SZTFQ v Minister for Immigration
[2016] FCCA 2970
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTFQ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2970 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time granted – whether Tribunal failed to apply real chance test – whether the Tribunal failed to take into account relevant evidence – whether evidence of applicant mistranslated – whether mistranslation has the effect of invalidating decision – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.48B, 425, 425(1), 477(1), 477(2) |
| Cases cited: Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 R v Tran [1994] 2 SCR 951 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 |
| Applicant: | SZTFQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2478 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 22 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the time for the making of the application is extended to 4 September 2014.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2478 of 2014
| SZTFQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 4 September 2014 the applicant, a citizen of Afghanistan, and a Hazari, filed an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The Tribunal made its decision on 22 April 2014, which means that the application for judicial review was filed outside the 35-day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Act). The applicant, therefore, seeks an order under s.477(2) of the Act extending the 35-day period prescribed by s.477(1) of the Act. In those circumstances, by consent, I had set down for hearing the application for an extension of time and, if time is extended, the substantive application for final relief.
At the hearing of the matter, however, I raised with counsel how the hearing should be conducted, having regard to the decision of Wigney J in SZTES v Minister for Immigration and Border Protection.[1] Counsel agreed that I should hear the application for extension of time, and the application for substantive relief concurrently, but that, in my reasons for judgment, I should consider and rule separately on the application for an extension of time. That is what I propose to do in these reasons for judgment.
[1] [2015] FCA 719
I first consider the principles that should guide me in determining whether to make an order under s.477(2) of the Act.
Principles governing exercise of power under s.477(2)
Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[2]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
[2] [2013] FCA 1284 at [47]-[48]
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The Federal Court has recently held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[3] Further:[4]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[3] [2015] FCA 1391 at [63] (cases cited omitted)
[4] [2015] FCA 1391 at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[5] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[6]
[5] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]
[6] [2015] FCA 1391 at [62]
Explanation for delay
The evidence on which the applicant relies to explain his delay in making his application for judicial review is contained in an affidavit he made on 3 September 2014. According to that affidavit, on 8 August 2013 the applicant was informed the Tribunal (First Tribunal) had affirmed the delegate’s decision; the applicant filed an application for judicial review of the First Tribunal’s decision; on 18 December 2013 this Court set aside the First Tribunal’s decision; and, on 1 May 2014, the applicant had been informed the Tribunal had again affirmed the delegate’s decision.
On or shortly after 2 May 2014, the applicant received a letter from BMA lawyers. They informed the applicant they could not assist the applicant with judicial review, but noted the applicant could contact PILCH (Public Interest Law Clearing House) or Legal Aid Victoria. The applicant telephoned Mr Ryan who had previously assisted the applicant when Mr Ryan was employed as a counsellor by the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. Mr Ryan informed the applicant he worked elsewhere, but suggested the applicant bring the letter the applicant received from BMA to Mr Ryan. The applicant met Mr Ryan on 2 May 2014. Mr Ryan said the applicant should seek legal advice, and suggested some lawyers from the Salvation Army. Mr Ryan arranged an appointment with the Salvation Army on 5 May 2014. The applicant met with a Ms Roberts who informed the applicant that his case would be reviewed to see if the applicant had a chance of winning in Court, and the applicant would be informed either by telephone or by letter.
In the meantime, on 15 May 2014 the applicant met with another lawyer who informed the applicant he did not think he could help the applicant. The applicant then consulted Mr Ryan again who drafted a letter dated 17 May 2014 addressed to the Minister seeking Ministerial intervention.
On 4 June 2014 the applicant received a letter dated 28 May 2014 from Salvos Legal. The letter set out two options available to the applicant. One was to apply for judicial review, and the other for Ministerial intervention. The letter stated there was a 35-day time limit to apply for judicial review.
On the same day, the applicant took the letter to Mr Ryan. Mr Ryan informed the applicant that Salvos Legal could not help him, and that the letter said that if the applicant wanted to go to Court he needed to do so within 35 days. The applicant had not been aware before that time that he had to make an application to this Court within 35 days.
By letter dated 17 July 2014 the Department of Immigration and Border Protection informed the applicant his case did not meet the Ministerial guidelines for intervention under s.48B of the Act. On or about 22 July 2014 a friend of the applicant recommended the applicant see another solicitor, Mr Varess. He did so, and, after he obtained advice from Mr Varess, the applicant made his application to this Court
The evidence shows that the applicant did not make the application within the 35-day period prescribed by s.477(1) of the Act because he was ignorant of that time limit. He became aware of that requirement on 4 June 2014, some three weeks after the Tribunal made its decision. The applicant did not apply to this Court within 35 days because, although he had sought, he was unable to obtain advice from a lawyer that the applicant might have grounds for making an application for judicial review.
