SZUMY v Minister for Immigration
[2015] FCCA 1482
•3 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUMY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1482 |
| Catchwords: ADMINISTRATIVE LAW – Application for an extension of time to bring proceeding – delay in bringing proceedings not an unwarrantable delay – whether the Tribunal fell into jurisdictional error by failing to consider a claim and by failing to give the applicant the opportunity to address adverse information – whether there was a critical error in interpretation by the interpreter at the Tribunal hearing leading to a frustration of the right to a hearing under s.425 of the Migration Act 1958 (“Act”) – Tribunal’s decision affected by jurisdictional error – Tribunal failed to decide whether or not the applicant was a lesbian – Tribunal failed to comply with s.424A of the Act in respect of information relating to the applicant’s postings on social media – application for an extension of time granted – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5E, 65, 417, 424AA, 424A, 425, 474, 476, 477 |
| Dranichnikovv Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | SZUMY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1607 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 20 March 2015 |
| Date of Last Submission: | 20 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Godwin |
| Solicitors for the Applicant: | Brett Slater Solicitors |
| Counsel for the First Respondent: | Mr B. O’Donnell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The time for making an application under s.476 of the Migration Act 1958 (Cth) be extended to 13 June 2014.
A writ of certiorari issue directed to the Refugee Review Tribunal (“Tribunal”) quashing the decision of the Tribunal dated 5 November 2013.
A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 13 March 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1607 of 2014
| SZUMY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings is a citizen of Uzbekistan who arrived in Australia in May 2012. She applied for a protection visa in November 2012 on the basis that she feared harm in Uzbekistan principally because she was a lesbian and had been discovered to have been in a lesbian relationship. That application was rejected by a delegate of the first respondent (“Minister”) and the applicant applied to the second respondent (“Tribunal”) for review of that decision. On 5 November 2013 the Tribunal decided to affirm the decision of the delegate. The applicant sought advice from her migration agent as to what to do and took the advice that she should make an application to the Minister under s.417 of the Migration Act 1958 (“Act”).
In May 2014 the applicant was notified that her application to the Minister had been rejected. In June 2014 she applied to this Court for an extension of time within which to bring proceedings for judicial review of the Tribunal’s decision.
At the conclusion of the hearing of this matter I indicated to the parties that I would grant an extension of time to the applicant but that I would reserve my decision in relation to the substantive matter. The following are my reasons for allowing the extension of time together with the reasons for which I consider that the application ought to be allowed and that constitutional writs ought to issue in relation to the decision of the Tribunal.
Extension of time
The Tribunal’s decision was to affirm a decision to refuse to grant the applicant a visa under s.65 of the Act. Thus, depending on whether it was affected by jurisdictional error, the decision was either a privative clause decision within the meaning of s.474(2) or a purported privative clause decision within the meaning of s.5E of the Act. Consequently the decision was a migration decision and any application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction had to have been made within 35 days of the date of that decision: s.477(1).
The date of the decision was the date of the written notice of the decision, namely 5 November 2013. That means that any application under s.476 of the Act was required to have been made by 10 December 2013. No application was made by that date. This application was commenced on 13 June 2014, a little over six months later.
This Court has power under s.477(2) of the Act to extend the 35 day period as it considers appropriate if:
a)an application for that order has been made in writing to the [Court] specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the [Court] is satisfied that it is necessary in the interests of the administration of justice to make the order.
In these proceedings it is not in issue that the first of these conditions has been satisfied. The issue is whether the second condition is met.
In SZRIQ v Minister for Immigration & Citizenship (2013) 139 ALD 252 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2). His Honour explained the matters relevant to an application under s.477(2) as follows:
[46]There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
[47]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;
(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.
[48]The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
In SZNZI v Minister for Immigration [2010] FMCA 57 Smith FM said this about the Court’s discretion to extend time under s.477(2):
[11]The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.
For a more detailed discussion of the principles applied in relation to the exercise of power to extend time limits, see Enid Campbell and Matthew Groves, Time Limitations on Applications for Judicial Review (2004) 32 Federal Law Review 29 especially at 43-51.
The first question to consider is whether there was a reasonable excuse for the delay in commencing the proceedings.
Delay
In her amended application the applicant set out the following reasons for which she considered it was necessary in the interests of the administration of justice to extend time:
1.I have been debilitated in my capacity to adequately absorb information, manage my affairs, comprehend legal issues and take appropriate action due to my limited understanding (at various times) of English, anxiety, stress and/or mental health problems.
2.Straight after the RRT decision, I sought advice from a migration agent, Galena Ross, who advised me to apply for Ministerial intervention instead of judicial review through the courts. I trusted her and relied on that advice and I made a request for Ministerial intervention under s 417 of the Migration Act 1958 on or about 11/12/13.
3.I was notified of the negative outcome of the Minister’s decision dated 20/05/14, and I sought legal advice from Brett Slater Solicitors as soon as was practicable, on 28/05/14. Shortly thereafter, Brett Slater Solicitors prepared my application to this court for review.
In her affidavit sworn on 12 June 2014 the applicant set out further details of what she did in response to becoming aware of the Tribunal’s decision. She said:
9.In November 2013, Galina called me. She said words to the effect, “Your case at the RRT has been rejected”.
