SZUYU v Minister for Immigration
[2017] FCCA 575
•24 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUYU v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 575 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision is affected by jurisdictional error by reason that the applicant had been denied a real and meaningful hearing before the Tribunal because of interpretation difficulties and by reason that the Tribunal did not adjourn its hearing to inquire into any inadequacies in the interpretations at its hearing. |
| Legislation: Migration Act 1958, ss.36, 474, 477 |
| Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 |
| Applicant: | SZUYU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2381 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 17 March 2017 |
| Date of Last Submission: | 17 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms E. Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2381 of 2014
| SZUYU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iran who arrived in Australia on 10 May 2012 as an irregular maritime arrival. On 26 August 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Iran because of his ethnicity and his political opinion. On 30 November 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. However, on 22 February 2013 the Tribunal affirmed the decision of the delegate not to grant him a protection visa.
On 25 August 2014 the applicant applied to this Court for judicial review of the Tribunal’s decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and on 17 March 2017 I ordered that the time for the commencement of the proceeding be extended to 25 August 2014.
In proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND
Protection visa claims
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. The applicant relevantly made the following claims:
a)he was born in Ahwaz, Iran, and is of Arab ethnicity;
b)he suffered discrimination in Iran in all facets of his life because of his ethnicity. Arabs were not allowed to speak Arabic, observe Arabic customs or wear traditional Arab dress. Arabs were also denied schooling and employment, could not gather in groups of more than five without being arrested and were forcibly removed from Ahwaz;
c)his father was a farmer who advocated for Ahwazi rights. When his father complained about their land being confiscated, he was kidnapped by the Iranian authorities and later killed. The authorities gave his family a death certificate which stated that his father had drowned at sea;
d)he was a child at the time of his father’s death so was unaware of his political activities;
e)during the 2012 election he and his friends produced pamphlets which spoke to Ahwazi rights and were anti-government;
f)he and a friend (“ABT”) distributed the pamphlets the day before the election and on election day (on 2 March 2012). They did so by motorbike, throwing the pamphlets over people’s fences and across footpaths and by giving them to children to give to their parents. They distributed the pamphlets at around midday because there was no one on the street at that time;
g)additional police officers were brought into Ahwaz on election day because of demonstrations in the city. His friend was caught by the police with the pamphlets in his possession and was handed over to Iranian intelligence;
h)a few days later ABT’s brother told him that ABT had, under torture, provided the authorities with the names of the people involved, including the applicant’s name;
i)he became fearful and spent the next few weeks moving around to avoid detection. On 20 March 2012 he arrived at his sister’s house and remained there for the next twenty days. Whilst there, his wife told him that the authorities had searched their home and were looking for him;
j)he had not been politically active prior to the distribution of the pamphlets and was not a member of any party. However, he often talked about these issues with his friends, being careful whenever he did so for fear of being exposed; and
k)he feared persecution in Iran for reasons of his ethnicity and his status as an asylum seeker. He also feared persecution for political reasons, having actively opposed the Iranian regime.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)overall, the Tribunal did not find the applicant to be a reliable, credible or truthful witness and concluded that he had fabricated his claims in order to be granted a protection visa;
b)whilst the Tribunal accepted that the applicant’s father had died, it did not accept that he had been kidnapped and killed by the Iranian authorities because, coupled with the Tribunal’s concerns about his credibility, the applicant had been vague about his father’s role as an activist;
c)for the following reasons, the Tribunal did not accept that the applicant or his friend handed out pamphlets over two days in 2012:
i)such an action was at odds with the applicant’s level of politicisation prior to the alleged incident. In the Tribunal’s view, for someone who eschewed public expression of Ahwazi political opinions because of his fear of being exposed, his claim to have spent two to three hours a day over two days handing out pamphlets criticising the Islamic republic in broad daylight in the middle of Ahwaz lacked credibility;
ii)the applicant claimed that the police where everywhere on election day. Yet, despite the allegedly very high security presence, he and his friend were able to hand out anti-regime pamphlets for up to six hours without being seen by the police; and