I am satisfied the evidence explains the applicant’s delay for not making an application within the 35-day period prescribed by s.477(1) of the Act. I am also satisfied the explanation is adequate. The applicant did not sit on his rights; he actively sought legal advice, he acted responsibly by not making an application in this Court in the absence of advice from a lawyer that he had reasonable grounds for doing so, and the applicant made the application to this Court reasonably quickly after he consulted Mr Varess, who must have advised the applicant he had reasonable grounds for applying for judicial review of the Tribunal’s decision.
Merits of substantive grounds for relief
I next turn to whether the application discloses reasonably arguable claims for relief. That requires me to set out the applicant’s claims for protection, and the Tribunal’s reasons for not accepting those claims.
Claims for protection
According to a statutory declaration he submitted in support of his application for a Protection visa,[7] the applicant lived in a village in the Loman area in Jaghori District, Ghazni. In the summer before he left Afghanistan, at Ghujor Bazaar, in the centre of Jaghori, the applicant witnessed the display of the bodies and severed heads of six policemen whom the Taliban had beheaded. The applicant started crying because the severed heads of the men haunted him. As he was crying, a Pashtun man came close to the applicant and asked why the applicant was crying. The applicant said he felt sorrow for the dead. The man told the applicant the dead men were infidels, and it did not matter because hundreds of these infidels were killed every day. After some argument, the man warned the applicant that he deserved the same fate because the applicant was a Hazara, and that the Pashtuns had instructions from God to cleanse the earth of Hazaras.
[7] CB75
The applicant also claimed that, while he was a passenger in a car travelling to Kabul, the car was stopped by the Taliban in Dahst-e-Qarabagh. The occupants of the car, together with one hundred other people, were forced to leave their cars, and then beaten and kicked by the Taliban. While the applicant was sitting, the Taliban brought before him and the others three Hazara teenage boys at gunpoint and displayed them. The boys were dressed in western clothes. The Taliban beheaded the three boys, and their heads were placed on their chests.
The applicant said he left Afghanistan for three reasons. First, the Taliban controls the roads to Kandahar and Ghazni, and if the applicant is caught wearing western clothes he will be beaten. Second, the applicant bought four bottles of spirits with three of his friends, but one of his friends informed his uncle. The applicant was then labelled a drunk. The third reason is the applicant feared the Taliban.
In support of his application for review before the Tribunal, the applicant, through his advisers, made the following claims:
a)the applicant, as a Hazara, could not be protected by a weak government against a powerful Taliban;[8]
b)the applicant had committed a crime against Islam by drinking alcohol;[9]
c)the applicant claimed protection because he was a Shia Muslim;[10]
d)the applicant feared persecution because of his imputed political opinion as someone who held “pro-West and anti-Taliban/Islam beliefs”;[11] and
e)the applicant feared persecution because he was a member of two distinct social groups, these being failed asylum seekers from the west, and “Afghans who are alcoholics or are perceived to be alcoholics”.[12]
[8] CB276, [13]
[9] CB277, [16]
[10] CB277, [19]
[11] CB278, [21]
[12] CB278, [22]
Tribunal’s decision
The Tribunal did not accept the applicant was a witness of truth, and found he was prepared to make false statements if he believed that it would be to his advantage.[13] The Tribunal, therefore, did not accept that six Hazara policemen were beheaded in Qarabah in the northern summer of 2011 because there was no evidence of any report of such incident. The Tribunal was of the view that atrocities like the one the applicant claims he witnessed, particularly where the incident involves policemen, “are very well-reported”;[14] and that, had six Hazara policemen been beheaded by the Taliban in Qarabah in the northern summer of 2011, as the applicant claimed, “this incident would have been reported”.[15] The Tribunal found the applicant “invented this incident because he believes that it will be to his advantage”.[16]
[13] CB286, [54]
[14] CB287, [55]
[15] CB287, [57]
[16] CB287, [57]
Nor did the Tribunal accept the applicant was telling the truth about the incident in which he claims he drank alcohol.[17] The Tribunal noted the applicant was unable to provide a cogent explanation why he suddenly decided to drink alcohol at 30 years of age. The Tribunal further noted the applicant initially said he did not know drinking alcohol in Islam was forbidden, but he then conceded he had known it was “haram” (that is, forbidden by Islamic law).[18] Further, on the applicant’s evidence concerning the timing of his departure from his village to Kabul, the Tribunal found the applicant remained in his village for four months after the claimed incident of his drinking alcohol. Nothing happened to the applicant during the period, apart from one occasion at a ceremony when someone accompanying the sheikh spat on the applicant.[19] The Tribunal concluded “once again that he has invented this incident because he believes that it will be to his advantage”.[20]
[17] CB288, [58]
[18] CB288, [58]
[19] CB288, [59]
[20] CB288, [59]
The Tribunal found that information available to the Tribunal indicated the Jaghori district is almost entirely inhabited by Hazaras, and that the Hazara districts in Ghazni province, including Jaghori, have consistently been reported in recent years as relatively stable, secure, and experiencing low levels of violence.[21] The Tribunal did not accept that the departure of foreign troops “provides a substantial basis for a well-founded fear of persecution on the part of the Shia Hazara community”.[22] The Tribunal considered it would be “mere speculation to find on the evidence before me that there is a real chance that the departure of the foreign troops from Afghanistan will lead to a significant deterioration in the position of the Shia Hazara community in Afghanistan generally or in Jaghori in particular”.[23]
[21] CB288, [60]
[22] CB289, [61]
[23] CB289, [61]
The Tribunal also found the applicant would not be discriminated against if he returns to Jaghori District because of his race or religion. The Tribunal found the Hazara community in Jaghori enjoys better educational and health services than in the neighbouring provinces.[24] Further, although the Tribunal accepted there were reports of attacks on Shia Muslims in Kabul, among other cities, in December 2011, such attacks are rare and, therefore, the Tribunal was not satisfied there is a real chance the applicant will become a victim of such sectarian violence if he returns to Afghanistan.
