SZTCO v Minister for Immigration
[2015] FCCA 1611
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTCO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1611 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa –consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46, 91R, 422, 477 |
| BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 SZQQU v Minister for Immigration and Border Protection & Anor [2014] FCCA 425 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 WZAQW v Minister for Immigration and Border Protection & Anor [2014] FCCA 692 WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82 |
| Applicant: | SZTCO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1697 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 26 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Tamil interpreter. |
| Solicitor for the First Respondent: | Ms B. Griffin of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 9 July 2013 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1697 of 2013
| SZTCO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this Court on 24 July 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1220392, a decision of Tribunal Member A. Moore dated 27 June 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed on 25 September 2013, pursuant to orders of Judge Barnes made on 11 September 2013, a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.
The applicant was granted leave on 11 September 2013 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely, however, elected not to do so.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a Sri Lankan citizen of Tamil ethnicity who arrived on Christmas Island as an unauthorised maritime arrival on 1 June 2012. On 8 September 2012 the Minister exercised his power under s.46A(2) of the Migration Act to allow the applicant to lodge an application for a Protection visa (CB 1). The applicant lodged his Protection visa application on the same day (CB 2-65).
On 2 November 2012, a delegate of the Minister refused the applicant’s Protection visa application (CB 79-105).
The applicant applied to the Tribunal for review of the delegate’s decision on 7 December 2012 (CB 106-112). This was acknowledged by the Tribunal by way of return letter dated 11 December 2012 (CB 113-115).
Applicant’s Claims before the Tribunal
Before the Tribunal, the applicant claimed to have a well-founded fear of persecution as a Tamil fisherman at the hands of Sinhalese naval officers who operated a fishing permit system in the local area. As a result of this persecution, he was forced to move to Mullaittivu to fish, which resulted in him being suspected of having links with the Liberation Tigers of Tamil Eelam (the “LTTE”). He claimed to fear persecution for reasons of his Tamil ethnicity and his membership of particular social groups: “Sri Lankan Tamils”, “Tamils from the North or East of Sri Lanka” and “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia”. The applicant also claims to have a real and imputed political opinion, namely being a supporter of the LTTE, arising from his race and former residence in a predominantly Tamil region.
Tribunal’s Decision
On 27 June 2013, the Tribunal affirmed the delegate’s decision. The Tribunal assessed the applicant’s claims against the criterion in s.36(2)(a) and the alternate criterion in s.36(2)(aa) of the Migration Act.
The Tribunal found the applicant did not have a well-founded fear of persecution now, or in the reasonably foreseeable future, for any Convention reason because of past events or personal characteristics or as a failed asylum seeker if he were to return to Sri Lanka. The Tribunal also found that there was not a real risk that the applicant would suffer significant harm in any manner relating to:
a)Interference in fishing due a permit system operated by the Sri Lankan Navy. The Tribunal found that the applicant’s decision to fish at Mullaittivu was not motivated by systematic and discriminatory persecution directed at him, nor did it prevent him from subsisting or supporting his family, rather he simply wanted to earn more money (CB 200 at [107]);
b)Claims based on ethnicity. The Tribunal found with reference to independent country information that simply being a Tamil or coming from a Tamil region by itself was not sufficient to give rise to a need for international protection (CB 202-204 at [115]-[122]);
c)The applicant’s claim in respect of imputed political opinion. The Tribunal found that simply residing in Mullaittivu to fish, in accordance with the known practice of fishermen from Udappu, would not give rise to any suspicion of a connection with the LTTE. The Tribunal concluded that the applicant had no adverse profile, including no perceived LTTE profile, and was not of any interest to the authorities of Sri Lanka (CB 203-204 at [116]-[122]);
d)The applicant’s illegal departure from Sri Lanka. The Tribunal accepted that the applicant would be remanded for a short period of time and that prison conditions in Sri Lanka are poor and overcrowded. However, the Tribunal found that the Immigrants and Emigrants Act 1949 which applies to persons, regardless of ethnicity, who have departed Sri Lanka illegally, is a law of general application and does not give rise to persecution under the Refugees Convention. The Tribunal also found that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm (CB 205-209 at [128]-[148]); and
e)The applicant’s status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka. The Tribunal found that the fine likely to be imposed on the applicant would not give rise to a real risk of significant harm and was satisfied the applicant has capacity to pay the fine likely to be imposed (CB 209 at [149]-[150]).