iii)the applicant claimed that he and his friend chose to hand out the pamphlets at around midday because no one was on the street, yet also claimed that they gave the pamphlets to children to hand to their parents. The Tribunal did not consider it plausible that the only people on the street during midday to hand pamphlets to were children. In the Tribunal’s view, it was reasonable to assume that children would either be at school or at home for lunch and, if they were on the street, that adults would also be there;
d)the Tribunal did not accept that the applicant’s friend was arrested and interrogated as his claims in this regard lacked consistency and credibility:
i)the applicant initially claimed that ABT had provided the authorities with the names of the people who had been distributing pamphlets with him, including the applicant’s. However, he later claimed that this was incorrect and that ABT had only provided the names of a few people. Given that the applicant claimed that he was the only person handing out pamphlets with ABT, the Tribunal found that the applicant had tried to obfuscate the issue; and
ii)the Tribunal did not accept that the applicant could have known what his friend had confessed as it did not accept as credible the applicant’s claim that ABT’s brother had been able to visit him within a few days of being arrested. In the Tribunal’s view, it lacked credibility that the authorities would allow relatives access to a prisoner being interrogated so quickly after being arrested, lest they tell their co-conspirators what had been revealed;
e)the Tribunal’s above findings were strengthened by the absence of any interest on the part of the security forces in the applicant in the four weeks after the incident;
f)having rejected the applicant’s claim to have distributed pamphlets, and given that he was not a member of any Ahwazi (or other) political organisation, had never taken part in a demonstration or had any political profile at all, the Tribunal did not accept that the applicant would be regarded as an opponent of the Iranian regime;
g)the Tribunal did not accept that the applicant’s children were denied schooling, that Arabs were detained if they gathered in groups of more than five or that the applicant was not allowed to speak Arabic, wear Arab dress or observe traditional Arabic customs as none of these claims were supported by independent country information;
h)the Tribunal accepted that Ahwazis were subject to discriminatory employment practices but did not accept that such practices amounted to persecution. Further, in the applicant’s case, the Tribunal did not accept that he had been subject to any discrimination in his access to employment, noting that the applicant had worked continuously (except for one month) since leaving school in 1996 and his employment profile in unskilled positions was commensurate with his education and qualifications; and
i)the Tribunal accepted that failed asylum seekers returning from the West constituted a particular social group. It noted that there was general agreement amongst sources that people who had a political profile, had engaged in illegal activities or had been actively and publicly critical of the government while overseas might, upon their return, attract the adverse attention of the authorities. However, there was no evidence to suggest that being a failed asylum seeker would, in itself, result in mistreatment on return to Iran. Having found that the applicant was not politically active, either in Iran or in Australia, the Tribunal was not satisfied that he would be subjected to serious harm for being a failed asylum seeker returning from the West.
GROUNDS FOR JUDICIAL REVIEW
On 17 March 2017 the applicant was granted leave to file an amended application. The third ground of that amended application was not pressed. Further, notwithstanding how the amended application was drawn, the applicant expressly relied on it only to the extent that he alleged that he had been denied a real and meaningful hearing before the Tribunal by reason of inadequate translation services.
The applicant submitted that the Arabic interpreter who had assisted him at the Tribunal hearing had been unable to interpret adequately and that, given the exchanges at the Tribunal hearing where this possibility was discussed, the Tribunal should have “explored whether there was understanding” and inquired into whether the interpreter and the applicant could understand each other. He submitted that the Tribunal’s failure to do so was unreasonable, in the sense that no reasonable decision-maker would have exercised the discretion in that way, and that he was denied a fair and just hearing as a consequence.
Dealing first with the latter point, if an applicant before the Tribunal is denied the real and meaningful hearing implicitly guaranteed by s.425 of the Act by reason of inadequate interpreter services at a Tribunal hearing, then the subsequent decision on the review will be affected by jurisdictional error. Whether there has been such an error is an evaluative process by reference to the whole hearing and will be determined by reference to the effectiveness of the communication at the Tribunal hearing, through the medium of the interpreter. Whether any deficiencies in interpretation will ground a finding of jurisdictional error will depend, amongst other things, on their materiality to the Tribunal’s decision on the review: SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212; BZAID v Minister for Immigration & Border Protection (2016) 242 FCR 310.
The applicant relied on the following passages from the transcript of the Tribunal hearing:
Page 7:
INTERPRETER: Member, can I please ... Interpreter speaking, can I just clarify something?
MEMBER: Yeah, yeah.