[24] CB289, [62]
The Tribunal did not accept the applicant will be targeted because he has sought asylum in Australia.[25] The Tribunal accepted the applicant will need to travel from Kabul to Jaghori District if he returns to Afghanistan, and that he will have to travel periodically between Jaghori and Ghazni City or Kabul for various reasons as he had done in the past. Relying on a report issued by the Australian Department of Foreign Affairs and Trade (DFAT), the Tribunal found that locals, including Hazaras, “are generally able to travel between Ghazni City and the Hazara districts without incident”, and that “the main targets on the roads in Ghazni and nationally are people employed by or with direct links to the Afghan Government or the international community, regardless of their ethnicity”.[26]
[25] CB290, [66]
[26] CB290-291, [67]
Grounds of application
The amended application contains five grounds of application, although the applicant relies only on grounds 1, 2, and 5. Ground 1 is as follows:
The Tribunal’s decision is vitiated by jurisdictional error in that the Tribunal failed to attend to its statutory task, failed to ask itself the right question or failed to deal with a claim made by the applicant.
Particulars
a.The Tribunal was obligated to ask itself and determine whether the applicant held a well-founded fear of persecution in the reasonably foreseeable future upon his return to Afghanistan. The Tribunal failed to do so in the present case by failing to make findings as to whether the applicant held a well-founded fear of persecution in the reasonably foreseeable future following the withdrawal of international forces from Afghanistan.
b.Further and in the alternative, the Tribunal was obligated to deal with the applicant’s claim that he held a well-founded fear of persecution in the future following the withdrawal of international forces from Afghanistan. The Tribunal did not deal with this claim and the evidence and submissions advanced in support thereof in a manner consistent with its statutory obligations. Accordingly, its formation of its state of satisfaction under s 65 of the Act was unlawful.
In his written submissions, the applicant’s counsel relied on the passage from the Tribunal’s reasons for decision which I have already set out, namely, that it would be “mere speculation to find on the evidence before me that there is a real chance that the departure of the foreign troops from Afghanistan will lead to a significant deterioration in the position of the Shia Hazara community in Afghanistan generally or in Jaghori in particular”.[27] Counsel for the applicant submitted that the Tribunal used the words “mere speculation” to mean making an assessment of the probability of the happening of future events and, for that reason, misunderstood or misapplied the real chance test. On an initial impression, I find this ground is reasonably arguable.
[27] CB289, [61]
The second ground on which the applicant relies is as follows:
The Tribunal engaged in jurisdictional error when it found that there were no particular factors that would increase the risk of the applicant being harmed when travelling on the roads and that the applicant would not be harmed when travelling on the roads (eg CB290[73], CB293[73]) (Travel Findings).
Particulars
a.The DFAT Thematic Report: Hazaras in Afghanistan and Pakistan dated 26 March 2014 (CB245-262) stated that (Information):
i.individuals working for, supporting or associated with the Government and the international community were at high risk of violence perpetrated by insurgents on roads in Afghanistan;
ii.Hazaras were perceived to be affiliated with either the Government of international community;
iii.credible sources told DFAT that dozens of Hazaras were killed on the roads to Hazarajat.
b.The Tribunal failed to take into account the Information when making the Travel Findings, thereby failing to deal with a relevant consideration or failing to lawfully form the relevant state of satisfaction pursuant to s 36 of the Act.
This ground relates to the Tribunal’s finding, which I have already set out, that “the main targets on the roads in Ghazni and nationally are people employed by or with direct links to the Afghan Government or the international community, regardless of their ethnicity”.[28] In his written submissions, counsel for the applicant submits that the Tribunal’s finding was based on “DFAT Country Information Report No.12/64, dated 31 October 2012, CX298127”, whereas the Tribunal had provided to the applicant before the hearing a document “DFAT Country Report Afghanistan 26 March 2014” which did not contain the words “regardless of their ethnicity”. The applicant submits, therefore, that the Tribunal did not take into account the “DFAT Country Report Afghanistan 26 March 2014” and, for that reason, made a jurisdictional error.
[28] CB290-291, [67]
Again, on an initial impression, I find this ground is reasonably arguable.
