VWFY v Minister for Immigration - [2005] FMCA 408

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWFY v MINISTER FOR IMMIGRATION

[2005] FMCA 408

MIGRATION – Refugee visa – whether language interpretation at hearing shown to be defective – whether breach of procedural fairness because of defective language interpretation – whether Tribunal obliged to invite applicant to comment on intended rejection of evidence – whether manifest unreasonableness shown – whether Tribunal misconstrued applicants claims.

Migration Act1958(Cth)
Judiciary Act 1908 (Cth)

VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
NAPS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 159
Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 A.D 773 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1

Applicant:

VWFY

Respondent:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 728 of 2004

Judgment of:

Phipps FM

Hearing dates:

10 & 11 February 2005

Last Submission:

10 & 11 February 2005

Delivered at:

Melbourne

Delivered on:

11 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr Condliffe

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Mr Heerey

Solicitors for the Respondent:

Blake Dawson & Waldron

ORDERS

The application filed 3 May 2004 is dismissed.
The applicant pay the respondent’s costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 728 of 2004

VWFY

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks to review a decision of the Refugee Review Tribunal pursuant to s.39 of the Judiciary Act 1908 (Cth).
The applicant is a citizen of Myanmar (Burma), of Baptist Christian religion and Kachin ethnicity. He arrived in Australia on 28 June 2002 on a visitor visa. On 6 August 2002 he applied for a protection visa. On 11 September 2002, a delegate of the respondent made a decision to refuse to grant the protection visa. On 27 September 2002, the applicant applied to the Tribunal to review the delegate's decision. By a decision dated 16 March 2004, the Tribunal affirmed the delegate's decision.
The applicant applied to the Federal Court of Australia on 3 May 2004 and on 8 June 2004, Kenny J. transferred the matter to the Federal Magistrates Court of Australia.

The applicant claims

The applicant claimed that in 1989 he commenced working for an employer who operated some ruby mines. In 1996 or 1997, his employer undertook the task of evangelising in a small isolated village. The applicant assisted.
Two weeks before the dedication of a church constructed by the employer in the village, the employer was arrested by the military and accused of buying and selling teak logs and not paying taxes. His licence to trade in teak was cancelled. The applicant stated that the real reason for the arrest of his employer was his role in converting the village to Christianity.
The applicant claimed that two weeks later, five employees including him were arrested by military intelligence personnel. They were taken to a detention centre. He was tied to a post and repeatedly stabbed, kicked and interrogated. He was asked questions about funds for the villagers and for the construction of the church. He was detained for about two weeks.
The applicant claimed he was released after payment of a bribe. He said he was warned not to help the villagers or communicate with them and stay away from them, never to engage in activities against the government and not to mention that bribes had been paid. He claimed that he was told that should any of these undertakings be broken, he would be automatically arrested.
The applicant claimed that he learned that the village had been burned down and the villagers had run away. He returned to work to look after his employer's business while the employer remained in jail.
The applicant claimed that in 1999 one of the villagers he had previously assisted sought him out. The applicant agreed to help him and his community by providing financial assistance. Shortly after, the applicant was advised that some Burmese soldiers had been asking for him. He became frightened and took himself and his wife to live at his mother-in-law's house. He stayed there about four months and then returned to the work area to find out what was going on. He was told the authorities had issued a warrant for his arrest. He returned to his mother-in-law's home.
He claimed that during the next 12-18 months, he was approached on a number of occasions by persons representing the Shan independence army seeking financial assistance. He provided some assistance but he was in a difficult position as his financial situation was quickly decreasing. About two months later, he was advised that a rebel had been captured by the army and had provided his name as a person who had assisted. The applicant also said that his employer had advised the authorities of the nature of his business operations and the role the applicant had played.
The applicant said that after this he disguised himself by growing a beard and wearing glasses. In May 2001, he succeeded in obtaining a passport after paying a bribe. He returned to his hometown to sell his house. Rebels again approached him for assistance. Through an agent he lodged an application for a visa at the Australian Embassy. He was issued with a visa and travelled to Australia. The applicant feared that if he were to return to Myanmar, he would be detained due to his past Christian activities with his employer and for assisting the rebels.

