SZUEW v Minister for Immigration
[2016] FCCA 378
•24 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUEW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 378 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether errors in the interpreting of the first applicant’s oral submissions denied the applicants a fair hearing – whether the Tribunal’s adverse credibility findings were severable – interpreting errors hindered applicants’ ability to put case to Tribunal – jurisdictional error identified – application allowed – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.45, 414, 422B, 425, 476 |
| SZRQM v Minister for Immigration and Border Protection [2013] FCAFC 142 SZSEI v Minister for Immigration and Border Protection [2014] FCA 45 WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 SZOBN v Minister for Immigration and Citizenship [2010] FCA 1280 |
| First Applicant: | SZUEW |
| Second Applicant: | SZUEX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1024 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 24 February 2016 |
| Date of Last Submission: | 24 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Counsel for the First Respondent: | Mr J Knackstredt |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any amended process in this regard is dispensed with.
A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision of 19 March 2014.
A writ in the nature of mandamus is issued requiring the second respondent to determine the applicant’s application according to law.
The first respondent pay the costs of the applicant fixed in the amount of $9000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1024 of 2014
| SZUEW |
First Applicant
| SZUEX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 19 March 2014 affirming a decision of the delegate not to grant the applicants’ Protection (Class XA) visas. The applicants were found to be citizens of India and their claims were assessed against that country. The first applicant alleged fear from Hindu religious groups in India and also by reason of his proselytising of Christianity. The applicants arrived in Australia on 11 September 2012 on tourist visas and on 26 September 2012 made application for protection. The second applicant’s application did not advance claims of her own.
Before the delegate, adverse credibility findings were made in relation to the first applicant’s claims. The process of the Tribunal was one in which the applicants were invited to attend a hearing on 24 September 2013 pursuant to a letter dated 8 August 2013. The response to hearing, identified the need for an interpreter in the language of Malayalam. The Tribunal made adverse credibility findings in relation to the first applicant and gave seven detailed reasons in support of the adverse credibility finding and ultimately found that the Tribunal did not accept that the applicant had any reason to fear harm in India and considered the applicant had fabricated his claims for protection.
The Tribunal accepted that the applicants were Christians, that they attended Christian church when they lived in India and accepted that they would attend church upon return to India. The Tribunal found that the second applicant had never been involved in preaching or proselytising, that she had not suffered past harms and threats in India, nor that she had to go to Dubai or Australia to be safe.
The first applicant spent a substantial period of time living in the UAE. After an incident in 2011 involving a woman who allegedly killed herself and to whom the applicant alleged he had preached and then received threats from others, the applicant nevertheless returned to India from the UAE on two further occasions. The applicants have left their children in India. The hearing process was one in which the Tribunal explained to the applicants the process that would be undertaken including the fact that “If you don’t understand something please ask me to explain it,” and informed the applicant that the Tribunal member will talk to the applicant and ask the applicant to talk to the Tribunal member and not the interpreter. The Tribunal member then asked, “So are you able to understand the interpreter without difficulty,” and the applicant responded, “Yes, I can understand.”
The Tribunal identified that prior to the hearing the applicant had provided some information to the Tribunal, including raising a problem with the earlier interpreter and requesting that there be a different interpreter from the one who attended the applicant before the delegate. It was alleged that the interpreter before the delegate had added details the applicant had not mentioned. The applicant also contended that he had tried to explain in detail some concerns to the delegate. At the hearing before the Tribunal both applicants gave their evidence with the assistance of an interpreter in the Malayan and English languages.
The first applicant, the Tribunal noted, could read and write English well but was not particularly fluent in speaking and that he also spoke some Hindi. The second applicant, the Tribunal noted, only speaks Malayalam and a small amount of English and Hindi. In the course of the hearing before the Tribunal, the Tribunal member explored, with the first applicant, his departures from India, and time spent in the UAE, and the activities that he engaged in when he returned to India. Of material significance in the present case is that in the course of that process the Tribunal sought to explore with the first applicant to understand what proselytising the first applicant would engage in and, in particular, the content of what he would say.