10.I asked her, “Should I come today?”
11.She replied, “No, there is no point. I have to think which step to take next”.
12.I then saw her at her home two or three days later. She said words to the effect, “I talked with two barristers. They said we do not have any chance in court. If you do have any chance it is a very, very small chance”. I received no advice in writing.
13.Galina then said to me words to the effect, “If you go through court you go against the Minister and you won’t have any chance with the Minister. My advice is to go straight away to the Minister”.
14.I accepted the advice which Galina gave me. I relied on it.
15.Galina never altered that advice.
16.Galina did not at that time give to me originals or copies of:
a)Letter from the RRT to her dated 6 November 2013.
b)“Notification of decision” addressed to me, of the same date, and enclosed with the said letter.
c)Decision Record of the RRT.
d)The “fact sheet” referred to in the third paragraph of the said “notification”.
…
19.Galina in or about November 2013 partly prepared a letter for me to sign. I wrote part of it. It was a ministerial request.
…
25.In or about early 2014 Andre arranged for me to go to the office of Malcolm Turnbull MP to seek advice and assistance. I went there three times, but did not meet Mr Turnbull himself. Each time I saw his assistant Jack Pinczewski.
…
27.To the best of my recollection, before the ministerial request was rejected I was never advised by Jack, or anyone from Jack’s office, or anyone else, that I should start the court case.
28.After my RRT rejection, I did not speak to any lawyers before the Minister request was rejected. I relied on the advice from Galina.
The applicant also relied upon a report from a clinical psychologist, Tania Alexander, dated 24 October 2014, and annexed to the affidavit of Andrew Blackie, affirmed 18 November 2014. Ms Alexander was asked to address a number of questions in her report. After setting out her observations of the applicant, Ms Alexander wrote the following:
The questions which I have been asked to address are as follows:
1.Has [the applicant] suffered from severe mental health problems since November 2013?
In my professional opinion [the applicant] was suffering from mental illness since 2012 and her mental state declined further since November 2013. My reasons for my opinions are those which I have set out in my report.
2.What types of mental health problems have been affecting [the applicant]?
[The applicant] is suffering from PTSD with severe symptoms of depression. My reasons for my opinion are those, which I have set out in my report.
3.Would [the applicant]’s mental health problems have made it more difficult for her to absorb what she is told, remember things, and think clearly, since November 2013?
I have not seen [the applicant] in November 2013 but taking into account her mental state in June 2014 and the history she reported, I believe her mental state in November 2013 was poor and repair represented the major obstacle for her to comprehend, remember and think clearly. My reasons for my opinion are those, which I have set out in my report.
4.Is it likely that any of [the applicant]’s mental health problems commenced before her arrival in Australia in May 2012?
Yes, very likely. My reasons for my opinion are those, which are set out in my report.
5.In the period between November 2013 and mid June 2014, would [the applicant] as a result of her mental health problems be likely to have experienced difficulties in connection with any of the following:
(1)Understanding how the Rules of Court affected her.
(2)Preparing Court documents in order to challenge a decision made by the refugee review Tribunal about her.
(3)Representing herself in the Federal Circuit Court of Australia?
In relation to the questions I have been asked, my opinions are as follows:
Yes, [the applicant]’s mental illness would have played a major role in her poor capacity to function between November 2013 and June 2014. She would have had severe difficulties understanding how the Rules of Court affected her. [The applicant] would have been unable to prepare Court documents due poor cognitive functioning, psycho-motor retardation and low-energy. [The applicant] would have been unable to represent herself due to severe mental illness. My reasons for my opinion of those, which I have set out in my report.
None of this evidence was challenged by the Minister. However, the Minister submitted that the applicant’s evidence showed that she had deliberately chosen not to exercise her rights to bring judicial review proceedings but had chosen to take another path. For that reason, he submitted, it was unnecessary to rely on the authorities to the effect that an application to the Minister for exercise of his discretion under s.417 of the Act could give rise to the inference of an election not to pursue judicial review proceedings.
In my view, the applicant has shown that there was a reasonable excuse for the delay in bringing these proceedings. When she learnt of the outcome of her application to the Tribunal, she immediately sought the advice of her migration agent. That advice, apparently given on the basis of discussions with two barristers, was that proceedings for judicial review were hopeless. In light of that, the applicant was advised to seek the exercise of the Minister’s discretion under s.417. It is not suggested by the Minister that the applicant had any real capacity, even in the absence of ill mental health, to make her own evaluation of the relative prospects of applying for judicial review or applying for the exercise of the Minister’s discretion. Further, it is clear that the applicant was not satisfied with the Tribunal’s decision and wanted to take whatever steps necessary to overcome that decision. In light of those matters, the fact that she acted upon advice goes against the Minister’s submission rather than supports it. That conclusion is strengthened by the uncontested evidence concerning the applicant’s ill-health and its effect on her ability to understand matters relating to judicial proceedings.
