issues raised in the complementary protection criteria are relevant. The Tribunal addresses the criteria at [122] of the Decision Record in the following terms:
122. I have also considered whether the Applicant might meet the alternative criterion for complementary protection. As noted, I am not satisfied that he faces harm in his village of Hajiabad for the reasons he claims. I accept that the information before the Tribunal also indicates that there continue(sic) to be incidents of terrorist violence in KPK province, although there are relatively few reports of such incidents in Swabi and none concerning Hajiabad village itself. Having considered the information I am not satisfied that it provides any basis for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Pakistan, there would be a real rick that he would suffer significant harm in terms of s.36(2)(aa) of the Act.
(CB 266)
Conclusion
In the circumstances, I am satisfied that the Amended Application should be dismissed with costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 11 April 2014
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