That topic was addressed twice by the Tribunal member. On each occasion, there were material interpreting errors. Those interpreting errors were two of 51 errors identified in the applicant’s amended application for relief. The materiality of the two errors in the present case was that the applicant provided clear and meaningful content as to the topic upon which he would preach.
In the first error made by the interpreter in the transcript, the content of what the first applicant explained in relation to his preaching was not correctly interpreted and the detail of the applicant’s responsive answer was lost. On the second occasion, where the first applicant again explained what it was that he would saying in his preaching activity, the interpreter was unable to understand the answer. The transcript noted that the interpreter could not understand and did not know exactly all the English words that the first applicant had used. The words that the first applicant had used provided content in relation to the substance of what it was the first applicant alleged he would engage in in relation to proselytising.
In the present case, where one of the applicants claimed fears related to his proselytising in relation to Christianity, I find that the interpreting errors were material and meant that the first applicant did not have a real and fair opportunity to put what he wanted to put and to participate in the hearing in a way from which it can be concluded that the hearing was fair and that administrative justice was done.
The grounds of the application are as follows:
Ground 1: Jurisdictional Error
The translations and interpretations provided by the Tribunal translator were incomplete, inaccurate and erroneous, which in effect, deprived the Applicants of a fair hearing and the ability to give evidence and present arguments in violation of ss 414 and 425 of the Migration Act 1958 (Cth).
Particulars
(a) Credibility of the First Applicant
Due to the non-translations, mistranslations and errors by the translator, the Tribunal found that the applicant was not a credible witness in relation to key aspects of his claims. The Tribunal has considered that the applicant gave vague, evasive, not credible and inconsistent evidence about numerous aspects central to his claim; on a number of occasions he did not directly answer questions from the Tribunal but repeated matters from his statement in a manner that suggested that his claims were rehearsed and he found it difficult to move away from the script; and that he and his wife gave inconsistent evidence.
(b) The Subjection of Harm
Due to mistranslations, non-translations and errors of the translator, the Tribunal found at [31], the applicant did not provide an answer to this question ... undermines his claims that he had suffered harm or attempt on his life.
(c) The Motorbike Incident
Due to mistranslations, non-translations and errors of he translator, the Tribunal found at [32] with regard to the motorbike incident, that the first applicant's response to be inconsistent with both his claimed reasons for initially returning to India and his claim that these people had just tried to injure not only himself, but also his wife and children, by knocking over the motorbike on which they were all travelling.
The Tribunal considered that these inconsistencies undermined his claims that he had suffered harm or attempts on his life in India or that he feared suffering harm in India or that anyone wanted to harm him or his family members.
(d) The Second Return to India
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [32], the response by the applicants to be unpersuasive and found that the applicants gave very different evidence about where the applicant stayed when he returned to India, which undermined their credibility.
(e) Hospitalisation of the First Applicant
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [35], further inconsistent evidence about when the applicant was hospitalised for 7 days. The Tribunal considered that the applicants' inconsistent evidence as to when the incident occurred, and the reason why it occurred, undermines the claim that it actually did occur.
(f) The Beating by 4-5 men
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [37], that the applicant's concern with his ability to travel at the expense of seeking protection for himself and his family at the hands of extremist, dangerous Hindus who are prepared to attack him with weapons and kill him, and possibly harm his wife and children, was not credible.
(g) The Word of God
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [38] the applicant's evidence about how he would spread the word of God was vague ... The Tribunal considers that the applicant's inability to tell the Tribunal how he spread the Word undermines his claim that he did so.
(h) Fears of Harm upon returning to India
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [39] the Tribunal considered that the applicant gave vague and evasive evidence about who he feared would harm him upon return to India.
(i) Injuries Suffered
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [ 40] the applicant was unable to provide the Tribunal with any detailed information with his injuries when asked at hearing.
(j) Inconsistent or not credible evidence
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [41] the applicant often did not answer the Tribunal's questions when asking about matters outside his statement (or his evidence at interview as recorded in the decision record and his second statement), or he provided inconsistent or not credible evidence when doing so.