The fifth ground of application is as follows:
The Tribunal engaged in jurisdictional error when it found that the applicant had deliberately lied about whether there was a hospital in Jaghori because he believed that this would be to his advantage (CB286[54]) and had attempted to claim that there was no hospital in Jaghori (CB289[62]).
Particulars
a. The finding that the applicant had claimed that there was no hospital in Jaghori was a finding made in the absence of evidence. The applicant never said that there was no hospital in Jaghori;
b. Further and in the alternative, the Tribunal breached s 425 of the Act by failing to give the applicant an opportunity to give his evidence and present his arguments to the Tribunal concerning the medical care available in Jaghori:
i. At the hearing, the applicant said that if there was a good hospital in Jaghori, there was no need to go to Kabul;
ii. This was mistranslated to “And there was a hospital in Jaghori, an operation could be carried out in Jaghori, so there’s no need to travel to Kabul for treatment, or for medical attention”;
iii. This was a significant mistranslation that was capable of affecting the outcome of the case in that it lead the Tribunal to believe that the applicant had stated that there was no hospital in Jaghori, which was a reason why the Tribunal rejected the applicant’s credibility.
The applicant relies on evidence that arguably shows there may have been a mistranslation. Again, on an initial impression, ground 5 raises an arguable ground of relief.
Whether order extending time should be made
I am satisfied there is an adequate explanation for the applicant’s delay. Although the delay is not insubstantial, it also is not great. And I find that the grounds on which the applicant relies are reasonably arguable. I am satisfied, therefore, that it is necessary in the interests of the administration of justice that an order extending time should be made under s.477(2) of the Act, and I will make such order.
I now turn to the grounds of application.
Ground 1
This ground relies on the ambiguous meaning of “speculation” identified by the plurality in Ministerfor Immigration & Ethnic Affairs v Wu Shan Liang:[29]
The use by the delegates of the phrase “I consider it speculative ... to suggest that (the respondents) would be treated more harshly than in the known relevant cases” was taken by the Full Court to indicate that the Chan test miscarried. This conclusion was reached by, first, characterising the phrase in a particular way and, then, demonstrating that the phrase so characterised indicated an approach inconsistent with the Chan test. The Full Court found that the phrase “seems to suggest that speculation ought not be engaged in”. It interpreted “speculation” as used by the delegates to encompass prediction of the future. From this it followed that the Chan test must have miscarried because it is clear that the test in Chan necessitates speculation in the sense of prediction, in other words, an assessment of the future. That is implicit in the formulation “real chance”.
If the Full Court was right in its characterisation of the delegates' reasons, then that would certainly demonstrate an incorrect approach. However, with respect, the Full Court was in error when it so characterised the delegates' reasons. The word “speculative” in the context in which it appears need not amount to a denial of the delegates' function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate. An example of such a use of the word “speculative” is provided in a judgment by a majority of this Court in Malec v J C Hutton Pty Ltd. In the context of discussing the assessment of damages for future events, Deane, Gaudron and McHugh JJ said:
“The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.”
This sense of the word is consistent with the context in which it appears in the delegates' reasons. In considering “what might happen” to the respondents “if” returned to the PRC, the delegates held that submissions in relation to PRC law and the administrative measures which “could” be taken did no more than raise a remote chance that the respondents “would be treated more harshly than in the known relevant cases”. There is nothing here to suggest that the delegates abandoned the process of looking to the future which is the essence of the Chan test. There is certainly nothing which would suggest such a conclusion in sufficiently strong terms to overcome a properly “beneficial construction” of the delegates' reasons.
[29] [1996] HCA 6; (1996) 185 CLR 259 at [42]-[43] (Brennan CJ, Toohey, McHugh and Gummow JJ) (footnotes ommitted)
The applicant submits the Tribunal used the word “speculation” to mean making an assessment of the probability of the happening of future events and, for that reason, misunderstood or misapplied the real chance test. In other words, the applicant submits the Tribunal abandoned the process of looking to the future. I am not satisfied that is what the Tribunal did.
First, the Tribunal was aware of, because it quoted,[30] the following passage from Minister for Immigration & Ethnic Affairs v Guo Wei Rong :[31]
But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[30] CB297, [86]
[31] [1997] HCA 22; (1997) 191 CLR 559 at page 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)
Second, the Tribunal said it concluded “on the basis of the evidence before” it that it considered it to be mere speculation to find that the departure of foreign troops from Afghanistan will lead to a significant deterioration in the position of the Hazara community in Afghanistan generally or in Jaghori district.[32] That implies the Tribunal recognised it was necessary for it to assess the probability of the happening of a future state of affairs, but that that assessment had to be made on the basis of evidence. Third, the applicant made no attempt to submit that, on the material that was before the Tribunal, it was not reasonably open to the Tribunal to conclude, on the basis of the correct understanding of assessing whether a claimant had a well-founded fear of persecution, that it would be mere speculation to find that the departure of foreign troops from Afghanistan will lead to a significant deterioration in the position of the Hazara community in Afghanistan generally or in Jaghori district. This consideration is not, of course, conclusive; but where it is submitted the Tribunal articulated but failed to correctly understand or apply, a particular legal principle or standard, one way in which that may be demonstrated is by showing that the conclusion the Tribunal in fact reached is not one that could reasonably have been reached by a decision-maker who correctly understood the relevant principle or standard.
