SZTQZ v Minister for Immigration
[2016] FCCA 2057
•11 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTQZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2057 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal breached s.424A or s.424AA – whether applicant denied a fair hearing under s.425 due to interpretation difficulties before the Tribunal – whether Tribunal failed to consider a claim – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424AA, 424A, 425, 474, 476 |
| Cases cited: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 |
| Applicant: | SZTQZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3102 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 July 2016 |
| Date of Last Submission: | 6 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2016 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondents: | Ms S Burnett of Clayton Utz |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 12 December 2013 and amended on 19 March 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3102 of 2013
| SZTQZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 December 2013 and amended on 19 March 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”) made on 15 November 2013 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), the affidavit of Ms Zoe Taylor, solicitor, made on 23 September 2014 annexing a transcript of the Tribunal hearing (“1T”) and the affidavit of the applicant of 19 March 2014 annexing a transcript of the Tribunal hearing said to have been prepared by “Karnafuli International” (“2T”).
Background
The applicant is a citizen of Bangladesh. He arrived in Australia on 5 April 2012 as “an irregular maritime arrival” (CB 1). He ultimately applied for a protection visa on 11 February 2013 (CB 28 to CB 85). He was assisted by a registered migration agent and lawyer (CB 59). The Minister’s delegate refused the grant of the protection visa on 15 July 2013 (CB 99 to CB 120).
The applicant applied to the Tribunal for review of the delegate’s decision on 24 July 2013 (CB 121 to CB 127). He continued to be represented by a registered migration agent and lawyer (CB 121). The applicant attended a hearing before the Tribunal on 10 October 2013. His representative also attended (CB 186).
The representative made detailed written submissions on 4 October 2013 prior to the hearing, and subsequently on 24 October 2013 addressing what was said to be information put to the applicant at the hearing pursuant to s.424AA of the Act.
The applicant’s claims to fear harm on return to Bangladesh were that he would be harmed for reason of his actual, or imputed, political opinion. The applicant claimed to be a member of the Bangladesh Nationalist Party (“BNP”) and to fear harm from the Awami League (“AL”) and its supporters.
The applicant also claimed that he would be harmed because he left Bangladesh on a false passport and was a member of a particular social group, “failed asylum seekers who departed the country illegally”.
The Tribunal accepted that the applicant’s grandfather and father may have been supporters of the BNP. It did not accept that they were members, or that the applicant’s father was a politician ([16] at CB 208).
The Tribunal found that its concerns about the applicant’s credibility were sufficient to cast doubt on the applicant’s central claim of feared harm. The Tribunal rejected the applicant’s claim.
The Tribunal found that the applicant’s evidence about his grandfather’s and father’s activities to be “vague and lacking in detail”. It noted that at the hearing the applicant said that he “could not give a clear picture”. The Tribunal did not accept, based on the applicant’s “limited evidence”, that his grandfather was an active member of the BNP ([17] at CB 208).
The Tribunal similarly found his evidence to be vague and lacking in detail in regards to the claim that his father was Vice-President of the BNP. It found that he gave an “ambiguous description” of his father’s alleged official position, which was in any event inconsistent with a certificate from the BNP which the applicant had submitted in support of his claims. The Tribunal further found that the applicant’s evidence regarding his father’s responsibilities as the Vice-President was “not reflective of a political position” ([18] at CB 208 to CB 209).
The applicant had set out claims in a Statutory Declaration attached to his protection visa application about his grandfather’s and father’s political associations and activities. The Tribunal found the applicant’s evidence to it in explanation of what was relevantly stated in the Statutory Declaration to be inconsistent with BNP certificates he had also submitted. The Tribunal found what the applicant had said to be unsatisfactory and difficult to accept ([19] at CB 209).
The Tribunal found the applicant’s claims about his father and grandfather to be implausible, and the applicant’s omission from his Statutory Declaration of matters which he subsequently raised at the hearing to cast serious doubts on the credibility of his claims. The Tribunal placed little weight on BNP certificates provided by the applicant ([19] at CB 209).