(k) Findings of fact in relation to the first applicant's specific claims
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [45], on the basis of the adverse credibility finding the Tribunal does not accept that the applicant's various claims about what will happen to him when he returns to India are true.
On the basis of the adverse credibility finding, the Tribunal did not accept at [47] that they have ever been involved in preaching Christianity or providing funds to prayer groups as claimed.
(l) The Wife - The Second Applicant
Due to mistranslations, non-translations and errors by the translator, the Tribunal found at [49], the Tribunal found that the wife's evidence conflicted with her husband's evidence concerning what had happened to him. The Tribunal was not satisfied, on the evidence before it, that the wife has ever been involved in preaching or proselytising, or that she suffered past harm or threats in India, nor that she had to go to Dubai or Australia to be safe.
(m) General Claim in relation to Christianity
Due to mistranslations, non-translations and errors by the translator,, the Tribunal found at [50] the applicants were not involved in attempted conversion of Hindus to Christianity or any preaching or proselytising in India.
(n) Mistranslations, Non-Translations and Errors by the Translator
Exhibited and marked JFPF-1 to the affidavit by Jackson-Fernandez Phillip Fernandez, sworn 12 June 2014 is a “Report of Translation Errors in RRT Case Number 1302849”, which details various translating errors. In particular:
(i) Religious Upbringing (Transcript Page 17 of 61)
Tribunal: - So just tell me, when you were growing up as a Christian, what did you do, did you attend any activities, or?
Main Applicant:-They used to teach about Christianity, helping poor people.
Interpreter: - Yeah, I used to, we got to study about Christianity and we used to help the poor people.
(ii) Family Background (Transcript Page 18 of 61)
Tribunal:-So just give me a picture
Main Applicant:-I was born in Christian family, 4th and 5th standard I was an altar boy.
Interpreter:-Yeah, I was very young and I was involved with a Christian group from the beginning.
(iii) Church Participation (Transcript Page 18 of 61)
Tribunal:-You'd go to church every day, with your family?
Main Applicant:-Yes, I used to go with my family; I was an altar boy in that time. There is a missionary of charity of mother Theresa.
Interpreter:-There is a special boy; I was a special boy in the church. There is a statue of mother Theresa there. It is a charity organization.
(iv) Charity Work (Transcript Page 18 of 61)
Tribunal:- No I understand that, I'm just trying to understand what you did and you jumped from going to church to a charity organization and I'm not understanding.
Main applicant:-I went to church also; there was a missionaries of charity also. There is a [SB], looking after the sick people who do not know anyone to look after, through that sector I come up.
Interpreter:-I was there as a child, charity organization, as well as helping people, poor people are coming there, sick people are coming there and the church is helping them as well.
(v) Altar Boy (Transcript Page 18 of 61)
Tribunal:-Sorry, I am interested in your activities. At the moment I know that you would go to church every day when you were growing up and you were a special boy, I do not know what that means, can you explain that to me?
Main applicant:-I was an altar boy who helping in all the church activities.
Interpreter:-I used to help in the church what is happening. Just like helper in the church.
(vi) Attendance at Church (Transcript Page 21 of 61)
Tribunal:-Right, okay.
Main applicant:-First Sunday we go to church to attend Holy mass in Malayalam language.
Interpreter:-And first Sunday as well.
Tribunal:-Okay so you attend church the first Sunday of the month, so once a month.
Main applicant:-First Sunday of the month we are going to attend holy mass in Malayalam language, the other three weeks we are attending holy mass in English language at Auburn Church.
Interpreter:-That is not English Sunday, however our calendar, we have got a calendar, Malayalam calendar; we have got another calendar month.
(vii) Church Activities (Transcript Page 22 of 61)
Tribunal: -Any other activities?
Main Applicant:-Our group is called [MM]. We are helping poor and sick people financially.
Interpreter: - We are collecting some money and sending back to India for the poor people as well. As a charity ... just a charity.