Current Proceedings
By application filed in this Court on 24 July 2013, the applicant seeks judicial review of the Tribunal’s decision.
The grounds of the application are:
1. A failure to deal with my claim I had made.
2. Failing to comply with procedural rules.
The application also seeks an extension of time, however, the application was filed within the statutory time limit of 35 days from the date of the Tribunal’s decision (see s.477(1) of the Migration Act).
Applicant’s Submissions
As indicated above, the applicant did not file any amended application, affidavit evidence or written submissions before the hearing on 26 September 2014. However, leave was granted to the applicant to file and serve written submissions addressing the judgment of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 on or before 7 November 2014. The applicant did file post-hearing submissions on 7 November 2014 and they will be addressed below.
At the hearing, the applicant did not address his application specifically.
The applicant first complained about the standard of interpretation at his first Tribunal hearing. He stated that the interpreter at the hearing was an Indian Tamil and did not pronounce the name of his suburb/village properly.
The applicant also stated he was not made properly aware of the second Tribunal hearing, though he did not seek to elaborate on this. In respect of the second Tribunal hearing, he also complained that the hearing was conducted by video-link where he was in a room by himself and the other people present at the hearing were in Melbourne. Further, he stated that the hearing only went for 30 minutes and, when completed, he was asked to leave the room.
The applicant also indicated he had had the Minister’s written submissions translated to him before the hearing, but did not respond to anything contained therein.
Minister’s Submissions
In response to the unparticularised grounds in the application, the Minister submits that:
a)The Tribunal’s statement of reasons clearly disclose that the Tribunal considered and made findings in relation to each of the applicant’s claims; and
b)The Tribunal properly observed its procedural fairness obligations contained in Div.4 of Part 7 of the Migration Act. The Tribunal invited the applicant to appear at two hearings to give oral evidence and present arguments, at which the Tribunal put to the applicant the substance of its concerns. The Tribunal took into account the applicant’s written and oral evidence and post-hearing submissions. There is no evidence to support the applicant’s bare assertion that the Tribunal failed to comply with any “procedural rules”.
The Minister submits that the applicant has put nothing before the Court that could establish that the Tribunal fell into jurisdictional error. As such, he cannot make out his claim for relief. The Minister submits the application should be dismissed with costs.
In response to the applicant’s oral submissions, Ms Griffin, appearing for the Minister, stated that there were no complaints made by the applicant in respect of the standard of interpretation at the hearing, nor were any complaints made by his then representative. She referred the Court to the Decision Record at [25]-[65] which addressed the first Tribunal hearing and noted no complaint had been made, and questions had been asked with answers given.
In respect of the second Tribunal hearing, Ms Griffin referred the Court to CB 165-166 which forms part of the record of the hearing on the day. She noted that an interpreter and the applicant’s representative were present in Melbourne, along with the Tribunal Member, and the applicant appeared by video-link from Sydney. Further, she referred the Court to the written start and finish times for the hearing which were 12:57pm and 2:07pm, noting that the hearing in fact took over an hour.
Consideration
I first turn to the two grounds of review contained in the applicant’s application. Neither ground has been particularised, nor were they addressed at the hearing by the applicant.
I agree that the Minister’s written submissions, contained at [19(a)] above, correctly address Ground 1 of the application and this ground needs no further consideration. On a fair reading of the Decision Record, all of the claims made by the applicant were addressed by the Tribunal. This ground, accordingly, must fail and should be dismissed.
In respect of Ground 2, I am also of the view that the Minister’s written submissions reproduced at [19(b)] above correctly address this ground. Having regard to the Court Book, the Tribunal complied with its obligations under Div.4 of Part 7 of the Migration Act.