The Tribunal found that the applicant’s evidence before the delegate was inconsistent with what he told the Tribunal concerning his reasons for leaving Bangladesh. The applicant told the delegate he left because he was suffering from financial problems, but told the Tribunal he left for fear of persecution. When the Tribunal put this to him he claimed he had a “problem with his brain” and was unable to tell the delegate what he had stated to the Tribunal ([20] at CB 209 to CB 210).
The Tribunal also put to the applicant, pursuant to s.424AA of the Act, that when interviewed on arrival in Australia he answered “no” to the question of whether he or his family had even been associated with or involved with any political group. The Tribunal found the applicant’s explanation for failing to raise matters which were subsequently said to be central to his claims at the interview on arrival, to be implausible ([21] at CB 210).
The Tribunal rejected the entirety of the applicant’s factual claims to fear harm based on his grandfather’s and father’s claimed political activity ([23] at CB 210 to [29] at CB 212).
The Tribunal did not accept the applicant’s claim that he left Bangladesh illegally by using a “fake” passport. The Tribunal found his evidence as to how he obtained the false passport to be inconsistent, and to have contained claims not made in his protection visa application ([30] at CB 212). The Tribunal also found that the birth certificate submitted by the applicant was not genuine ([32] at CB 213). The Tribunal considered and rejected the applicant’s claim that he would face harm on return because he had left Bangladesh illegally using a false passport ([33] at CB 213 and [35] at CB 213 to [36] at CB 214). The Tribunal had regard to country information and found there was no impediment to his return.
In all, the Tribunal found he did not satisfy either of the criteria for the grant of a protection visa and affirmed the delegate’s decision.
Application Before the Court
The grounds of the amended application are as follows:
“1. The Second Respondent failed to afford the Applicant procedural fairness in circumstances where he was not given an opportunity to respond to All adverse findings and inconsistencies in accordance with the requirements in section 424 A of the Migration Act 1958 (the Act).
Particulars:
The Tribunal Member stated ‘I may ask you to comment on information that I have from a range of independent sources about the situation in your Country’ (Bangladesh). After answering my questions you will have an opportunity to raise any additional matters that you consider important to your claims and after I have heard all of your evidence I will ask your advisor wishes to suggest to me any other matter .I should ask you abou or make a submission. "
(RRT Hearing Transcript Pages 4 and 5 )
At no stage during hearing did the Tribunal mention that it will use ‘other material available from range of sources . Yet in the decision record the Tribunal makes the disclosure.
The applicant submits that the second respondent did not give the applicant written notice in accordance with sections 424 A & 441A of the Migration Act of particulars of All information it considers would the reason or part of reason , for affirming the decision that is under review.
Under the heading’ Decision’ of the decision record ( RRT decision page 13 Col 45 and col 47 ) the Tribunal states : ‘The Tribunal affirms the decision not to grant the applicant a Protection ( Class XA ) Visa.’
The Tribunal states that he was never told about or given the relevant information could be reason or part of reason , for affirming the decision made.
An explanation ensuing that the applicant understood why the information was relevant to the review and a particular that the information would be used in relation to the general assessment of the credibility of the applicant was never given to the Applicant.
2 The Tribunal ’s decision is infested with jurisdictional error due to the applicant being denied fair hearing.
Particulars:
The Tribunal set the agenda right at the begnning of the hearing ‘I have before me all the information you have provided to the Department of Immigration and provided to the tribunal . What I will be doing today is asking you a number of questions trying to get a clear picture of your circumstances as I possibly can’. RRT transcript page 4 Col 5)
Instead of stating such a statement the Tribunal ought have pursued its line of questioning to check the verocity of the applicant's claims rather than relying on credibility just because the applicant could not clearly express himself or be as articulate as the Tribunal expected him to be.
Applicant claims that during the hearing there was a communication gap between Bengali language Interpreter and the applicant . The Tribunal member realised these difficulties of Communication and Interpretation , although the Tribunal member continued the hearing .The member stated : ‘The interpreter will also let me know if he is having any trouble understanding you . Now, I want to confirm because I understand there were some difficulties during preliminary discussions with the ..... with interpreter and communication, sorry ,so I want to confirm that you are understanding the interpreter’
Interpreter : If you can say like this way , I understand
Member : What .. .. What do you mean by that ?