(viii)Proselytism (Transcript Page 24 of 61)
Tribunal:-So you spread the word about ... the group spreads the word about Christianity yeah?
Main applicant:-We used to preach about Christianity; especially we will talk about holy sacraments which are Baptism, Eucharist, Reconciliation and confirmation.
Interpreter:-Yes. What we believe, regarding everything, like all the “Kubana”, this one that one. Kubana means. That is all Malayalam words. Just like about Christianity.
(ix)Preaching Christianity in India (Transcript Page 24 of 61)
Tribunal:-Okay, so what did you actually start doing after two or three weeks.
Main applicant:-our services located in [X]. This is a Hindu populated area. BJP and Vishwa Hindu Parishath are very active in this suburb.
Interpreter:-So mainly this [Y], that is a place, the majority is Hindus there.
(x) Prayer Group (Transcript Page 27 of 61)
Tribunal:-Okay, alright, and how long had they been doing this?
Main Applicant: - That means, they were doing it even before I went there. That prayer group was functioning there for some years.
Interpreter:- They keep on doing so many years but I....
(xi) Religious Knowledge (Page 26 of 61)
Tribunal:-I have open the door and what do you say to me?
Main applicant: - we usually tell them that we came to talk about the Word of God. and we tell them about Gospel.
Interpreter:-We tell them that we came to hear..We came here to say about God.
Tribunal:-Okay, so what do you want to tell me about God?
Main applicant: - I explain to them about Baptism, Holy Eucharist, Reconciliation, Confirmation etc.
Interpreter:-So, I explain about ... .like .. .I cannot understand . .! do not know exactly all. ..
(xii) Hindu Religion (Transcript Page 28 of 61)
Tribunal:-What do Hindus believe?
Main applicant: - that is reconciliation is to confess to god all the sins we have done against Him. God alone has ............. '..
Interpreter:-Whatever curse, or whatever sins we are doing, we are just telling the God that we are done so and so and so
(xiii) Reconciliation (Transcript Page 28 of 61)
Tribunal:-And what do you say?
Main applicant: - about reconciliation: if we have done any sin, there is only one God who can forgive us. If we confess it, we will.............. .
Interpreter:-So if you do any mistakes, only Jesus can pardon us. We tell about Jesus what he does.
(xiv) The names of attackers (Transcript Page 32 of 61)
Tribunal:-Okay, what are their names?
Main applicant: I don't know the names of those who attacked. they were the main people of them. (leaders).
Interpreter:-I do not know their names.
(xv) The Suicide of the Widow (Transcript Page 34 of 61)
Tribunal:-Okay, she's poor and you had go and pray, with her or for her or what?
Main applicant: - we go there and pray with them.
Interpreter: - We go there and pray for her
(xvi) Injuries (Transcript Page 39 of 61)
Tribunal:-Okay what were your injuries?
Main applicant: - there were no wounds. They beated and 'crushed' me.
Interpreter:-No, there was no injury like, but inside there are ..
Tribunal:-What were the inside damages?
Main applicant:-since i was totally crushed and there were no external injuries, I went to an Ayurveda hospital.
Interpreter: - I went to the hospital and stayed there.
Tribunal:-No, no, no, sorry my question was, what was the damage, the internal damage? ·
Main applicant:-here and all- my legs, thighs etc. it was not with weapons. They just crushed me with their fisticuffs.
Interpreter:-Because they hit me I got some internal injuries, I do not know exactly what was.
Tribunal:-You do not know what internal injuries you suffered?
Main applicant: - what is it? What is it?
Interpreter:-I do not know exactly
Tribunal: - Tell something.
Main applicant: - that is they crushed me with their fist cuffs. Completely crushed.
Interpreter:-Because they hit me here and here everywhere so.
Tribunal:-You do not know what internal...you don't know what you suffered is that right?
Main applicant: - I don't know the name of the illness. But they made total internal injuries.
Interpreter: - I do not know the name of the injury, but internally I was hurt basically.