It is also important to note that, almost as soon as the applicant was notified of the refusal of her application to the Minister, she sought further legal advice and, once she received that advice, acted promptly in commencing these proceedings. The history of this matter shows that at no time did the applicant simply abandon her discontent with the Tribunal’s decision and, to the contrary, that she took all reasonable steps to seek redress in respect of it.
For those reasons, I am satisfied that the period of six months from the date of the Tribunal’s decision was not an unwarrantable delay in bringing these proceedings.
That said, it remains necessary to consider whether there are sufficient merits in the grounds now sought to be raised in support the contention that the Tribunal’s decision was affected by jurisdictional error.
Merits
The applicant pressed the following grounds in the application:
1.Despite concluding that in Uzbekistan “lesbian and bisexual women who are open about their sexuality have been subjected to sexual harassment, ill treatment and violence by both state and non-state actors,” the Tribunal failed to make a decision on a central question, namely, whether or not the applicant was a lesbian.
…
9.The Tribunal failed to comply with s424A and/or s424AA of the Migration Act 1958.
Particulars
9.1The RRT failed to give clear particulars of the adverse information contained in the departmental decision. The Tribunal wrongly assumed that the applicant had read the departmental decision made on or about 13 May 2013. The Tribunal failed to send it to the applicant.
9.2The RRT failed to comply with s 424AA(b)(iii) as it did not advise the applicant that she could seek additional time to comment on or respond to the information it invited her to comment on.
9.3The RRT relied upon the fact that the applicant was able to depart Tashkent without incident (CB 186.9) as a reason for affirming the delegate’s decision. This applicant’s ability to depart Tashkent emerges most clearly from the interview with the delegate (T28) which is not within the s424A(3ba) exception. Her ability to depart without incident was not included in an invitation under either s424A or 424AA.
10.The Tribunal failed to comply with s 425 of the Migration Act 1958.
Particulars
10.1The interpreter made an error to the effect that the applicant stated that she had a master’s degree, when the applicant made no such claim;
10.2The RRT relied upon this error in making its findings concerning the applicant’s credit;
10.3The interpretation error deprived the applicant of a meaningful opportunity to give evidence to the RRT.
At the conclusion of argument at the hearing I formed the view that each of these grounds was at least arguable. It was on that basis, together with the other considerations relevant to the extension of time including the question of delay, that I was satisfied that it was necessary in the interests of justice that the period under s.477(1) be extended. Although I formed that view without coming to any firm view about the outcome of each ground, my further consideration of the arguments has led me to conclude that there was jurisdictional error in the Tribunal’s decision. The following are the reasons for my conclusion.
Ground 1: failure to consider a claim
The first ground in the amended application is that the Tribunal fell into jurisdictional error by failing to decide whether or not the applicant was a lesbian. The Minister argued that the applicant’s claim was that she was a lesbian who had been “outed” by reason of a relationship with a woman and that the Tribunal dealt with that claim by reason of its broad findings of credibility as well as specific findings about the applicant’s factual allegations. Alternatively, the Minister argued that it may be inferred from other findings made by the Tribunal, and in particular its credit findings, that it rejected the applicant’s claims to be a lesbian.
It is well-established that the failure by the Tribunal to consider a claim that, if accepted, might lead to the acceptance of an applicant as a refugee, is jurisdictional error either in the nature of a constructive failure to exercise jurisdiction or a denial of procedural fairness: Dranichnikovv Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 at 1092 [24]-[25] per Gummow and Callinan JJ, Hayne J agreeing at 1102 [95]; 1101 [89] per Kirby J.
It is pellucid that the applicant in this case claimed that she was a lesbian and that her visa application was based on more than the fact that she had been “outed” by the discovery of her relationship with a woman. In the applicant’s statement that accompanied her protection visa application were the following statements:
They started surveillance but because of the stigma that surrounds lesbians in Uzbekistan done they could not tell anyone and spied themselves.
…
Neither Orthodox faith, nor Muslim accepts homosexuality.
…
… I was never attracted to a man, anyway.
…
I wish I was different. I wish my parents would be as proud of me as they were before they learnt about my sexuality.
The delegate understood that the applicant had made this claim. She stated that the applicant “claims she is a lesbian” and referred to her “LGBTI status”[1] on a number of occasions. In addition, the delegate found:
I am satisfied that the most recent country information support the applicant’s claims, that whilst her sexual orientation is not illegal in Uzbekistan, she could not live openly in a same-sex relationship in Uzbekistan society which is homophobic. Further that once outed, the applicant would be vulnerable to societal harassment and sexual violence.
[1] An acronym that refers to a group of people with diverse sexual orientation, sex or gender identity. It includes lesbian, gay, bisexual, transgender and intersex people and other sexuality, sex and gender non-conforming people, regardless of their term of self-identification:
In submissions to the Tribunal, the applicant’s migration agent wrote:
[The applicant] fears persecution based on her membership in a particular social group. Taking into account country information we can see that even such insignificant from our point of view action as her arguing with militia or being a lesbian could have attracted such harsh treatment.
The agent also referred to country information concerning the general situation of homosexuals in Uzbekistan.