In respect of the second Tribunal hearing, a letter was sent to the applicant’s representative on 22 May 2013 inviting him to a hearing on 18 June 2013 (CB 159-161). The applicant’s representative completed the “Response to Hearing Invitation” form and faxed it back to the Tribunal on 3 June 2013 (CB 162-163). The applicant then appeared by video-link at the hearing (CB 165). Accordingly, I am satisfied the Tribunal complied with its obligations under ss.425 and 425A of the Migration Act. Accordingly, Ground 2 of the application and the applicant’s complaints in respect of appearing at the second Tribunal hearing cannot be sustained and should be dismissed.
I now turn to the applicant’s complaint in respect of the standard of interpretation. His Honour Judge Lucev in WZAQW v Minister for Immigration & Anor [2014] FCCA 692 stated at [56]-[57]:
56. In Perera v Minister for Immigration & Multicultural Affairs, the Federal Court made the following findings in relation to a decision of the Refugee Review Tribunal:
a) a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground of review within s.476 of the Migration Act;
b) a failure by the Tribunal to provide an interpreter to a non-English speaking applicant means that the Tribunal does not have the jurisdiction to conduct the hearing;
c) the role of an interpreter is to “place the non-English speaker as nearly as possible in the same position as an English speaker…to remove any barriers which prevent or impede understanding or communication”;
d) “[i]nterpreting reliably involves technical skill and expert judgment”;
e) the standard of interpreting required is subject to criteria of “continuity, precision, impartiality, competency and contemporaneousness” and a summary of what is said or omitting passages of what is said is not acceptable;
f) the interpreter must “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”;
g) the relevant question is whether the interpretation was so incompetent as to have effectively prevented an applicant from giving evidence;
h) the departure from the standard of interpretation “must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”, and it must relate to the proceedings and not be merely administrative or collateral in nature; and
i) a relevant departure from the required standard of interpretation is sufficient to establish prejudice caused to the applicant, however further prejudice can also be shown where findings concerning an applicant’s lack of credit are also material to the Tribunal’s decision. The incompetent interpretation can thus form the context for negative credibility findings upon which a Tribunal decides to reject an applicant’s claims. “A witness whose answers appear to be unresponsive, incoherent or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness”.
57. The Full Court of the Federal Court in WALN v Minister for Immigration & Multicultural & Indigenous found that the appellant must establish that “errors had in occurred in translation which were so material as to cause the decision making process to miscarry”.
(footnotes omitted)
In SZQQU v Minister for Immigration & Anor [2014] FCCA 425, a decision of this Court handed down on 11 March 2014, I stated at [122]-[123] and [125]-[126] (citing the Full Federal Court’s decision in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142):
122. The recent Full Court decision in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 per Allsop CJ, Flick and Robertson JJ provides a comprehensive statement in respect of procedural fairness concerning standard of interpretation afforded to an applicant. In that decision, his Honour Allsop CJ stated at [9]-[11]:
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?
11. That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.
123. Allsop CJ in SZRMQ (supra) then reviewed a number of decisions of the Federal Court dealing with the question of adequacy or not of interpretation at [14]-[25] where 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.
125. His Honour Allsop CJ in SZRMQ (supra) stated at [5]-[10] and [24]:
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. …The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process…
126. In SZRMQ (supra) his Honour Robertson J set out the principles to be applied in determining whether or not inadequate translation means that a hearing is 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.
…
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:
(a) that the standard of interpretation at the interview by the reviewer was so inadequate that the appellant was effectively prevented from giving evidence at the hearing; or
(b) that errors were made by the interpreter at the reviewer interview, which were material to the conclusions which the reviewer made adversely to the appellant.
This is significant because that was the test which the primary judge, it seems, applied in the present case, see at [30] and [103] and [109]. That test is in substance the same as the test stated in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230at [17]- [18] which Allsop CJ has considered and questioned. In my opinion this test should not be applied to cases, such as the present, which involve the general law. It follows that I do not agree with the reasoning of the primary judge in various instances although I do agree with his Honour’s conclusion.