INTERPRETER: Um, because of the Iranian background, so he’s really not speaking proper Arabic...
MEMBER: Yep.
INTERPRETER: ... and this is why the structure of the sentences is a bit messed up and some words are not very Arabic, um, so, I’m trying my best and if what I say does not seem to be well structured, it’s because I’m maintaining the accuracy and saying word for word. I’m very quick in taking notes...
MEMBER: Sure.
INTERPRETER: ... so I’m just repeating word for word.
MEMBER: Okay. Can you just um, reiterate the fact that because of um, some dialectic variations, it’s very important that you break your ah, sentences up into smaller groups, so we can get a more accurate ah, interpretation. Your ... your sentences are too long at the moment. Break your sentences up into smaller groups.
INTERPRETER: Ah, I’ll also let him know what I’ve just said.
MEMBER: Yeah.
INTERPRETER: Ah, well we don’t speak Arabic very well because that was one of the problems over there, we were fearful for ourselves, we were unable even to study Arabic and sometimes when I have an Egyptian or a Lebanese dialect, I can understand what he’s saying, but he cannot understand me. And this is also due to our problem.
Page 14:
INTERPRETER: Ah no, no. I had my passport but they told me, first of all you bring your own passport, and then after that we will give you a passport that’s specially for the sea. Ah, first I ... I needed to have my passport, and then they were going to give me another type of passport. I needed to study for a month, they’d give me a sea passport and then they would do a blood test. They wanted to check me, to make sure that I am healthy and I am capable of working at sea.
MEMBER: Where ... where was this? Where would you be working out of -what city?
INTERPRETER: I did not pursue that. I only produced my passport, and I did not go anywhere.
MEMBER: Yeah, who did you produce it to? Where was the company that you produced it to ... or ... or the people that you produced it to?
INTERPRETER: Sorry Member, maybe it’s my error – producing passport, as in getting a passport.
MEMBER: Oh, okay, sorry.
INTERPRETER: Or applying and getting a passport.
MEMBER: Okay.
Pages 19-20:
MEMBER: Okay. Um, country information says that if you were to return to Iran as a failed asylum seeker, simply the act of applying for asylum overseas, does not result in persecution from the Iranian authorities, just the normal ah, immigration fines that would apply. Those people who may come to the attention of the Iranian authorities ah, as failed asylum seekers, would have a political profile. (Interpreter starts to interpret) ... sorry ... either from when they were in Iran, or if they’ve been conducting activities outside of lran. So what’s your response to that?
INTERPRETER: Ah well, my answer, with all due respect, that what you’re saying is ... is ... is not ah...
INTERPRETER: I can’t ... sorry Member, I can’t find the exact word. It's not good, or accurate or something like that, but...
MEMBER: Yep. (Indistinct).
INTERPRETER: ... not ... not very right. Ah, but my name is with the intelligence. …
…
MEMBER: Okay. Um, you said he defended Iraqis.
INTERPRETER: My father defended Iraqis?
MEMBER: Yeah, you said from 2005 your father defended Iraqis (indistinct) earlier on in the interview.
INTERPRETER: Okay. Not the Iraqis, maybe the Interpreter was confused because I said (speaks Arabic word) for lands.
INTERPRETER: Ah, this is actually what I just said. He said...
MEMBER: Sure.
INTERPRETER: … he said lands (speaks Arabic word) and he said (speaks Arabic word), which also meant lands.
INTERPRETER: So he said maybe the Interpreter (indistinct) thought that it was Iraqi ...
MEMBER: Okay.
INTERPRETER: ... but the Iraqis are a total separate issue …
MEMBER: Sure.
INTERPRETER: … they have nothing to do with us.
Page 22:
MEMBER: Nobody ever pulled you over ‘cause your friend was wearing a dishdash?
INTERPRETER: Ah, not ... not even once on the motorbike when distributing pamphlets. When I spoke about the dishdasha, I ... I was referring to the elderly people, they're the ones who wear it, ah, and also the elderly put, ah, red head cover.
MEMBER: (Indistinct).
INTERPRETER: Yeah. But um, but I ... up until today, nobody is able to put this red ah, (indistinct) on, and for us young ones, we can’t wear the dishdasha.
MEMBER: But your friend was wearing it.
INTERPRETER: Yes, he was.