The Tribunal accepted that, while same-sex relations between women is not criminalised in Uzbekistan, as is the case with male homosexuality, lesbian and bisexual women who are open about their sexuality have been subjected to sexual harassment, ill-treatment and violence by both state and non-state actors. It then referred to what it called the applicant’s “key claims”, namely that after the police found out about the applicant’s lesbian relationship, they harassed, beat and pack raped her, forced her to work as an informer and that because she defied them and escaped from the country, they would turn her life into hell and eventually destroy her. It then said:
[18]However, for the reasons outlined below, I did not find the applicant to be a reliable or truthful witness and am not satisfied that her evidence about her experiences in Uzbekistan can be relied upon. I am not satisfied that the applicant is in genuine fear of persecution for a Convention reason or that there is a real chance that she will suffer serious or significant harm on her return to Uzbekistan.
The Tribunal then set out a number of reasons relating to the applicant’s credibility before stating its factual conclusions as follows:
[27]Considered together, the reasons discussed above lead me to find that the applicant has not been truthful about her experiences in Uzbekistan and the reasons she fears returning to that country. I am not satisfied that the applicant was involved in a lesbian relationship as claimed, nor that police in Tashkent harassed, beat and pack raped her or forced her to do work as an informant because they found out about such a relationship, as claimed. I’m not satisfied that the applicant defied the police and escaped from the country for the reasons claimed. It follows that I am not satisfied that if she returns to Uzbekistan, the police will harm the applicant, ‘turn her life into hell’ and eventually destroy her, or that she will not survive for the reasons claimed. Rather, it is my view that the applicant fabricated her claims in order to achieve a migration outcome.
In my view, these passages reveal that the Tribunal failed to deal with the applicant’s broader claim to be a lesbian. While there is some force in the submission that the Tribunal’s finding on credibility was so broad as to have implicitly encompassed everything the applicant claimed in support of her application, the specificity of the Tribunal’s findings in relation to the particular matters in its reasons suggests that the better view is that those are the only matters to which the Tribunal ultimately turned its mind.
The Minister did not, in his submissions, rely on the finding at [18] of the Tribunal’s reasons that the applicant did not have a genuine fear of persecution. Ordinarily, in order to meet the definition of a refugee in Article 1A(2) of the Refugee Convention[2] a person must a have a subjective fear of persecution. In light of that, the finding at [18] would, if taken at face value, have been determinative of the applicant’s claim to be a refugee. However, I accept the applicant’s submission that, in this case, that conclusion, like the Tribunal’s other conclusions, was limited by its understanding of the applicant’s claims and that that understanding did not include a claim to fear harm for reason of being a lesbian.
[2] United Nations Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967.
What the Tribunal did not consider then, was the residual claim that the applicant was a lesbian who had not been discovered in a relationship with a woman and had not otherwise been “outed”. That residual claim left the possibility that the applicant might be “outed” in the future and face the harm that the Tribunal accepted is faced by homosexuals in Uzbekistan in open relationships. In effect, the Tribunal failed to ask the single critical question posed by sub-s.36(2)(a) of the Act, namely, whether the applicant had a well-founded fear of persecution for one of the Convention reasons. For that reason, the Tribunal constructively failed to exercise its jurisdiction.
Ground 9 – Breach of s.424A
Section 424A(1) of the Act sets out what might loosely be described as the Tribunal’s obligation to give a review applicant the opportunity to address adverse information. The obligation under that section is subject to two qualifications, namely, that it does not apply to information that falls within sub-s.424A(3) and secondly that the Tribunal can provide an applicant with an opportunity to respond to information in a manner that complies with s.424AA rather than s.424A(2). This ground raises issues concerning both of those qualifications as well as the issue of whether information is otherwise excluded from the operation of s.424A(1) by reason of the fact that, if accepted, it would adversely affect the credibility of the applicant.
Before turning to consider the statutory provisions in any detail it is necessary to set out the relevant facts.
In the delegate statement of reasons, under the heading “Identity Finding”, the delegate wrote:
Adverse information is held against the applicant, that she obtained the Special Program TE416 visa on which she entered Australia, by fraudulent means.
The original TE416 visa was intended for a person who conducted a Skype interview with the manager of the Sebel Kirkton Park Hotel in ‘almost perfect’ English on 1 December 2011. The applicant presented at the Siebel Kirkton Park hotel on 27 May 2012 ‘with no passport, luggage, training plan or details of qualifications, and unable to communicate in English’. The Manager of the Siebel also advised that the applicant attended in the company of a man identifying himself as ‘Dmitri’ who asked for free accommodation.
The Manager reported to the Department that the person who presented at the Sebel Kirkton Park Hotel on 27 May 2012 was not the person he interviewed by Skype.
Later in the delegate’s reasons, under the sub-heading “Consideration of Facts” the delegate wrote:
Evidence of TOEFL results in her name, Employment Reference and Financial Statement were submitted in support of her application.
…
In regards to the applicant, based on advice received by the department, I consider the applicant’s TOEFL Certificate as non-genuine.
I also consider the applicant’s Employment Reference from the Bukhoro-Kovrov Service as an accountant as non-genuine. The translation indicates the document has been “translated from the Russian”, when the official language in Uzbekistan has not been Russian since 1995.
I will refer to the information extracted from the delegate’s reasons for decision as the “fraudulent documents information”.