[32] CB289, [61]
For these reasons, ground 1 fails.
Ground 2
The starting point in considering this ground is the letter dated 27 March 2014 the Tribunal sent to the applicant’s legal representative.[33] The letter attached a document titled “DFAT Country Report Afghanistan 26 March 2014” (2014 DFAT Report).[34] That document contained the following passage (emphasis added):[35]
Individuals working for, supporting or associated with the Government and the international community are at high risk of violence perpetrated by insurgents on roads in Afghanistan. Carrying documentation that would indicate employment or another connection with the Government is dangerous. Because Hazaras are perceived to be affiliated with either the Government or international community, those Hazaras travelling these routes who work for the Government or international community frequently take precautions to ensure that, if they are stopped, they could not be identified as such.
[33] CB222
[34] CB223
[35] CB259
In its reasons for decision, the Tribunal records it put certain country information to the applicant as follows:[36]
I put to Mr [applicant] that the Australian Department of Foreign Affairs and Trade has advised that local with ties to the province and knowledge of the area – including Hazaras – were generally able to travel between Ghazni City and the Hazara districts without incident and that thousands of vehicles used the roads daily. I put to him that the Department had said that its contacts all agreed that the main targets on the roads in Ghazni and nationally were people employed by or with direct links to the Afghan Government or the international community, regardless of their ethnicity.
[36] CB285, [48]
To that passage, the Tribunal appended a footnote that refers to the following:[37]
DFAT Country Information Report No.12/64, dated 31 October 2012, CX298127; DFAT, ‘Afghanistan: Hazara Community Update’, 12 March 2012, CX283654.
[37] CB285, fn.11
Later in its reasons for decision, the Tribunal recorded the following:[38]
I accept that Mr [applicant] will have to travel from Kabul to his home in the Jaghori district if he returns to Afghanistan and that he will also have to travel periodically between Jaghori and Ghazni City or Kabul for various reasons as has he has done in the past. As I put to him, the Australian Department of Foreign Affairs and Trade has advised that locals with ties to the province and knowledge of the area – including Hazaras – are generally able to travel between Ghazni City and the Hazara districts without incident and in fact thousands of vehicles use the roads daily. As I put to him, the Department has said that its contacts all agree that the main targets on the roads in Ghazni and nationally are people employed by or with direct links to the Afghan Government or the international community, regardless of their ethnicity.
[38] CB290-291, [67]
To that passage there is appended a footnote, which referred to the following sources:[39]
DFAT Country Information Report No.12/64, dated 31 October 2012, CX298127; DFAT, ‘Afghanistan: Hazaras Community Update’, 12 March 2012, CX283654; and see now the DFAT Thematic Report – Hazaras in Afghanistan and Pakistan, 26 March 2014, paragraph 4.33.
[39] CB291, [67]; fn.11
It appears, and I find, that the “DFAT Thematic Report – Hazaras in Afghanistan and Pakistan, 26 March 2014” referred to in this footnote is intended to be a reference to the “Thematic Report” referred to in the Tribunal’s letter to the applicant’s lawyers dated 27 March 2014.[40] In other words, I find that it is a reference to the 2014 DFAT Report. That is so even though the 2014 DFAT Report does not contain a “paragraph 4.33”. In any event, the applicant does not contend that the “DFAT Thematic Report – Hazaras in Afghanistan and Pakistan, 26 March 2014” is not the 2014 DFAT Report.
[40] CB222
The applicant submits that in concluding that “the main targets on the roads in Ghazni and nationally are people employed by or with direct links to the Afghan Government or the international community, regardless of their ethnicity” (Finding),[41] the Tribunal failed to take into account the 2014 DFAT Report. The basis of that submission is that the Tribunal did not include in the Finding words to the effect “[b]ecause Hazaras are perceived to be affiliated with either the Government or international community”, being words contained in the 2014 DFAT Report, but not in the other two DFAT reports referred to in the footnotes. Counsel for the applicant, therefore, submits the Tribunal made the same error the Tribunal was found to have made in SZSSY v Minister for Immigration and Border Protection.[42]
[41] CB290-291, [67]
[42] [2014] FCA 1144 (Jagot J)
Counsel for the Minster makes two related submissions. First, he submits the Finding did not purport to be a quote from any one DFAT report and, for that reason, it cannot be inferred the Tribunal failed to take into account the 2014 DFAT Report.[43] Counsel relies on the Tribunal’s referring to three DFAT reports in a footnote that it appended to the Finding. Second, there is no substantial difference between the 2014 DFAT Report and the other DFAT reports. Counsel submits that, although the 2014 DFAT Report refers to Hazaras being perceived to be affiliated with either the government or the international community, it does not say that Hazaras are more likely to be targeted on that account. What the 2014 DFAT Report says is that Hazaras who work for the Government or international community are at risk.