MEMBER: Okay. Um...
INTERPRETER: No, on the day when my friend and I were distributing pamphlets, my friend was not wearing a dishdasha. I did not say he was wearing (indistinct). I did not say he was wearing a dishdasha.
MEMBER: Ah, I think you did. You said he was very ... get the exact words, ah, very, very brave, or foolish or crazy, and he was wearing a dishdash.
INTERPRETER: Ah yes, he does, he wears a dishdasha but not on the day of distributing the pamphlets.
MEMBER: Okay. We’ll find out um, for your advisor if you think there is a problem with the ah, interpreting that supports that claim, then you can include that in your submission.
ADVISER: (Indistinct).
Page 24:
MEMBER: Okay. And when did the security forces first come to your um, sister's house?
INTERPRETER: No, the security forces did not come to my sister’s, they...
MEMBER: Oh sorry, to your ...
INTERPRETER: ... came to my home.
MEMBER: … to your house. When did they first come to your house?
INTERPRETER: Okay. Ah, well, I stayed there ... okay, I stayed there for about eighteen days, and then I went to my sister’s home for about twenty days, and then maybe after five, ten days, they came to our house and they search our house ...
INTERPRETER: But um, Member this is the Interpreter speaking, I wasn’t really clear and this is why last time I said five to ten days from going to your sister, or before leaving your sister’s and …
MEMBER: You need to clarify, so can you ask again?
INTERPRETER: Yeah.
MEMBER: Supposed to be very specific.
INTERPRETER: Yeah.
INTERPRETER: I think in between, during my stay, not at the beginning or not at … at the final days of my stay at my sister’s.
MEMBER: So that first eighteen days where you were at your uncles’ houses, nobody came to your house?
INTERPRETER: No, nobody did.
MEMBER: And then, some time in the middle of the next twenty days when you were at your sister’s house, the security forces searched your house.
INTERPRETER: Ah yes, and during these eighteen days when I was still there, I was not safe, I was not feeling secure, I was very, very afraid.
Pages 25-26:
INTERPRETER: I do have some documents with me, is it okay if I show them to you?
MEMBER: Ah, no, I prefer to get them through your ah, representative, rather than take them direct.
INTERPRETER: Ah, I already gave them to my solicitor, you might have them there, but just to have a quick look at them?
MEMBER: Um, what documents are they?
INTERPRETER: They’re there, just right there.
MEMBER: These?
APPLICANT: Yeah, this one ... yeah, this one...
MEMBER: Then there’s another one. Yep. I’ll take them. Um, while the ... the country information about employment is . . . or there are claims that um, there is some um, discrimination um, of employment of Ahawazis ...
INTERPRETER: Um, ah, sorry he’s not understanding the word that I’m using (speaks Arabic)...
MEMBER: ... that does not mean that all government employment is um, Ahwazis are blocked from all government employment and in fact there are examples of ah, Ahwazis in ah school administration, um, ah, efforts to recruit Ahwazis into the Basij. That’s country information which I invite your comment on.
INTERPRETER: Um, um, in the mosque if you wanted to go to pray, they will find a Basij. You have to have ... have it. Ah, all the Iranian intelligence in al-Ahawaz are ... are too powerful that you cannot even breathe. If I were to say anything about any injustice that I’m experiencing for example, if I were to say that the petrol is expensive because I am an Arab, that means that I am inciting people and that I am um, um, sorry inciting them to be against their regime.
Pages 27-28:
INTERPRETER: Member while we’re waiting, please that I ... just ... I have to ... to say that professionally, ah, because of ... of this dialect and the Arabic words etcetera, in regards to what he said about the pamphlets ...
MEMBER: Yep.
INTERPRETER: ... actually when he was talking I could hear him saying, “supporters, supporters”, and I thought, no, I’m sure he meant, “not supporters of the regime”. Um, I’m trying to say, you know how he said that in the pamphlets we said, “do ... we are not supporters and if you elect that means you are supporters of the regime'”, so that was not very clear because when he says, “you are not supporters (speaks Arabic)” and sometimes he’d say (speaks Arabic), so it ... it was a bit confusing. So I ... either if you like I can listen to the recording again and confirm whether the pamphlets did say “do not vote” because that means you are a supporters of the regime, or if the solicitor would like to get another interpreter to confirm that.