In its statement of reasons, the Tribunal referred to the fraudulent documents information stating:
[22]… as noted in the delegate’s decision, she obtained heard TE 416 visa by fraudulent means and her sponsorship was withdrawn because the hotel found that she was not the person with whom they conducted a Skype interview from Tashkent; and other documents submitted on her behalf were found to be false.
The Tribunal also referred to other information in its statement of reasons:
[23]Further, postings by a person from Tashkent with the same name, birth date and a similar appearance to the applicant on the Russian language social networking site, Odnoklassniki, raise serious doubts about the difficult time the applicant claimed she was having in Uzbekistan between August 2011 and the time she left that country. For example, the slogan ‘Life is wonderful!’ was posted on 18 August 2011, around the time the applicant claimed she was trying to escape from the devastating loss of her relationship with her girlfriend; and glamorous photographs of the applicant were frequently posted in March and April 2012, around the time she claimed she was beaten and raped by police. When this was put to the applicant, she confirmed that, with one exception, the photographs were hers; and that she had been a member of the site once but had not accessed it for 2-3 years. I find disingenuous the applicant’s response that she had no idea how the photos got onto the site or who had access to them, other than whoever took them; and that perhaps [name omitted] did it as “insurance”. If, as she implies, someone else posted the photos, it is not clear with what intent. I also noted that, by the applicant’s own evidence at paragraph 9, [name omitted] was not in Uzbekistan at that time.
I will refer to the information contained in that paragraph as the “social media information”.
The Tribunal stated, at [24], that its “reservations about the veracity of the applicant’s claims were reinforced by the implausibility of a number of key aspects of her account”. One of those was that the applicant was able to leave Tashkent without incident. The Tribunal inferred from this that she was of no interest to the authorities.
That information will be referred to as the “departure information”.
Those matters, together with other information, led the Tribunal to find that the applicant had not been truthful about her experiences in Uzbekistan and the reasons she feared returning to that country: Tribunal’s reasons at [27]. That finding was, in turn, the reason for which the Tribunal affirmed the decision of the delegate.
The applicant relied on a transcript of the Tribunal’s hearing annexed to the affidavit of Andrew Blackie, affirmed 25 November 2014.
Towards the end of the hearing, the Tribunal told the applicant that it had to put some information to her under the Act. It explained (at transcript p.48):
… [I]n each case the information is relevant to this review because it may cause me to have doubts about your truthfulness and the consequence of that will be that the information would be a reason for or part of the reason for affirming the decision of the Department of Immigration.
The Tribunal then explained:
And firstly, and you can answer me straight away or if I think it’s necessary I could give you some more time and that might mean we can have an adjournment for five minutes or 10 minutes. Or if I think it’s more serious than I can give you more time but that’s a decision that I need to make in terms of your response to that.
The Tribunal next explained that the procedure being followed was that under s.424AA of the Act. It then referred to the fraudulent document information, saying (at transcript p.49):
So my first point is that there is information contained in [the delegate’s] decision that you obtained your 416 visa by fraudulent means. Including that your sponsorship was withdrawn because the hotel indicated to you that they wouldn’t… that you were not the person with whom they conducted a Skype interview from Tashkent in order to get the sponsorship and while I’ve heard… And also that other documents submitted on your behalf were found to be false.
The Tribunal then made a second point before stating:
So is there anything you’d like to respond or comment about this? Would you like to do it now? Would you like to take a moment?
After a brief response from the applicant, the Tribunal asked (at transcript p.50):
Is there anything you’d like to say about obtaining your visa by fraudulent means, the first point that I made?
After a further, more detailed, response from the applicant, the Tribunal went on to raise the social media information. It explained that the information came from a social media website and said (at transcript pp.50-51):
Someone with your name and same birthday from Tashkent; and in particular the photographs that you have posted there, and the timing of those postings and the reason it is relevant again is because it raises questions about your truthfulness. Because in particular when I look at these pages and the timing in the context of what you had said in your evidence they raise doubts as to whether you have been truthful about the difficult time that you claimed you were having.
For example, you have a general line there which is life is wonderful, which is almost like your logo on your page, which was posted on the 18th of August 2011 at a time when you claimed you were trying to escape from the devastating loss of your relationship with your friend. And in March and April of 2012, around the time that you are having a hard time from police including being raped and wanting to hide in corners, you were regularly posting glamorous photos of yourself even though you said you were shy and hated everything about yourself.
…
[W]hen you are presenting a situation where terrible things are happening to you and yet you have time to do that would then it raises doubts about the sincerity of your claims in terms of when they were posted. And for somebody sitting where I’m sitting, where I don’t have a passport, where I don’t have any evidence that the claims that you have made a true apart from your word, your word becomes very important.
After a brief response by the applicant, the Tribunal said (at transcript p.51):
Is that all, the only comments you’d like to make?
There followed a brief exchange at the conclusion of which the Tribunal asked whether the applicant or her adviser wished to say anything else.