The Tribunal's findings

The Tribunal said it found difficulty with some aspects of the applicant’s evidence. It considered there were occasions when the applicant was asked direct questions but gave answers, which were not particularly responsive. The Tribunal considered that the applicant's evidence was unconvincing, particularly the timing of his alleged difficulties. The Tribunal said there was no basis on which it could be satisfied as to the period over which the applicant faced his alleged problems in Burma.
The Tribunal said that the documents submitted for the applicant to obtain a visitor’s visa to visit Australia where at significant variance from the applicant's claims. The Tribunal said:
The applicant and his adviser claimed that the documents are false: all are they creation of the agent who procured the applicant's visa for Australia. But the detail of the documents is impressive; as noted above, the documents suggest a story altogether different from the one told by the applicant. Moreover, the applicant’s and his sister's different explanations as to the information they provided to the agent do not allow the Tribunal, which regards the documents as being complex and rich in detail about the applicant circumstances, to accept that the documents are the forgeries they are claimed to be.
The Tribunal concluded that the time of the applicant’s arrest, some two weeks after his employer’s arrest, should have been late 1997 or, at the latest, mid-1998. The Tribunal said that if it were to accept that the applicant was so arrested, it was not satisfied that the arrest caused him to be of ongoing adverse interest to Burmese authorities. The Tribunal referred to submissions made by the applicant’s adviser and, concluded that it did not accept that the applicant faced a real chance of persecution arising out of his religious activities, his association with his employer or his arrest in 1997/1998.
The applicant claimed that in 1999, an arrest warrant was put out against him and that as a result, he remained on the run in hiding from the authorities for some three years. The Tribunal said there is a substantial question as to how the applicant was able to survive at least three years, without salary, while on the run and make regular payments to the Shan State Army and for whom he claimed to have bought medicine on the black market. The Tribunal said there was also a question as to how the applicant continued to travel around Burma and how he paid a bribe to an agent in May 2001 for his passport.
The Tribunal said that it did not accept that the applicant provided money to the villagers, that an arrest warrant was put out against the applicant, or that the applicant was on the run and in hiding because he was of adverse interest to the authorities, or that he donated money to or bought medicine for the Shan State Army.
The Tribunal rejected the evidence, contained in a letter, of a witness, that the applicant disappeared twice from her village because the head of the village tried to get the applicant to donate money after being released from prison and then later forced the applicant to donate enough money to build a temple or face arrest by the military for giving support to the Shan rebel group. The Tribunal considered such claims were inconsistent with the applicant’s claims and evidence and did not outweigh the problems the Tribunal found with the applicant’s evidence.
The Tribunal accepted that the applicant needed the services of a broker to secure a passport. The Tribunal referred to information that bribery is common practice in Burma.
The Tribunal did not consider that the applicant’s involvement in some anti Burmese government activities in Australia would give him a profile which might give rise to a real chance of the applicant being persecuted on his return to Burma. The Tribunal rejected the applicant’s evidence that Burmese authorities call on his parents all the time to learn of his whereabouts and his activities. It rejected the claim that his family has problems with the Burmese authorities.
The Tribunal referred to the applicant’s sister’s claim that the applicant faced being blackmailed by people in the village if he returned. The Tribunal was satisfied that if the applicant was blackmailed it was not for a Convention reason.

The applicant’s arguments

The applicant alleges breach of procedural fairness. The applicant’s evidence at the Tribunal was given through an interpreter. The applicant alleged that the interpretation was inadequate.
Section 425(1) of the Migration Act1958 (Cth) provides that an applicant is to be invited to appear at a hearing. Section 427(7) provides that if the person is not proficient in English an interpreter may be used.
The effect of these sections is that if an applicant is unable to give evidence in English, an interpreter must be used. The interpretation must be adequate. It must be adequate so that an applicant is able to present his or her case. Otherwise, an applicant could be deprived of the opportunity to give evidence. (Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 A.D 773, Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188, Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1).
Section 420A of the Migration Act provides for the Principal Member of the Tribunal to give written directions for the conduct of reviews by the Tribunal. Paragraph 22 of Practice Directions by the Principal Member dated 4 July 2003 gives directions in respect of interpreters.