Interpreter: If you say like this way then I can understand , but as you started first time it was difficult for me to understand
Memebr: When I started or when th ehearing Officer Satarted ? Can you clarify , with him please?
Interpreter : What he said initially with the Hearing Officer there was a difficulty to understand now he is happy . So he now asking me if you do’t understand these things ..... ( Unclear()
Female Voice: (Unclear ) ... not happy?
Member : I ... I ‘ll ask the question I think .. I.. .I... We'll clarify this because I' have ... clearly we're not going to continue until I'm satisfied that you are understanding the interpreter so I just want to make sure do you ... are ... can you understand the interpreter ?
The Interpreter : He said that initially I had difficulty , now I understand . So now if you do't understand what can I do?
Member: Well.. who ... I'm ... I m clear ... I do not know wo does not understand . All I want to know is .... Do you ... can you understand the interpreter so we are able to proceed with today's hearing because it's important ... you need to know ... you need to be able to understand the interpreter . So I just need you to tell me if you can understand him or not
[Applicant]: (Unclear) ... talk in English?
Member : Maybe ... I am happy if you want to explain in English , It might be easier .Go ahead.
[Applicant]: (Not clear) I a little bit understand
Ms. Kamada : Okay,Okay, So you ... Do you want to tell the Member? [Applicant]: Tell me, look at me Tell me . You cannot talk to me directly . I can understand you . Go ahead
[Applicant]: So first ... yeah ... so first time uhh .. I'm no understand the interpreter talk ... so now I have a ... understand his talk .
Member Yeah, yeah (Unclear) I am happy , yes. ( RRT transcript pages 4,5,6)
The applicant claims that the whole hearing was completed a doubt and duress. Someplaces he was feeling to tell some thing but did not express freely and fairly .
It seems he was bound to continue this hearing .
During hearing ,at different stage of questioning , the applicant absolutely did not understand many legal and technical words and gave answer yes or no .
Applicant claims that he was denied natural justice when his hearing was not freely and fairly.
3. The applicant claims that the Tribunal made a jurisdictional error when his case was not considered under the Complementary Protection Obligation .
Particulars :
The applicant claims that the Tribunal member in the beginning of hearing explained about the Complementary Protection Obligation but did not go very details about this clause .
The applicant told the member thatfrom a generation his family was associate with the BNP and because of his association his family suffered a lot and he escaped from Bangladesh because of fear from the Awami League member,s brutality His father was Vice President of Local Branch of BNP.
The applicant mentioned that his father and grandfather was beaten by the Awami League workers. The applicant claims he would satisfy the criterion for protection under the Complementary protection arrangements as there are substantial grounds to believe there is a real risk that would suffer significant harm on return Bangladesh. The applicant claims that the Tribunal blindly follow the decision of the Delegate's decision .
The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm .”
[Errors in the original.] [Emphasis in the original.]
Before the Court
This matter was initially set down for hearing on 26 August 2014. The applicant appeared in person. An interpreter in the Bengali language was present. Both parties had filed written submissions.
The grounds of the amended application were, and continue to be, difficult to understand. For example, does ground one assert a breach of s.424A of the Act because the Tribunal failed to give the applicant information pursuant to s.424A(1) of the Act, or, given the particulars, does it attempt to involve s.425 of the Act? Further, the applicant’s written submissions appeared to raise matters not immediately relevant to any of the three grounds.
The hearing was adjourned for the following reasons. First, when given the opportunity to make his submissions it was clear that the applicant had little, if any, idea of what was asserted in the grounds of the amended application, and the written submissions. He explained that these documents were drafted by an “Indian lawyer”. On its own, this would not have been sufficient reason to adjourn. However, in light of the other two reasons below, the adjournment allowed the applicant the opportunity to obtain some understanding of his grounds and submissions, or even to engage, in the applicant’s words, “a good lawyer”.
Second, the Court was concerned about the level of interpretation displayed by the interpreter who had been engaged for the purposes of the Court hearing. The interpreter confirmed that he was accredited to NAATI level 3. However, a number of features of his presentation were of concern. For example, the interpreter’s constant reference to the applicant as “he” when interpreting the applicant’s words, gave rise to the concern that the applicant’s actual words were not being interpreted. Further, the interpreter attempted to give explanations about the applicant’s submissions, rather than just interpreting the words used by the applicant. This was, in my view, sufficient reason to adjourn and obtain the services of another interpreter.