Tribunal:- Just tell me a little bit more about the injuries, how you were harmed, tell me a little bit more about it.
Main Applicant: - oh, the beating, ok. When I was at their house, some people (Hindus) came and shouted at me like- why you are doing these things? Haven't we warned you not to do these? Etc. one among them pushed me from back and pressed me against the wall and kicked me ........... .
Interpreter:-So they hold me in the neck, and they put me near the wall and hit me that. And also hit me .. Kicked me also in the leg.
Tribunal:-Okay, what was the treatment?
Main applicant: - my full body was aching. There was no wound or bruises but I was totally crushed. There were swellings on my body. Moreover I was having back pain as my back bone was kicked many times.
Interpreter: - I was in back pain and everything so I had treatment.
(xvii) Beaten when going to Prayer (Transcript Page 41 of 61)
Tribunal:-Why?
Main Applicant: - I was beaten when I went there for prayer. Since then I haven't gone there. But I continued doing my charity works. When we do something good for the society, it is common to get attacks like this.
Interpreter:-I did not go afterwards that time, but I want to continue that activities.
Tribunal:-Okay you did not answer my question. I said why were you not scared?
Main applicant:-when we are doing these things, there is no need to get scared. I was also doing missionary work. so there is no need to get scared.
Interpreter:-You do this kind of things there is no fear.
Tribunal:-Can you explain that to me?
Main applicant: - I was born and brought up in a Christian culture. I know that this will happen to all those who are doing the missionary work.
Interpreter:-I am doing these kinds of things and this kind of thing, people are doing this kind of things, this kind of things happens.
(xviii) Why did the applicant not stay and preach in India (Transcript Page 43 of 61)
Tribunal:-Yeah, why did not you stay in India, if this is what happens if you have to preach, why did not you stay and preach in India.
Main applicant:-ok, but at that time, they just threatened me and gave one or two hits. Hats all. So I continued in India. But later they tried to kill me. Hence I fled from my country and sought protection here as it was a threaten to my life.
Interpreter: - So they hit me, one time, that is fine, but other times they try to kill me.
(xix) The Rape of the Widow (Transcript Page 43 of 61)
Tribunal: - Who spread the news?
Main applicant:-those were the Hindus. They were the ones who threatened me, when I went there for prayer.
Interpreter: - Hindus. So when I went for prayer group they told that I was responsible for this.
Tribunal: - What do you mean?
Main applicant: - the people who spread the rumour that I was the sole responsible were the ones who threatened me when I went for prayer.
Interpreter:-So when I go about preaching, we go for preaching in that area Tribunal:-They said to you, you are responsible.
Main applicant:-they spread the rumour there.
Interpreter:-Yeah they spread the news that I am responsible for this.
Tribunal:-Then how do you know they spread the news?
Main applicant: - the neighborhood people told. Once I went to meet her. then the people of the surrounding area told me.
Interpreter:-So one day I went and saw her and she told me that they spread the news that you are responsible.
Tribunal:-okay that was not my question. When did she tell you they spread the news you were responsible?
Main applicant: - she did not tell me anything. I heard it from outside that she was pregnant and I was the one who is blamed for it. Then I went and asked her what the real situation was. But she did not tell me anything.
Interpreter: - So I came to know through public that I was responsible for this then I went and asked her and she did not tell me who is responsible.
Tribunal:-Okay, look I am concerned that you are saying there is a rumor that you have made her pregnant and she has not even pregnant
Main applicant: - she was pregnant. What I heard as the rumour was that I was responsible for her pregnancy.
Interpreter:-she was pregnant, that is the rumor I heard.
(xx) People came to the first applicants house to beat him up (Transcript Page 44 of 61)
Tribunal:-I think that what you say next is that some people came to your house to beat you up, is that right?
Main applicant:-she died on 19th. The Hindus threatened her before her death that if she tells anyone they are the real culprits, then they will kill her and her child. This she told my wife 3 or 4 days before her death.
Interpreter: - 19th she died. She told my wife that if she discloses the right person he will be killed. You and your kids will be got and your children will be killed.