The relevant statutory provisions are as follows. Section 424A provides:
424AInformation and invitation given in writing by Tribunal
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
Section 424AA provides:
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The applicant argued that the fraudulent documents information was “information” within the meaning of s.424A and was not excluded by sub-s.424A(3)(b) because, although it was contained in the delegate’s decision, the applicant in this case did not give the delegate’s decision to the Tribunal. Further, the Tribunal’s attempt to comply with s.424AA failed because it did not give “clear particulars” of that information. In respect of both the fraudulent documents information and the social media information, the applicant argued that the Tribunal failed to comply with the procedure under s.424AA in that it did not advise the applicant that she may seek additional time to comment on or respond to the information.
In respect of the departure information, the applicant argued that it undermined the applicant’s claims and, as it had emerged from the interview with the delegate, it was not exempted from s.424A(1) by sub-s.424A(3)(ba).
The Minister argued that, for two reasons, neither the fraudulent documents information nor the social media information was “information” within the meaning of s.424A: first, the information was neutral in that it did not “in [its] terms” undermine the applicant’s claims for protection; and secondly, it merely concerned the applicant’s credibility and thus would not be the reason or part of the reason for affirming a primary decision. The Minister conceded however that the particulars given by the Tribunal at the hearing in respect of the fraudulent documents information was inadequate and did not comply with the procedure under s.424AA. Further, in respect of the social media information the Minister conceded that, if the decision of Flick J in SZNKO v Minister for Immigration & Citizenship (2010) 184 FCR 505 was correct, then there was insufficient warning given by the Tribunal as to the applicant’s ability to ask for further time to respond. The Minister submitted that that decision was wrongly decided but did not contend that I should not follow it. Any such contention would have failed. That decision was in an appeal from a judgement of this Court and I am bound to follow it: Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515 at 522 [29].
Given the two concessions by the Minister, the only real issue before me is whether either or both of the fraudulent documents information and the social media information fell within the scope of s.424A.
The Minister argued that the departure information did fall within sub-s.424A(3)(ba) and so was excluded from the operation of s.424A(1). It is convenient to deal with the other two pieces of information first before considering the departure information issue.
The obligation under s.424A applies to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The first matter to note about this provision is that it relates to “information”. The ordinary meaning of that word is ‘knowledge communicated concerning some fact or circumstance’: Oxford English Dictionary (online). That suggests that the subjective determination by the Tribunal that the applicant’s account might not be credible does not fall within s.424A(1): Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54]. In VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471, Finn and Stone JJ explained further at 476 – 477, by reference to Tin, that the word “information”:
… does not encompass the Tribunal’s subjective appraisals, thought processes or determinations... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.
(References omitted.)
That passage was accepted as correct by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190.
The second matter to note is that the information must be information that the Tribunal “considers would be the reason, or a part of the reason, for affirming the decision that is under review”. In respect of this aspect of the provision, the plurality in SZBYR said:
[17]Second, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
The Minister’s submission in respect of this ground focused upon the second last sentence in that passage: “Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.” It is important to understand that sentence in its context. The argument of the appellants in that case was noted by the plurality at [15]:
In their written submissions, the appellants appeared to focus on the requisite “information” as being the “inconsistencies” between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.
Each of the statutory declarations in that case would, if accepted, have supported the appellant’s claims to be a refugee. It was only when they were compared to each other and differences between them discovered that a conclusion might be drawn that the account relied upon by the appellant was not reliable. It was for that reason that it could be said by the Court that the Tribunal could not have considered that the relevant parts of the statutory declarations would be the reason or part of the reason for its decision. In my view, this passage does not support the broad proposition that information which undermines an applicant’s credibility does not fall within the scope of s.424A.
The Minister also relied on the decision of Heerey J in MZXBQ v Minister for Immigration & Citizenship (2008) 166 FCR 483. The applicant in that case was a citizen of Sri Lanka who applied for a protection visa on the basis of a fear of harm for reason of his support of a political party. The applicant was placed into immigration detention in Australia as a result of breaching the “no work” condition on his visa but was released when a bond was paid. In this Court, the applicant argued that the Tribunal had breached s.424A. The “information” said to have been the subject of the obligation under that provision was the fact that a friend had paid a bond for the applicant’s release from detention. The Tribunal sent a letter to the applicant under s.424A but did not mention that information in it. Similarly, the information concerning the bond was not mentioned in the Tribunal’s reasons. The learned Federal Magistrate found that s.424A did not operate because the information was not part of the Tribunal’s reasons for decision and, in any event, would have dismissed the matter for discretionary reasons.
The critical passages in the judgment on appeal are:
[27]SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.
…
[29]It can also be noted that the section speaks of information that “would” be the reason etc, not “could” or “might”. This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant’s claims.
[30]Accordingly, counsel for the appellant was correct in submitting that the learned Magistrate’s reasons in the present case were flawed. He reached the right decision for the wrong reasons. He thought the $20,000 bond issue could not have been a reason for affirming the decision if the Tribunal never mentioned it. Post-SZBYR the correct approach would have been for the Tribunal to consider whether the $20,000 bond information, if true, would be the reason, or part of the reason, for affirming the decision to refuse the appellant’s protection visa application. For all the Tribunal knew, the appellant’s account may have been true. The fact that he named the friends suggests a reason why the Tribunal did not pursue the matter further. Even if the account was untrue, and in fact the appellant provided the $20,000 himself, at most it might suggest he was lying when he said he worked illegally because he needed money. Either way, the issue was quite peripheral. Untruthfulness of the appellant’s account would not be the reason, or part of the reason, for affirming the decision under review.