In this case, the applicant’s complaints are that the interpreter at the first Tribunal hearing was an Indian Tamil and failed to pronounce the name of the applicant’s suburb/village correctly. There were no other claims in respect of the adequacy of the interpretation and no statement made that any of the suburbs or villages referred to in the Decision Record were incorrect as a result of the alleged mispronunciation. Further, no complaints were made at that hearing or at the second Tribunal hearing in respect of any inadequacy in interpretation. No affidavit evidence from a NAATI Level 3 interpreter annexing a transcript of either of the Tribunal hearings with comments in respect of alleged errors was filed by the applicant, despite leave being granted to the applicant to provide such evidence.
In these circumstances I am not satisfied there have been any errors that occurred in translation at either of the Tribunal hearings which were so material as to cause the decision making process to miscarry. Consequently, this submission cannot be sustained.
I now turn to the applicant’s submissions in respect of the second Tribunal hearing. The applicant’s complaints in respect of notification by the Tribunal have been addressed above at [26].
The applicant attended the hearing by video-link between Melbourne and Sydney on 18 June 2013. The Tribunal Member, the applicant’s representative and the interpreter were all located at the Melbourne registry of the Tribunal. The applicant, who was resident in Sydney at the time, was afforded the opportunity to either appear by video-link from Sydney or attend the hearing in person in Melbourne. He chose the former option, and it follows that there would be no other people in the room with him during the course of the hearing, as the other parties involved in the hearing were all located in Melbourne.
To the extent that the applicant complains about the length of time of the hearing being only 30 minutes, this complaint is contradicted by the “RRT Hearing Record” located at CB 165-167, which states the hearing took over an hour. Notwithstanding, the applicant has not submitted that as a result of the length of the hearing he was not afforded an opportunity to present submissions or evidence in support of his Protection visa claims. Accordingly, in my view, this submission cannot be sustained. The Tribunal dealt in detail with the second Tribunal hearing at [66]-[90] of the Decision Record (CB 193-198). At the second hearing, various items of country information were put to the applicant for comment and questions asked of him. At the conclusion of the hearing, the applicant’s representative asked for a week in order to provide further written submissions. Accordingly, in my view, the applicant’s complaints in respect of the second Tribunal hearing do not raise any jurisdictional error on the part of the Tribunal and cannot be sustained.
On 7 November 2014 the applicant filed written submissions. The applicant was granted leave by the Court to file submissions addressing issues raised by WZAPN (supra), however the applicant’s submissions effectively disagree with a number of findings made by the Tribunal and seek to adduce further evidence from various sources in support of the applicant’s substantive protection claims.
To the extent the applicant seeks to engage the Court in merits review, this is impermissible: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272. The evidence sought to be adduced by the applicant (attached to the written submissions) seeks to address the merits of his protection claims. There is no suggestion the applicant was unable or not allowed to put this evidence before the Tribunal. Accordingly, the Court cannot consider this evidence and gives it no weight.
The written submissions provided by the applicant on 7 November 2014, therefore, cannot be sustained.
The “WZAPN” Issue
This matter came before the Court for hearing on 6 September 2014. Judgment was reserved.
On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN (supra) per North J.
On 1 October 2014, the Minister filed in the High Court of Australia an Application for Special Leave to Appeal from the judgment of North J in WZAPN (supra). On 9 October 2014, the Minister’s solicitors were instructed to bring these matters to the Court’s attention.
On 10 October 2014, the Court vacated the judgment listing on 13 October 2014 and requested the Minister to provide written submissions to chambers in relation to WZAPN by 17 October 2014.
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court: see Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22. It also unanimously dismissed an appeal from the Federal Court which was WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act.
Conclusion
I have read the contents of the Court Book and, particularly, the Decision Record. On a fair reading thereof, no jurisdictional error on the part of the Tribunal is apparent. Accordingly, as none of the pleaded grounds in the application or submissions made by the applicant can be sustained, the application should be dismissed with costs awarded to the Minister.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
0
28
2