Third, the applicant’s second ground appeared to assert jurisdictional error on the part of the Tribunal because of interpretation difficulties at the Tribunal hearing. The Minister’s written submissions relied on Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 (“P119”) as to what was required to establish jurisdictional error on the basis of a failure to afford a fair hearing because of interpretation issues. The Minister’s submissions referred to, but did not explore, the further illumination provided by the Full Court in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 (“SZRMQ”) in relation to P119. An adjournment gave the Minister the opportunity to address this matter (see the Minister’s supplementary written submissions filed on 23 September 2014).
At the resumption of the hearing, the applicant again appeared in person. He was assisted by an interpreter in the Bengali language. He confirmed that he was content with the interpretation. No difficulties with the interpretation were otherwise apparent.
Despite the lengthy opportunity available to him, the applicant appeared to have done little to advance the understanding of his case. He stated that after the last hearing he had “gone back” to the “Indian lawyer” who did not “explain anything” to him. The “Indian lawyer” had then left Australia. He did not seek out any other legal advice.
When given the opportunity to address the Court about his grounds and written submissions the applicant said he had nothing to say other than that he did not receive a fair hearing before the Tribunal because of interpretation difficulties. The Minister had filed supplementary written submissions, since the time of the adjourned hearing date, and the Court was further assisted by oral submissions from the Minister’s lawyer.
Consideration
Before the Court the applicant made no reference to his written submissions. It must be said that the relevance of those submissions is difficult to understand. In essence, the submissions make a series of statements asserting legal error on the part of the Tribunal, but make no attempt to link these to the grounds of the amended application.
As the Minister submitted, correctly in my view, the submissions are, for the most part, a collection of recitations of legal tests and are formulaic, with no real attempt to show how the Tribunal fell into the jurisdictional errors implied by this recitation.
Paragraph 1 and a part of [2] recite background and the applicant’s biographical data. The remainder of [2] asserts that the applicant was denied a fair hearing before the Tribunal because of the interpretation at the hearing. This is dealt with at the consideration of ground two below.
Paragraph 3 asserts that the applicant relies “fully” on the grounds of the amended application, but no satisfactory attempt is made to explain those grounds.
Paragraph 4 asserts that the Tribunal failed to take into account relevant considerations. At best this is said to be because the Tribunal did not accept his claims relating to his political activities and membership of the BNP (see [5] of the applicant’s written submissions). In light of the Tribunal’s analysis and findings this is merely an attempt to engage the Court in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Paragraph 5 is simply a restatement of the same complaint.
At [6] the applicant asserts bias on the part of the delegate. This does not assist the applicant as the Court has no jurisdiction to review the delegate’s decision in circumstances where that decision was capable of review by the Tribunal, and was in fact reviewed (see s.474 of the Act).
Paragraph 7 again complains about the Tribunal hearing and some of the Tribunal’s findings said to arise from the hearing and in relation to the documents provided by the applicant to the Tribunal. This is also dealt with below at the consideration of ground two.
Paragraph 8 takes issue with what is said to be the Tribunal’s finding that all documents from Bangladesh are “fabricated”. The formulaic nature of the applicant’s submissions is illustrated here. The Tribunal made no finding that all the documents he provided were fabricated.
The Tribunal separately assessed each of the documents submitted by the applicant. At [19] (at CB 209), the Tribunal gave “little weight” to the certificates from the BNP provided by the applicant. However, this was not because of any finding of fabrication but rather the two certificates were so inconsistent with the applicant’s own evidence as to his grandfather’s and father’s claimed activities, the Tribunal gave them little weight.
Contrary to the applicant’s assertion in his submissions, the Tribunal found that the passport the applicant used to depart Bangladesh was not a false passport as the applicant himself had claimed ([30] at CB 212 and [32] at CB 213). While the Tribunal found that the birth certificate was not genuine, this was reasonably open to the Tribunal on what was before it.