His Honour did not go so far in these passages to say that any information that goes to credibility does not, for that reason, fall within s.424A. To the contrary, the comments concerning credibility were limited to information that “only” or “at best” or “merely” went to credibility. It is clear enough on the facts of that case that the identity of the person who paid the bond for release from detention had nothing to do with a fear of persecution for reasons of political opinion in Sri Lanka. The qualification in these passages was noted and applied by Jagot J in SZJZB v Minister for Immigration & Citizenship (2008) 105 ALD 226 at [22]-[25] and Rares J in SZEWL v Minister for Immigration & Citizenship (2009) 174 FCR 498 at [48]. This means that the inquiry is more nuanced than that suggested by the Minister.
In MZYIA v Minister for Immigration & Citizenship [2011] FCA 642 Gray J explained at [25] that, because the obligation under s.424A(1) hinges on what the “Tribunal considers”, the essential question is how the Tribunal proposes to use the information in its reasoning process.
With those principles in mind it is necessary to determine whether either the false document information or the social media information fell within s.424A(1). It appears from the transcript that the Tribunal considered that the false document information would be part of the reason for its decision only insofar as it might support the view that the applicant was not a credible witness. That inference is confirmed by reference to the Tribunal’s reasons. In my view, that does not bring the information within the scope of s.424A(1). A person’s credibility may be undermined without any impact on the decision to be made. Whether it does or not depends on further analysis of all the evidence by the Tribunal. In that case, it is the outcome of that further analysis rather than the earlier “information” that “would be the reason or part of the reason for the decision.”
On the other hand, the Tribunal’s view of the social media information was that it directly undermined a central part of the applicant’s claims, namely, that she was being seriously harmed by the police. Although that, too, went to the applicant’s credibility, it did not “merely” go to her credibility. Rather, it directly undermined the factual basis of her claim to be a refugee. For that reason, the social media information fell within s.424A(1) of the Act. As the Tribunal’s attempts to comply with s.424AA in respect of that information fell short, it failed to comply with s.424A and so committed jurisdictional error.
In light of that conclusion, it is not strictly necessary to determine the departure information issue; however, I will do so for the sake of completeness.
The Minister did not contest the assertion that the departure information was given by the applicant at the interview by the delegate. His argument was that it was also given in the applicant’s written statement that accompanied her visa application and, for that reason, fell within sub-s.424A(3)(ba). He also argued that it was given by the applicant at the Tribunal hearing, and so fell within sub-s.424A(3)(b). In light of those arguments, it is unnecessary to examine any of the intricacies to which these provisions can give rise: see for example, NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at 431 – 436 [48]-[64] per Young J and SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3 at [22]-[24].
In the statement that accompanied the applicant’s visa application, the applicant wrote:
My father went to buy air ticket but only managed to get one for 25th May. … I came to Sydney on 27th May and was taken to Hunter Valley.
Although there was no statement to the effect that the applicant had any difficulties leaving Tashkent, there was also nothing to say that she had no difficulties. In my opinion, this statement does not show that the applicant “gave” the departure information during the process that led to the decision that is under review.
At the hearing before the Tribunal, the applicant said (at transcript p.45):
When my dad bought a ticket and then I wasn’t stopped on the border or anything like that I couldn’t believe it that I was able to leave freely.
In my view, this evidence was the “departure information” and, because it was given by the applicant to the Tribunal, fell within sub-s.424(3)(b) and was excluded from the operation of s.424A(1). For that reason, the Tribunal did not breach that provision by failing to give any particulars of it to the applicant by the method prescribed by either s.424A(2) or s.424AA.
Ground 10 – Error in interpretation
Towards the beginning of the Tribunal hearing, the Tribunal said to the applicant that it needed to ask her a few questions about details that were omitted from her application. One of those details concerned her tertiary education. The transcript records the following passage (in which “MM” refers to the Tribunal member, “App” refers to the applicant and “Int” refers to the interpreter):
MM:Okay and what did you …? It says here your qualifications are as an accountant is that right?
App:Yeah.
MM:What did you study?
App:Accounting.
MM:So what was your … did you complete your degree?
App:Yeah.
MM:What was the degree?
Int:Yeah, banking, financing and credits and my … not Honours, my Masters … my Masters was …
App:Accounting.
Int:Was in Accounting yeah.
Later in the hearing the Tribunal asked the applicant a number of questions about how she obtained her visa to come to Australia. The following passage is pertinent:
MM:Did you have to sign anything?
Int:Yes, we had to sign some forms but I never read them because they were the people that we knew for more … for 21 years and so we trusted them. My dad gave me the forms to sign, I signed them and that was it, I didn’t read anything, no documents.
MM:And is that the approach you took with documents in your accounting work also, that if you knew somebody for 20 years you didn’t bother to check what was being signed or who was signing it?
Int.No, of course not … I could feel different but like that I didn’t really care too much.