Tribunal: - Okay, so, why are they coming now to your house, this rumor has been going on for ages that you have made her pregnant.
Main applicant:-there is a reason for it. This widow had told my wife, she was brutally raped by 3 men and that your husband is not at all responsible for it. After telling this to my wife, within 3 or 4 days, she died.
Interpreter: - So she told my wife that three people came and raped me and killed me. Your husband is not responsible. ·
(xxi) Confusion around the rumour (Transcript Page 45 of 61)
Tribunal:-Okay, you are saying they came to your house on the 20th of February but there has been a rumor ever since you have arrived that she's pregnant and by you. Now you have say they are looking for and excuse to, you know, cease your Christian preaching. They've had no hesitation in beating you up before for being at her house, okay, and yet this rumours going on for months, for a month's or two, a month and a half before they came to your house. Why do you think that is?
Main applicant: - there is a reason for it. I didn't do anything. They were the one who did it. Hence if a rumour like this spreads, then our activities over that place will gradually decrease and will stop later. This was their calculation.
Interpreter: - There is no reason like that, because they know that I am not the person who has done· it, the other people have done it.
Tribunal: - So why come to your house when she's dead?
Main applicant: - that why they came after the death. They wanted to stop our activities completely. Moreover if I was accused ........... .
Interpreter:-They want to stop my ..... our activities so if they put the blame on me, so it will be stopped.
(xxii) The Return to India (Transcript Page 46 of 61)
Tribunal: - Okay, what was that?
Main applicant:-after her death I moved out for 10 days. But my wife was not having any peace of mind. My kids were also frightened. Fearing that something will happen to them, I came back.
Interpreter:-I was afraid of my wife and children, they are also afraid so they want to see me.
Tribunal:-Two weeks after people are trying to kill you, you came back to India.
Main applicant: - my wife was utterly tensed. I was also tensed, fearing that something will happen to her. Hence I could not spend a minute peacefully in Dubai.
Interpreter: - I was afraid of my wife and ... my wife, something happen to her.
(xxiii) Left Wife and Children in India (Transcript Page 48 of 61)
Tribunal: - Right so they try to kill and your wife and kids, you leave and you leave your wife and kids.
Main applicant:-I couldn't do any job in Dubai. My full body was paining- here and there. Hence I came for a 35 day ayurveda treatment.
Interpreter: - There intention was to kill me I believe. I came for treatment because I cannot work in Dubai because I have pain and back pain and everything so I came for treatment for 35 days.
(xxiv) Suicide of the Widow (Transcript Page 50 of 61)
Tribunal:- Do you know when she died?
Second applicant: - after this issue, after my husband got hit, Lakshmi died after several days.
Interpreter: After my husband got some hitting after died ...
(xxv) Hindus in [X] (Transcript Page 53 of 61)
Tribunal:-What Hindus?
Second applicant: - the BJP in [X].
Interpreter: - [Y]
(xxvi) Return to India Twice (Transcript Page 57 of 61)
Tribunal:-Look, another concern I have is you actually returned to India twice, or more according to your wife, you returned to India after you say these people want to kill you and I don't understand that.
Main Applicant:- they came to kill me. But I escaped to Tamil Nadu. Then I came back. I came fearing whether they will threaten or attack my family. i did not had any peace of mind. so ...
Interpreter: - So they wanted to kill me, that is why they came but I escaped to Tamilnadu because I want to see how they are doing I came back.
Counsel for the applicant took the Court to ss.414, 422B and 425:
414 Tribunal to review Part 7‑reviewable decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
…
422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
…
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The principles in relation to interpreting errors giving rise to jurisdictional error were not the subject of serious contest, and have been usefully summarised in SZRQM v Minister for Immigration and Border Protection [2013] FCAFC 142 at [23] and [24], and in SZSEI v Minister for Immigration and Border Protection [2014] FCA 45 at [71] to [81].