MEMBER: Did you um, I’m more interested in whether um, in his evidence he said um, I didn’t in my notes see it, didn’t hear him say that um, they urged them not to vote ...
INTERPRETER: Hmmm.
MEMBER: ... in fact didn’t talk about voting at all, and I specifically asked about voting. If he um, where he said supporters or not supporters, that’s not necessarily relevant to the question. The question was about whether you heard the word “voting” or “not to vote”.
INTERPRETER: That’s another problem because in Arabic he never used the word ... the word “vote” and I don’t think he knows what the word “vote” means in Arabic. But he was saying (speaks Arabic word) ... and then later on when you spoke about the ... you know, later in the hearing, that it made sense to me that he means you know, “vote'”, so, (speaks Arabic word) in Arabic means you know, “move forward” ...
MEMBER: Yeah.
INTERPRETER: … or a approach this thing. But he was actually, when he was using this word, he was referring to “vote” or “do not vote”. So he might have touched base on that …
MEMBER: Can we ... can we just clarify here what um, phrase um, you would use for elections and voting?
INTERPRETER: Well, if I’m going to say to him in Arabic, then he might use my words.
MEMBER: Yeah.
INTERPRETER: But he repeatedly later on in the hearing said, ‘cause he repeats himself a lot, he said um, ah ...
MEMBER: Okay.
INTERPRETER: ... (speaks Arabic) as in (indistinct).
MEMBER: In fact I don’t ... yeah, I don’t think it’s going to be, ah, the thing’s going to hinge on that particular, um, translation.
INTERPRETER: Okay. I...
MEMBER: Yep.
INTERPRETER: ... just needed to say that because...
MEMBER: Sure.
INTERPRETER: ... it might be important.
MEMBER: Um, but by all means to the representative, if you want to bring that out in your um, ah, submission pre or post, ah, feel free.
ADVISER: Not a problem, thank you, we’ll definitely address that.
Page 30:
INTERPRETER: Okay. I just like to clarify in regards to what was published in the pamphlet. It’s exactly what I said and I was consistent that we are not supposed to vote and that we are oppressed and we don’t have freedom.
MEMBER: Okay. Noted.
It was submitted that these passages demonstrated the interpreter having difficulty doing her job because of the quality of the applicant’s Arabic language skills and that the passages also recorded unclear evidence and unresponsive answers. The applicant submitted that the Tribunal did not inquire into these problems but, instead, moved on to the next question regardless of the apparent communication difficulties.
The Tribunal’s task was to conduct a review and it took the necessary steps to complete that task. To the extent that interpretation difficulties became apparent at its hearing, the Tribunal enabled clarification of those matters. It can be inferred that the Tribunal was, not unreasonably, satisfied with the opportunities that it had provided to the applicant to communicate his claims on matters it considered relevant. However, recognising that some of those matters might not have been resolved to the applicant’s satisfaction, it twice invited him to make submissions after the hearing in relation to them.
That was an invitation which the applicant accepted. In his post-hearing submission his advisers relevantly argued:
The Applicant reiterates that the pamphlets did encourage individuals not to vote. The Applicant notes that he stated on numerous occasions that he did not believe in the Islamic Republic of Iran and wanted to make sure people did not support the oppression that was occurring. We note that the applicant advised that he had indicated at the beginning of the interview that he was encouraging individuals not to vote. Furthermore, we note the interpreter indicated that the applicant may have previously disclosed such information however she may not have accurately conveyed what he was saying. Upon listening to the recording with the assistance of a native Arabic speaker, it is apparent that the applicant continually submitted that the pamphlets encouraged individuals not to support the regime. The Applicant instructs that when he stated that they advised people not to support the Iranian Regime, he meant the [sic] discouraged them from voting.
We respectfully submit that it would be unfair to discount the genuineness of the applicant’s claim on the basis that the Tribunal did not believe he disclosed at the beginning of the hearing that the pamphlets discouraged people from voting. It seems that the applicant’s failure to explicitly submit early in the hearing that the pamphlets encouraged individuals to boycott the election was nothing more than a communication issue. Further, the applicant did clearly signify that the aim of the pamphlet distribution was to encourage individuals not to support the regime.