Paragraphs 9 and 10 are meaningless unless understood as another attempt to engage the Court in impermissible merits review.
Paragraph 11 is a mere assertion that the Tribunal “made decision with a closed mind”. This can be linked to [6] of the applicant’s written submissions where the applicant asserts that the Tribunal ignored evidence. That is, the Tribunal chose not to address the applicant’s evidence because of its closed mind. The test for bias is well settled. An allegation of bias must be distinctly made and clearly proved (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] and [127]). There is no basis for this mere assertion on the evidence before the Court.
Ground one of the application asserts that the Tribunal failed to afford the applicant procedural fairness as required by s.424A of the Act because he was not given the opportunity to respond to “all adverse findings and inconsistencies”. The particulars imply that the Tribunal denied him the opportunity to do so at the hearing. The particulars direct attention to parts of 2T.
One, 2T at pages 4 and 5, where the Tribunal stated:
“I may also ask you to comment on information that I have from a range of independent sources about the situation in your country. After answering my questions you will have an opportunity to raise any additional matters that you consider important to your claims and after I've heard all of your evidence I will ask your advisor wishes to suggest to me any other matters I should ask you about or make any submissions.”
The complaint is that the Tribunal did not give him the opportunity to comment on this information.
Two, the second complaint in the particulars is that the Tribunal did not give him the opportunity at the hearing to comment on “All information it considers would be the reason or a part of reason, for affirming the decision that is under review” (emphasis in the original).
Three, the particulars refer to the Tribunal’s decision record at [45] and [47] (at CB 215). In effect, the complaint is that in making its decision to affirm the delegate’s decision, the Tribunal failed to give the applicant “relevant information”, and did not explain its relevance to the decision.
The applicant’s ground not only is not made out, it must also be said that it lacks any merit.
First, the Tribunal’s “subjective appraisals, its thought processes or determinations”, that is, relevantly its findings on inconsistencies in the applicant’s evidence, is not “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 476 – 477). This is a complete answer to the applicant’s ground as pleaded.
Second, nor do the particulars assist the applicant’s ground. Country information to which the Tribunal referred is, in any event, exempt from the obligation in s.424A(1) by virtue of s.424A(3)(a) of the Act. Further, information given by the applicant in writing for the purposes of his protection visa application, information he gave to the Tribunal including information at the Tribunal hearing, is also exempt because of s.424A(3)(ba) and (b) of the Act respectively.
Nor, as the Minister submitted, was the Tribunal obliged to give to the applicant for the purposes of s.424A(1) of the Act, information the applicant gave to the delegate at the interview. On what is before the Court the only evidence of what occurred at the interview with the delegate that was before the Tribunal was the report in the delegate’s decision record which had been given to the Tribunal by the applicant and, therefore, fell within the exception at s.424A(3)(b) of the Act (Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [16], Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240 at [74]).
Third, the transcript of the Tribunal hearing (both versions before the Court) reveals that the Tribunal did put to the applicant, orally at the hearing, particulars of what was said at the “Entry Interview” (different to the protection visa application interview with the delegate) and complied with all of the requirements s.424A(1) of the Act in doing so. Therefore, even if s.424A of the Act was engaged, the Tribunal properly discharged its obligation through the mechanism available at s.424AA of the Act (see [20] at CB 209 to [21] at CB 201, 1T pages 22 to 23 and 2T at pages 29 to 31).
The evidence before the Court (both transcripts of the Tribunal hearing) reveal that the applicant responded to the Tribunal’s concerns. Further, his representative provided written post hearing submissions specifically in response to the “information” provided by the Tribunal at the hearing pursuant to s.424AA of the Act (see CB 191 to CB 197).
To the extent that the applicant’s ground asserts that this information should have been put to him in writing, rather than only orally at the hearing, then s.424AA of the Act provides a discretion to the Tribunal to discharge any obligation under s.424A of the Act through the utilisation of, and proper compliance with, s.424AA of the Act, and was not required to put the information in writing to the applicant (s.424(2A) of the Act, SZNYL v Minister for Immigration and Citizenship [2010] FCA 1282; (2010) 119 ALD 512).