[43] Submissions of the First Respondent, [21]
I accept the Minister’s submissions. The Tribunal, in recording its Finding, refers in a footnote to three DFAT reports, one of which is the 2014 DFAT Report. That indicates the Tribunal had in mind and relied on all three DFAT reports which it identified in the footnote, including the 2014 DFAT Report. At the very least, I am not satisfied the Tribunal did not have regard to the 2014 DFAT report. Further, the 2014 DFAT Report does not undermine or contradict the Finding. It does imply that Hazaras who are employed by the Government or by the international community are targeted; but that is not because they are Hazaras. It is because they are employed by the Government or the international community. The 2014 DFAT Report says that it is those Hazaras, not Hazaras in general, who frequently take precautions; and they take precautions, not to avoid being identified as Hazaras, but to avoid being identified as persons who are employed by the Government or the international community.
Ground 2, therefore, fails.
Ground 5
Ground 5 is directed to the Tribunal’s finding that the applicant said “if there was a hospital in Jaghori these operations could be carried out in Jaghori”, and the Tribunal relying on that finding, in part, to find that the applicant was prepared to make false statements if he believed it would be to his advantage. The applicant submits the Tribunal’s finding that the applicant said words to the effect of “if there was a hospital in Jaghori these operations could be carried out in Jaghori”, was based on a mistranslation by the interpreter of what the applicant said.
In support of his submission of mistranslation, the applicant read an affidavit of Mr Khan, who is accredited by the National Accreditation Authority for Translators and Interpreters, to interpret Hazaragi into English. Mr Khan deposed that he listened to a recording of the hearing at CD2, 16:23 to 17:47. He then set out in English words the applicant spoke in Hazaragi (emphasis added) (Khan version):
Jaghori, for example, if there is a minor illness, or for example if a women [sic] is pregnant, or for example, if it gets close to the delivery time, or she experiences too much pain, you need to load her into a vehicle and drive her to Ghazni, or driver her to Kabul, if there is a good hospital there [in Jaghori] and for example if there is a proper hospital where an operation can be performed or treatment can be done, then there is no need to take her to Kabul.
Mr Khan then set out a passage from the transcript of the hearing before the Tribunal of what the interpreter said in English when interpreting the words the applicant spoke in Hazaragi:
In Jaghori, for some minor disease or sickness, sickness, for example if a lady is pregnant, and near to the delivery time, uh, she must go to Kabul, to Kabul or Ghazni. And there was a hospital in Jaghori, an operation could be carried out in Jaghori, so there’s no need to travel to Kabul for treatment, or for medical attention.
The applicant submits that, on the Khan version of what the applicant said in Hazaragi, the applicant did not claim there was no hospital in Jaghori. The basis of that submission is that, in the Khan version, the words “good” and “proper” qualify the word “hospital”, whereas the words “good” and “proper” are absent from what the interpreter said at the hearing. In short, the applicant submits the applicant said there was not a “good” or a “proper” hospital in Jaghori, and this is different to stating there was no hospital in Jaghori. In the words of counsel for the applicant, the applicant “was criticising the quality of the hospital”.[44]
[44] T25.40
The Minister accepts there is a disparity between what was interpreted at the hearing and the Khan version. The Minister submits, however, that there is no material difference between the two versions. The Minister also submits that, to the extent there is a difference, it related only to credit, and it was possible to untangle that finding from findings on which the Tribunal relied for not accepting the applicant’s claims. Before I consider the competing submissions, it is necessary to identify the relevant principles.