Plainly the applicant’s advisers had reviewed the sound recording of the Tribunal hearing with the assistance of “a native Arabic speaker” and were not moved to comment on the quality of the interpretation at the Tribunal hearing other than to the extent of those comments in the post-hearing submission.
When conducting a hearing, the Tribunal is not obliged to prompt or stimulate an elaboration upon which the applicant chooses not to embark: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 per Gummow and Heydon JJ at 1919 [58], Gleeson CJ agreeing at 1910 [1]. It is for an applicant to advance whatever evidence or arguments he or she considers relevant to the claim for a protection visa. The Tribunal must then decide whether that claim is made out: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gummow and Hayne JJ at 576 [187], Gaudron and Kirby JJ agreeing at 546 [90] and 584 [212] respectively. The inquiries which the applicant argues should have been undertaken by the Tribunal could have been undertaken just as well by him or the adviser who assisted him at the hearing or by the provision of expert translation evidence in the post-hearing submissions. The Tribunal does not fail in its duty of review by not making inquiries which an applicant is also reasonably able to undertake effectively. Consequently, the Tribunal had no obligation in this case to inquire into the adequacy or accuracy of the interpreter and so the fact that it did not did not amount to a failure to discharge its statutory duty of review, in the sense discussed in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]-[26].
In any event, there was no evidence of a persuasive nature that the applicant was, in fact, denied a real and meaningful hearing by reason of interpretation deficiencies. This was because no person expert in the English and Arabic languages gave evidence that the interpreter at the Tribunal hearing had actually made a mistake. The applicant relied on the above passages from the transcript of the Tribunal hearing to raise questions concerning whether a legitimate concern might have existed, during the Tribunal hearing, that the translation was inadequate or incorrect but it is not possible to determine, from that material alone, whether such a concern was well-founded.
In SZIAI at 1129 [25]-[26], the High Court found that, where there is no evidence to indicate that any further inquiry could have yielded a useful result, the Tribunal does not err if it does not make such an enquiry: SZTDD v Minister for Immigration and Border Protection [2016] FCA 136. In this case, because there was no expert interpreter evidence to show that there had been a material inadequacy in the interpretation at the Tribunal hearing, there is no proper basis to conclude that inquiries of the sort propounded by the applicant could have yielded a useful result and consequently that the Tribunal erred because it did not make them.
The applicant also submitted that the deficiencies in the interpretation had a material effect on the Tribunal’s assessment of his credibility, which was negative. He argued in his written submissions:
The proceedings require an interpreter to facilitate communication. It is, in part, through the process of the personal interview that the Tribunal assess the reliability of the Applicant as a witness. This assessment, evaluation and impression of the Applicant occurs through the process of questioning and answering. If the process of communication is flawed and riddled with inaccuracies it must be abandoned. In this case the interpreter indicated that she could have incorrectly translated a key piece of evidence regarding the voting. Once alerted to the difficulties in communication, the Tribunal in this case ought to have explored whether there was understanding and ought to have revisited the question posed at the commencement of the proceedings, which was whether the interpreter and the Applicant understood each other.
Instead the Tribunal suggested that the advisor could listen to the recording and provide further submissions if there were any inaccuracies. This does not address or cure the problem, because by the time the hearing has concluded the Tribunal has formed its impression of the Applicant.
The difficulty with this submission is that the applicant has not demonstrated that there were any material inadequacies in the interpreter’s translations. As a result, it has also not been demonstrated that any error attaches to the Tribunal’s credit findings for the reasons alleged.
Nor, in the circumstances, was it unreasonable of the Tribunal to not adjourn its hearing to pursue the inquiries pressed on this Court by the applicant. Given the nature of the issues which the applicant pointed to in the transcript, the manner with which they were dealt at the Tribunal hearing and the Tribunal’s invitation to the applicant to make submissions on the quality of interpretation, I am not persuaded that no reasonable decision-maker would have acted as the Tribunal did in relation to those matters. Moreover, no adjournment was sought even though the applicant was represented at the hearing.
In any event, even if my conclusion on that question is wrong, it was not demonstrated that any practical unfairness flowed from the hearing proceeding. That finding is a consequence of there being no evidence that the interpretation at the Tribunal hearing was inadequate in any material way and that an adjournment had been necessary in order that applicant’s hearing could be real and meaningful.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated
Consequently, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 24 March 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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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