Ground two asserts that the Tribunal fell into jurisdictional error because the applicant was denied a fair hearing. There is no reference to s.425 of the Act, therefore the question arises whether the applicant’s ground seeks to assert a breach of procedural fairness at common law. In any event, this is a case to which s.422B of the Act applies given that the matter of a fair hearing before the Tribunal is a matter dealt with in Division 4 of Part 7 of the Act, namely s.425 of the Act (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).
While the exact error is difficult to discern from the particulars at ground two, it appears there are three complaints arising from different parts of the transcript.
First, the particulars take issue with the Tribunal’s statement:
“I have before me all the information you have provided to the Department of Immigration and provided to the tribunal. What I will be doing today is asking you a number of questions trying to get a clear picture of your circumstances as I possibly can…”
In considering the complaint and particulars (see [19] above) that follows, I have understood the word “verocity” to properly mean, to the extent that any meaning can be derived from the applicant’s complaint, as being “veracity”. Even with this reading the complaint is, with respect to the applicant’s “Indian Lawyer”, nonsensical. In essence, the complaint is that the Tribunal should not have pursued questioning that assessed the credibility of the applicant’s claims, but should have pursued questioning to “check” their veracity.
The subsequent reference to the applicant’s inability to express himself clearly, reveals that in the evidence before the Court, the complaint really is an attempt to claim that the Tribunal was unfair in finding that the applicant’s evidence to it was deficient and unsatisfactory in its inconsistencies, and his inability to satisfactorily explain these inconsistencies. In short, this complaint seeks impermissible merits review given that the Tribunal’s findings of fact, including its findings on credibility, were all reasonably open to it on what was before it.
The applicant’s attack on the Tribunal’s line of questioning does not succeed in revealing jurisdictional error. As the Minister submitted, the Tribunal is an inquisitorial body and is entitled to ask questions in the exploration of the applicant’s claims and seek to determine whether the claims could satisfy either of the criteria at s.36(2) of the Act for the grant of the visa. The Tribunal’s questions were essentially directed at obtaining a coherent account of the applicant’s claims. I cannot see that he was denied the opportunity to make his claims and explain them by the Tribunal’s “line” of questioning.
Second, the particulars assert that there were interpretation “difficulties” and a “communication gap” between the interpreter in the Bengali language and the applicant, and that the Tribunal knew of this. In this regard, the applicant refers to 2T at page 5:
“[Tribunal]: The interpreter will also let me know if he is having any trouble understanding you. Now, I want to confirm because I understand there were some difficulties during the preliminary discussions with the .. with the interpretation and communication, sorry, so I want to confirm that you are understanding the interpreter.”
A third, and related, part of the particulars asserts that the applicant during “the whole hearing” was unable to “express freely and fairly” and at “different stages…absolutely did not understand many legal and technical words”. The particulars draw attention to the following (2T pages 5 to 6):
“[Interpreter]: If you can say like this way, I understand.
[Tribunal]: What ... What do you mean by that?
[Interpreter]: If you say like this way then I can understand, but as you started first time it was difficult for me to understand.
[Tribunal]: When I was started or when the Hearing Officer started? Can you clarify with him, please?
[Interpreter]: What he said is that initially with the Hearing Officer there was a difficulty to understand but now he is happy. So he now asking me if you don't understand these things ..... (unclear)
[Female voice]: (unclear) .. not happy?
[Tribunal]: I ... I'll ask the question I think .... I .. I ... I ... We'll clarify this because I've ... clearly we're not going to continue until I'm satisfied that you are understanding the interpreter so I just want to make sure, do you .. are .. can you understand the interpreter?
[Interpreter] He said that initially I had a difficulty, now I understand. So, now if you don't understand, what can I do?
[Tribunal]: Well .. Who ... I'd ... I'm ... I'm .. I'm clear ... I do not know who doesn't understand. All I want to know is ... do you ... can you understand the interpreter so we are able to proceed with today's hearing because it's important ... you need to know ... you need to be able to understand the interpreter. So, I just need you to tell me if you understand him or not.
[Applicant] (Unclear) ... talk English?
[Tribunal]: Maybe ... I'm happy if you want to explain in English, it might be easier. Go ahead.