Under s.425(1) of the Act the Tribunal must “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to issues arising in relation to the decision under review”. That obligation implies a right in the applicant to be given a fair opportunity to give evidence and present arguments. That, at the very least, implies the applicant’s having the capacity to understand what the Tribunal member says at such hearing, and for the applicant to communicate in a manner which the Tribunal understands that which the applicant wishes to communicate to the Tribunal. Where the applicant is not proficient in English, the only means by which an applicant can be given a hearing of the sort required by s.425(1) of the Act, therefore, is if there is available a person who is capable of interpreting into a language in which the applicant is proficient the English words spoken by the Tribunal, and to interpret into English the words spoken by the applicant in the language in which the applicant is proficient. The Tribunal has no jurisdiction to conduct a hearing under s.425(1) of the Act where an applicant who is not proficient in English does not have an interpreter available to him or her.[45]
[45] Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [20]
Given that an applicant who is not proficient in English must have available an interpreter, three questions arise. The first concerns the nature of the tasks an interpreter must undertake when interpreting at a hearing before the Tribunal. Kenny J considered that question in Perera v Minister for Immigration & Multicultural Affairs.[46] Her Honour said that the “function of an interpreter in the Tribunal . . . is to place the non-English speaker as nearly as possible in the same position as an English speaker”; and that the interpreter “provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant’s own linguistic capacities are not, on their own, sufficient to that end”.[47]
[46] [1999] FCA 507; (1999) 92 FCR 6
[47] [1999] FCA 507; (1999) 92 FCR 6 at [24]
The second question concerns the standard by reference to which the quality of interpretation in any given case is to be assessed. Kenny J also considered that question in Perera. Her Honour observed that “[i]nterpreting reliably involves both technical skill and expert judgment”.[48] Perfect interpretation, however, may be impossible because “[v]ery rarely is there an exact lexical correspondence between the two languages being used”.[49] Nevertheless, “some interpretation will be better than others, and a particular interpretation may well be less than perfect yet acceptable for the Tribunal’s purpose”;[50] and the standard by reference to which the quality of a specific interpretation is to be assessed is that of “competence”.[51] That implies a number of criteria, including “continuity, precision, impartiality, competency and contemporaneousness”.[52] One may safely assume that the most important criterion is accuracy. As Kenny J said, while the interpretation “at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”.[53]
[48] [1999] FCA 507; (1999) 92 FCR 6 at [25]
[49] [1999] FCA 507; (1999) 92 FCR 6 at [26]. This quote is taken by her Honour from A L Robinson Handbook for Legal Interpreters (1948), p 98
[50] [1999] FCA 507; (1999) 92 FCR 6 at [26]
[51] [1999] FCA 507; (1999) 92 FCR 6 at [31]
[52] [1999] FCA 507; (1999) 92 FCR 6 at [28] quoting from the judgment of McLachlin J delivering the judgment of the Supreme Court of Canada in R v Tran [1994] 2 SCR 951
[53] [1999] FCA 507; (1999) 92 FCR 6 at [29]
The third question concerns the consequences of a particular interpretation falling short of the required standard of interpretation. That question has received some attention in the cases. In Perera, Kenny J said that it “is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal”; the “departure must relate to a matter of significance for the applicant’s claims or the Tribunal’s decision”.[54] In WALN v Minister for Immigration and Multicultural and Indigenous Affairs Ryan J (with whom Tamberlin and Middleton JJ agreed) said:[55]
To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence . . . Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry . . .
[54] [1999] FCA 507; (1999) 92 FCR 6 at [45]
[55] [2006] FCAFC 131 at [29]
The Full Federal Court considered the question in SZRMQ v Minister for Immigration and Border Protection.[56] As Griffiths J noted in SZSEI v Minister for Immigration and Border Protection, the discussion in SZRMQ of the consequences of mistranslation occurred in a context other than s.425 of the Act; the discussion was “primarily concerned with the application of common law procedural fairness requirements to mistranslations or non-translation”. [57] Griffiths J, however, was of the view there was an overlap between the principles as they applied in a statutory and non-statutory context, although his Honour did not consider it necessary to define with precision the extent of the overlap.[58]
[56] [2013] FCAFC 142
[57] [2014] FCA 465 at [71]
[58] [2014] FCA 465 at [71]
In SZRMQ Alssop CJ said: [59]
[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.
. . .
[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.
[59] [2013] FCAFC 142 at [5], [9], and [10]
It will be seen from the last two sentences of this passage that his Honour did not consider that, at least in the case of procedural fairness at common law, it was necessary to show a causal connection between the mistranslation and the decision-maker’s actual reasoning for a mistranslation to render the procedure unfair. His Honour repeated this point with greater emphasis in the following passage:[60]
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 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.
[60] [2013] FCAFC 142 at [24]-[25]
Similar views were expressed by Robertson J:[61]
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.
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.
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.
[61] [2013] FCAFC 142 at [67]-[69]
In SZSEI Griffiths J said that these observations apply equally to hearings conducted under s.425 of the Act.[62]
[62] [2014] FCA 465 at [71]
In the case before me, the applicant claims the interpreter made only one translation error. It is not submitted that because of that one error, the entire hearing was unfair. In those circumstances, it seems to me that, for the translation error to result in the Tribunal making a jurisdictional error, it is necessary for the applicant to show that the error related to “a matter of significance for the applicant’s claims or the Tribunal’s decision”,[63] or that the error was “so material as to cause the decision-making process to miscarry”.[64]
[63] Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [45]
[64] WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]
The first question I must consider, however, is whether there was a mistranslation at all. That is to be determined by comparing the meaning conveyed (in English) by the Khan version with the meaning conveyed by the words the interpreter used at the hearing. As I have already noted, the applicant submits that the use of the words “good” and “proper” to qualify the word “hospital” conveyed the meaning that there was a hospital in Jaghori but not a good or proper hospital. Whether that submission is correct, however, must be assessed in the context in which the mistranslation occurred; and that context is slightly wider than the Khan version of what the applicant said in Hazaragi and what was interpreted at the hearing. The relevant context is the entire discussion concerning the presence of a hospital in Jaghori. That discussion was as follows (using the Khan version):
MEMBER: . . . the information available to me also indicates that the Hazara community in Jaghori enjoys better educational and health services than in the neighbouring provinces.