MM:Can I just make a comment that I find it difficult to believe that somebody who was educated and had a Master’s Degree in Accounting would take such a flippant attitude to signing what is a legal document.
Int: Unfortunate, it’s the truth that no … people in Uzbekistan have this approach to the documents, like people not very educated about this sort of thing, not very smart about this.
MM:I’m actually … Excuse me. I’m not talking about people in Uzbekistan, I’m talking about you. To me it’s quite a serious matter that you would so flippantly refer to yourself as well, you know I just signed a document, I didn’t bother to look particularly, as you, not like most people in Uzbekistan … we’re talking about you and your case… were educated in accounting, audit, by your own words.
(Emphasis added)
The applicant relied upon an affidavit of a NAATI-accredited interpreter, Ms Mikhailik, in order to establish that there was an interpreting error in the passage set out at [77] above. Her evidence was to the following effect. After the Tribunal member asked “What, what, well, what was your degree called?” The applicant answered in Russian: “Banking, finance and credit. I wrote my graduation thesis in accounting explicitly.” According to Ms Mikhailik, the applicant did not say that she had completed a Masters degree and in fact made no reference to a Masters degree. That evidence was not contested.
The applicant submitted that this was a critical error in interpretation. She argued that the passage in the transcript set out at [78] above showed that the Tribunal was unimpressed by the applicant’s admission that she did not read the visa application forms before she signed them and that part of the reason for this was its understanding that the applicant had completed a Masters degree. This, it was argued was sufficiently critical to constitute a frustration of the right to a hearing afforded under s.425 of the Act.
The Minister argued that while an error in interpretation may have occurred the interpretation at the hearing was not so inadequate that the applicant was prevented from giving evidence to the Tribunal and that the error in any event was not material to the conclusion of the Tribunal.
The error in interpretation was said to have been that, instead of directly interpreting the words “I wrote my graduation thesis in accounting”, the interpreter said “My Masters was in …”. It may be noted that it was the applicant who completed the sentence by adding, in English: “… in accounting.” I am not convinced that that is an error in interpretation. Bearing in mind the potential differences in the terminology used for tertiary studies in different languages and different cultures, it is possible that a graduation thesis is only written for a Masters degree. Ms Mikhailik did not express any opinion about whether the interpretation was wrong, only that the applicant did not say that she had completed a Masters degree.
The applicant understood enough English to complete the sentence for the interpreter and could readily have corrected the reference to Masters if that were incorrect. As the passage extracted at [78] above shows, the Tribunal later referred directly to the fact that she had a Masters degree. No issue is taken about the translation of that passage. Thus, even if the applicant did not understand the English word “Masters”, she must have understood it when it was translated back to her. If it was incorrect, she had the opportunity to correct it but did not do so. That lends strength to my conclusion that there was in fact no misinterpretation. For that reason alone, this ground fails.
I also consider that, even if there were an error in interpretation, there was no breach of s.425 or denial of procedural fairness. In WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 Ryan J (with whom Tamberlin and Middleton JJ agreed), stated the relevant principles in respect of s.425 as follows:
[29]To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry…
(See, to a similar effect, P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [16] – [17]).
In SZSEI v Minister for Immigration & Border Protection [2014] FCA 465, another case dealing with s.425, Griffiths J noted, at [71], by reference to the judgment of the Chief Justice in SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212 that passages such as this had to be read with some caution. His Honour explained:
That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in s 422B(3) that, in applying Div 4, the Tribunal must act a way that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]).
In SZRMQ Robertson J found, at [75], that the approach in WALN was too narrow where the general law of procedural fairness was applicable. However, as Griffiths J noted in SZSEI, there is considerable overlap between the principles to be applied in relation s.425 and procedural fairness. In that respect, regard need only to be had to cases such as NAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. Bearing that in mind, and although the relevant principles to be applied in this case appear to be those explained by Ryan J in WALN, I have borne in mind the caution expressed by both Allsop CJ and Robertson J in SZRMQ as well as the qualifications and other principles explained by Griffiths J in SZSEI at [73] – [81].
There are a number of important factual matters that determine the outcome of this ground: first, without intending any pun, the mistake in the translation, if there was any, was one of degree; secondly, there was only one error in a hearing that went for some four hours; thirdly, the error was repeated to the applicant so that she had the opportunity to address it and correct it if she wanted; fourthly, and contrary to the submission of the applicant, it was not the fact of a Masters degree, but the qualification in accounting that had any relevance to the applicant’s credit: see the emphasised part of the last paragraph in the passage extracted at [78] above. In light of that, I conclude that the applicant’s opportunity to give evidence and present arguments was not affected in any way by the mistranslation. The reference to “Masters” could have had no bearing on any part of the Tribunal’s decision and, further, the process when considered as a whole, was entirely fair.
This ground must be rejected.
Conclusion
The Tribunal’s decision was affected by jurisdictional error. A writ of certiorari should issue bringing the decision into this court in order to be quashed. A writ of mandamus addressed to the Tribunal should also issue, requiring the Tribunal to determine the applicant’s application for review. The first respondent should pay the applicant’s costs of the application to this Court.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 3 June 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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