[Applicant]: (not clear) ... I a little bit understand.
[Ms Kamada]: Okay. Okay. So you ... Do you want to tell the Member?
[Tribunal]: Tell me, look at me. Tell me. You can talk to me directly. I can understand you. Go ahead.
[Applicant]: So, first .. Yeah .. So first time uhh ... I'm no understand the interpreter talk .... so now I have a ... I have a understand his talk.”
In essence, therefore, the particulars to ground two also seek to complain that the applicant was denied a fair hearing, in context, pursuant to s.425 of the Act, because of “difficulties” with the level of interpretation at the hearing. This is a complaint made, but not explained in the applicant’s written submissions to the Court.
In his submission the Minister referred to SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 (“SZOYU”) as a relevant source of the principles to be applied in consideration of the applicant’s complaint. In SZOYU at [29] ‑ [32], Justice Jacobson stated:
“[29] The seminal authority on the standard of interpretation is the decision of Kenny J in Perera. Although that case was decided before s 425 of the Act was amended, it has been accepted that what her Honour said in Perera is equally applicable to s 425 in its current form: WACO at [64].
[30] The relevant principles may be stated briefly. The standard of interpretation is not one of perfection. It need not be at the very highest standard of a first-flight interpreter but it must express in one language, as accurately as the language and circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [26] to [29]; WACO at [66].
[31] Importantly, not every departure from the standard of interpretation denies an applicant the opportunity to obtain a hearing under s 425 so as to give rise to jurisdictional error. The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision: Perera at [38], [45]; Applicant P 119/2002 at [16] to [18]; WACO at [69]; see also SZJBD v Minister for Immigration and Citizenship (2009) 179 109 a [72] to [73] (Buchanan J).
[32] Whether any inadequacy in translation has been such as to deprive an applicant of the opportunity to have a hearing in accordance with s 425 involves a qualitative assessment of the conduct of the hearing before the tribunal as a whole: SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] (Jagot J).”
The Minister submitted that to succeed in the assertion of a denial of a fair and just hearing held pursuant to an invitation to attend the hearing made under s.425 of the Act, because of inadequate interpreting, the applicant must show ([4] of the Minister’s supplementary written submissions):
“… that he was denied a fair and just hearing such that the Tribunal failed to comply with section 425 of the Act by reason of inadequate translation services, the Applicant must establish that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the Applicant was effectively prevented from giving evidence at the Tribunal ; or
(b) the errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the Applicant.”
A number of matters require immediate note. First, as set out above, there are two transcripts of the Tribunal hearing in evidence before the Court. The affidavit annexing the applicant’s “version” says nothing about who did the transcription other than a reference to “Karnafuli International”. There is nothing to explain the usual business of this organisation or its capacity to provide transcripts.
The applicant states in his affidavit that to the best of his knowledge it was “translated by an accredited translator of NAATI”. There is nothing to say how the applicant came to this belief. The affidavit of Ms Taylor, to which the Minister’s “version” of the transcript is annexed, provides evidence as to how the transcript was produced.
In any event, both versions are in evidence, however there is one obvious difference between the two versions. The applicant’s version contains a large number of non-lexical utterances (“umm”, “uh”) which do not appear in the Minister’s version.
I did consider whether these “pauses” assist the applicant in his complaint, and whether, taken as a whole, they go to indicate some inadequacy in interpretation. However, in context I find that these are no more than representative of usual pauses for thought often heard in speech, and in particular, in contexts where accuracy of expression is required to convey detail. That is, the pauses are not indicative of some inadequacy of interpretation but representative of discourse arising from contexts such as Tribunal, or for that matter Court, hearings.
Second, there are no other significant differences between the two versions, and certainly not in relation to any matters of substance. Nor is there anything, specifically, in relation to the parts of the transcript referred to by the applicant to support the proposition of inadequate interpretation.