INTERPRETER: I don’t know about it.
MEMBER: Well you’ve lived there for a very long time, Mr…[applicant], you have children, you have a family . . . you must know about the education and health services.
INTERPRETER: [Khan version] Jaghori, for example, if there is a minor illness, or for example if a women [sic] is pregnant, or for example, if it gets close to the delivery time, or she experiences too much pain, you need to load her into a vehicle and drive her to Ghazni, or driver her to Kabul, if there is a good hospital there [in Jaghori] and for example if there is a proper hospital where an operation can be performed or treatment can be done, then there is no need to take her to Kabul.
MEMBER: Mr [applicant], you must be aware there’s a very good hospital in Jaghori, in Sangi Masha.
INTERPRETER: Actually yes, there’s a, Shuhada, the hospital called Shuhada hospital, and the, the appearance, it is good, and uh, construction, it is, uh, made from stones. Compared to the surrounding building, it is beautiful, yeah good, but, uh, people take their major, you know, sickness, uh, major … uh sick people to Kabul, to Pakistan, even to India, for treatment.
In my opinion, on a fair reading of these passages, which includes the Khan version, the applicant impliedly asserted there was no hospital in Jaghori. It cannot reasonably be read as the applicant “criticising the quality of the hospital” at Jaghori. First, in response to the Tribunal’s question that the Hazara community in Jaghori enjoys better educational and health services than in the neighbouring provinces, the applicant said he did not know about it. Second, when pressed that he must know something about the educational and health services in Jaghori, the applicant said that persons who have minor illnesses, and women who are ready to give birth, have to travel to Ghazni or Kabul. That impliedly coveys a representation to the effect there is no hospital in Jaghori; for why would people with minor illnesses and women who are about to give birth need to travel to Ghazni or Kabul if there was a hospital in Jaghori? Third, in response to the Tribunal’s question that the applicant must be aware there was a good hospital in Jaghori, the applicant agreed; he did not say the hospital was not good or proper. If, as the applicant appears to submit, the true effect of the applicant’s evidence was there was a hospital in Jaghori, but not a good or proper hospital, he had the opportunity to say so in response to the Tribunal’s putting to him that he must be aware there was a good hospital. Instead of asserting there was a hospital in Jaghori, but it was not a good or proper hospital, the applicant said the hospital was beautiful; and he also said that people with major sicknesses go to Kabul, Pakistan, and even India.
Suppose, however, I am wrong in concluding that the meaning conveyed by the Khan version is not different from the meaning conveyed by the interpreter at the hearing. The question that would then arise is whether, had the interpreter spoken the Khan version, the Tribunal would nevertheless have made the same decision. In particular, would the Tribunal have concluded the applicant was willing to make false statements if he believed it would assist him? I am satisfied the Tribunal would have made the same decision. First, the Tribunal found the applicant invented two incidents, namely his witnessing the public display of executed policemen, and his consuming alcohol, because the applicant believed it to be to his advantage. The Tribunal gives reasons for concluding the applicant invented these incidents, none of which includes the Tribunal’s having found the applicant deliberately lied about whether there was a hospital in Jaghori, or the Tribunal’s having found the applicant is not a witness of credit. I am satisfied the Tribunal did not in fact rely on any such findings and, for that reason, I am satisfied the Tribunal would have found the applicant invented the incidents and would have affirmed the delegate’s decision.
Second, assume that, by saying the words “if there is a good hospital there [in Jaghori] and for example if there is a proper hospital where an operation can be performed or treatment can be done, then there is no need to take her to Kabul”, the applicant intended, and the Tribunal would have understood the applicant to have intended, to convey there was a hospital in Jaghori, but the hospital was not good or was not proper. When the Tribunal put to the applicant that he must be aware there is a very good hospital in Jaghori, the applicant said he knew there was a good and beautiful hospital, but noted that people with major illnesses went to Kabul or Pakistan or even India for treatment. That answer, to the extent it said the applicant knew there was a good hospital in Jaghori, is inconsistent with the statement the applicant submits the applicant said, but was mistranslated, namely, that there was a hospital in Jaghori, but the hospital was not good or was not proper. If, therefore, on the basis of what it understood the applicant said about there being no hospital in Jaghori, the Tribunal concluded the applicant was willing to make false statements, it is likely that the Tribunal would have made the same finding if the Tribunal had instead understood the applicant to have initially stated there was no good or proper hospital, and that persons with minor illnesses and women ready to give birth did not attend, only for the applicant in his next answer to say that the hospital in Jaghori was good and beautiful and that it was only persons with serious illnesses who travelled to Kabul or Pakistan or even India.
For these reasons, ground 5 fails.
Conclusion and disposition
I propose to make an order under s.477(2) of the Act, but will dismiss the application. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 17 November 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Procedural Fairness
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Natural Justice
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Judicial Review
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Jurisdiction
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