Insofar as relevant, I prefer the principles identified in analysis of Griffiths J as to the care with which the decision of the Full Court in WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 should be treated. I have also taken into account what was said by North J in SZOBN v Minister for Immigration and Citizenship [2010] FCA 1280 at [27].
The question raised by the applicant’s application is in substance whether or not the applicants had a fair hearing. In that regard, it is critical to take into account the process in which the Tribunal engaged, as well as the Tribunal’s reasoning. The process in the hearing clearly focused, amongst other things, upon the applicant’s explanation of his proselytising. In the structure of the Tribunal’s reasons, the adverse credibility findings were not expressed in a manner that was severable, and a significant part of those adverse credibility findings relevantly referred to the applicant’s evidence, that he would spread the faith.
The Tribunal said that if the applicant had been involved in spreading the word of God to Hindus, then this would have required more persuasive discussions than the applicant’s descriptions of how he would spread the word. The errors in the interpreting, which are common ground between the parties, clearly included errors on two occasions in relation to how the applicant would spread the word. Those errors were capable of revealing a persuasive discussion as to how the applicants spread the word.
The Tribunal engaged in a contrast with the applicant’s ability to address other matters, and concluded in relation to the fourth adverse findings on credit that the applicant’s inability to tell the Tribunal how he spread the word undermined his claim that he did so. It is clear that the applicant’s ability to tell the Tribunal how he spread the word in the present case was affected by the two material interpreting errors that occurred in the present case.
It was submitted on behalf of the first respondent that the adverse finding by the Tribunal, that the applicants did not have a well-founded fear of persecution, could be supported on the adverse credibility findings relating to the first applicant’s return on two occasions to India. On a fair reading of the Tribunal’s decision, I do not accept that the adverse credibility findings were severable. The language used by the Tribunal is entirely consistent with the credibility findings being of cumulative significance in relation to the adverse finding by the Tribunal as to whether the applicants had a well-founded fear of persecution.
It was submitted on behalf of the first respondent that because of the return to India, the interpreting errors in the present case are ones where the Court could be satisfied be satisfied, that the errors could have had no impact on the outcome of the applicant’s application. Whilst I accept that there were matters upon which adverse credibility findings were open to the Tribunal, it is the structure and reasoning process of the particular Tribunal that is material in determining whether or not there has been a fair hearing, as required within s.425.
As indicated earlier, it is not the reasons alone that are determinative in this question, but it includes an analysis of the process. That process includes the conduct of the hearing and evaluation of matters of fact and degree. In the present case, the proselytising of fear was one of the two primary fears propounded by the first applicant.
In light of the finding of the Tribunal as to the applicant’s being questioned, and the finding that they may attend churches on a regular basis in the future, I am not satisfied that the interpreting errors in relation to the applicants’ spreading of the Word could not have had an impact on the reasoning process of the Tribunal in the present case.
The Court has given careful attention to the transcript as a whole, and I should note that counsel for the applicant handed up an aide‑mémoire that treated the errors in a different fashion to those identified in the application, and rather tried to link them to the adverse credibility findings in respect of the seven different adverse credibility findings made by the Tribunal.
The difficulty with the applicant’s aide‑mémoire was that it took out of context the actual process in which the hearing occurred and, on occasions, identified the wrong page of the transcript. Nonetheless, the interpreting errors in relation to the spreading of the Word of God are ones, in the circumstances of the present case, I find that the applicant was not able to put to the Tribunal member what he wanted to put in relation to his proselytising and that the interpreting errors were material in this case. I have also taken into account the other interpreting errors in coming to the finding that the applicants did not have a fair hearing because of the interpreting errors as to the explanation of the first applicant’s proselytising.
There was no submission advanced on behalf of the first respondent that the applicants should be in some way differentiated between and in relation to the want of a fair hearing in respect of the first applicant. I am satisfied that the Tribunal failed to comply with s.425 of the Migration Act 1958 in the present case because of the material interpreting errors made by the interpreter.
I am satisfied that this is an appropriate case in which to issue Constitutional writs in respect of the jurisdictional errors.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 25 February 2016
4
2