The impugned parts of the transcript relied on by the applicant (with reference to 2T) are extracted at [59] and [60] above. What is missing from the applicant’s particulars which immediately continues from that part he has extracted in the particulars to the ground, is the following (2T page 6):
“Okay, all right. And I'll just check with you Ms. Kamada [the registered migration agent], you're happy to continue the hearing with this interpreter? Yep. I just wanted to clarify the situation because I had been informed that there were some difficulties with the preliminaries so that's why I went ahead with the hearing introduction just to see what was happening and it seemed like everyone was understanding each other so ... I just wanted to confirm that. Okay? Alright. Well I'll. .. I just want to uhhm .. suggest something to you and I think we both need to do this. We need to speak in short sentences, stopping frequently so that the interpreter doesn't have to memorize too much. Okay?”
This reveals that at the beginning of the hearing the Tribunal was concerned to ensure that the applicant understood the interpreter given that he had said there was some unidentified “difficulty” in discussion with a Tribunal officer prior to the hearing with the Tribunal member.
The Tribunal was plainly focussed on the question of whether the applicant was having difficulty with the interpreter. The applicant’s selective extracts from the transcript omit what immediately follows in his own version of the transcript (2T at page 6), that indicated he was “happy” to continue the hearing with the interpreter. Nor is there any other evidence of any complaint with the interpretation by the applicant, or his representative who was present at the hearing.
Further, as set out above, following the hearing, the applicant’s representative, who was a solicitor and a registered migration agent (CB 197.5), made submissions with particular reference to what had occurred at the hearing (CB 191 to CB 197). The submissions addressed the matter of the applicant’s credibility which arose at the hearing, the applicant’s failure to mention at an earlier time claims made at the hearing concerning his father’s and grandfather’s involvement with the BNP, his delay in applying for protection and providing “other information”, the applicant’s passport and his claimed membership of a particular social group. There is nothing in those submissions to even indicate that the applicant had any difficulty with the interpretation or was prevented from giving his evidence and explanations.
Critically, there is nothing in the transcript of the hearing as a whole to say that he was effectively prevented from giving his evidence at the hearing. Nor, importantly, has the applicant identified any other part of the hearing where he was prevented from giving his evidence.
The transcript does reveal that there was some “confusion” at the beginning of the hearing (2T page 8 to page 9):
[Tribunal]: Can you tell me uhm .. when did you depart Bangladesh for Malaysia? Do you understand what he is saying?
[Interpreter]: Sorry?
[Tribunal]: Can you understand what he is saying?
[Interpreter]: Ma'am, I understood but it doesnt make--
[Tribunal]: Just tell me what he says. That's fine…”
In context, when regard is had to what precedes this extract (see the reference to “Malaysia” at 2T page 7.8) and what immediately follows (at 2T page 9.3), the interpreter’s difficulty was with the applicant’s incoherent statements, rather than any difficulty with interpretation. I agree with the Minister that it is not the task of the interpreter to make comprehensible that which is incoherent.
The opportunity for an applicant to give evidence is of primary importance (SZRMQ at [45] per Flick J). The Tribunal’s obligation to give the applicant a meaningful opportunity to give evidence does not include any requirement to overlook “deficiencies” in the applicant’s own evidence. In the current case, the Tribunal took reasonable steps to ensure that an adequate level of interpretation was provided, and that the applicant was given a fair hearing. In this light, the applicant’s complaints in his written submissions are an attempt now to explain inadequacies in his own evidence, rather than showing he was denied a fair or meaningful opportunity to give his evidence. In all, ground two is not made out.
Ground three asserts that the Tribunal did not consider the applicant’s claims under the complementary protection criterion.
This complaint is baseless. The evidence before the Court reveals that the Tribunal had specific regard to this criterion and directed its attention to the applicant’s factual claims to protection. The fact that the Tribunal relied on findings of fact expressed earlier in its decision does not, of itself, reveal jurisdictional error (see [37] at CB 214 to [43] at CB 215, SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55] – [56] per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125).
Nor do the applicant’s particulars to the ground assist him. The first particular merely repeats claims made by the applicant which the Tribunal addressed. The second particular makes reference to a real risk of “persecution” “test” which is relevant to the Refugee Convention criterion and not complementary protection. Ground three is not made out.
Conclusion
In all, there is nothing in the submissions to indicate jurisdictional error in the Tribunal’s decision. Nor do the grounds reveal any such error. The application should be dismissed. I will make an order accordingly.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 11 August 2016
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