It says that where possible, the Tribunal will engage interpreters who had obtained the "interpreter" level accreditation from the National Accreditation Authorities for Translators and Interpreters, Australia (NAATI).
The interpreter engaged for the hearing was not accredited by NAATI. The form for Interpreter Booking Request had provision for certain matters to be completed if an accredited interpreter was not available and for the member to sign. None of this was completed.
Section 420A(3) provides that the Tribunal shall, as far as practicable, comply with directions. However, non-compliance with any direction does not mean that the Tribunal's decision on a review is an invalid decision. The applicant’s submission was not that there was a defect in the hearing because an accredited interpreter was not used, but the qualifications of the interpreter were put as part of an argument that the interpretation had been unsatisfactory.
The applicant’s submission is that a review of the transcript demonstrates that at a number of points, there were difficulties in interpretation resulting in misunderstanding and nonsensical responses to questions put by the Tribunal. Supplementary contentions of fact and law on behalf of the applicant set out in detail the allegations.
The transcript of the hearing shows that at the commencement of the applicant's evidence, the Tribunal member asked the applicant if he could understand the interpreter all right and the applicant responded that he did. The Tribunal member asked the interpreter if he could understand the applicant and the interpreter responded he did.
The applicant does not rely upon evidence of a translation of the tape of the hearing to demonstrate that there was misinterpretation. The submission relies upon a reading of the transcript. The question then is does a reading of the transcript demonstrate that there were problems with interpretation?
The question is whether the matters which are pointed to on behalf of the applicant are part of the normal process of the giving of oral evidence in question and answer form or whether they point to a problem with interpretation. Whether, what the submission describes as incomprehension, mistake, unclear response or intervention by applicant or adviser is the sort of thing that happens in the normal course of giving of oral evidence or whether they show problems with interpretation.
A reading of the transcript does not show any thing beyond what might be expected. For instance, one of the matters pointed to is the interpreter asking for clarification of a question by saying "sorry sir". An example appears in the Supplementary Court Book page 17 line 36;
DR MOLLER: But did you agree that those people needed to be converted from animists into Baptists. Is that right?
INTERPRETER: Sorry sir?
DR Moller: Your view was that these people in the village needed to be converted from animists into Baptists.
INTERPRETER: Yes, our main idea is to make them Baptists.
This does not show that the interpreter was having difficulty understanding the Tribunal member. When the question was repeated the interpreter responds to the question. The interpreter's "sorry sir" indicates no more than a request for repetition.
Passages where there are mistaken, unclear and indirect responses as described in the submission can be explained in the way the Tribunal does. The Tribunal considered there were occasions when the applicant was asked direct questions but gave answers which were not particularly responsive. There are passages in the transcript where there are responsive answers. An example is the passage that the extract above is taken from. The Tribunal was asking the applicant about evangelising in the village near his employers mine. The applicant gives a series of clear and responsive answers.
One of the passages the Tribunal might have had in mind when it referred to answers which are not particularly responsive is a passage in the supplementary court book pages 12-14. It is a passage which the applicant's Supplementary Contentions of Fact and Law describe as confused on a material point concerning the post arrest period 1999-2000. A point which the Tribunal member was pursuing was how, during the period the employer was imprisoned, the applicant managed the mine when he himself was in trouble with the authorities and needed to be able to pay bribes to allow the mine to operate. A fair reading of the passage is that the applicant had difficulty in answering the detail contained in the questions consistent with the claims he had already put. A likely explanation is that he was trying to avoid having to deal with the detail, in other words, his answers were not particularly responsive. This is a far more likely explanation than problems with interpretation.
At the hearing, no objection was taken to the standard of interpretation. The applicant, his sister, and the migration agent representing the applicant were present. All three were present at the commencement of the hearing. The Tribunal member made some introductory remarks and explained how the hearing was to be conducted. Both the applicant and his sister were sworn at the commencement of the hearing. The Tribunal member asked the applicant’s sister if she was comfortable with English. She responded:
A little bit, yes. I've been here about eight years, so a little bit. But everything, so I'm not very fluent in it.
A similar exchange took place between the Tribunal member and the applicant's sister at the commencement of her evidence. She said that if there was something difficult and some word she didn't understand she would ask the interpreter. The transcript of the applicant's sister's evidence shows no apparent difficulty by her in giving evidence.
When the sister's evidence concluded, the Tribunal member said to the applicant:
Thanks. Well, Mr.[ ], have you been able to sort of think about the issues that I raised with you before the break?
The transcript then records the interpreter translating the applicant as saying:
There are few things that I want to explain.
The Tribunal member responded:
Please, by all means.
The applicant then gave an explanation of a number of matters. No difficulty in interpreting or understanding is apparent.
The applicant offered no evidence that he had any difficulty in understanding the interpreter or that his answers, as they appear, interpreted, in the transcript were wrong.
The matters put on behalf of the applicant do not show that there was a problem with interpretation. The claim of breach of procedural fairness on this basis is not established.
A further ground of procedural fairness alleged is the Tribunal failed to inform and invite comment from the applicant relating to its rejection of the evidence, contained in a letter of a witness, that the applicant disappeared twice from her village.
In NAPS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 159, Allsop J said at [38];
The right to procedural fairness does not include a requirement to be informed of, and have an opportunity to deal with, the mental processes or process of reasoning used by the decision-maker to come to his or her decision: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591-92 and cf Kioa v West (1985) 159 CLR 550, 587
The Tribunal considered the claims made in the letter were inconsistent with the applicant's claims and evidence and did not outweigh the problems the Tribunal found with the applicant's evidence. The letter was part of the evidence put before the Tribunal by the applicant. That the Tribunal would consider the letter along with other evidence and compare the contents of the letter with other evidence is part of the normal process of reasoning used by a decision maker. The applicant had the opportunity to make submissions about the contents of the letter along with the other evidence. The basis on which the Tribunal rejected the evidence contained in the letter was part of the mental processes or process of reasoning the Tribunal used to come to its decision and was not something it was required to reveal to the applicant prior to the publication of the decision. There was no breach of the requirements of procedural fairness.

The applicant claims that the Tribunal made findings of fact which were not supported by probative material or logical grounds or that no reasonable person acting within jurisdiction according to law could have reached.
Want of logic in the reasoning of the Tribunal is not an available ground for review, VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18]. A decision that is manifestly unreasonable, that is, so unreasonable that no reasonable person could have come to it may suffer from jurisdictional error, Re; Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [34-37], McHugh and Gummow JJ. Their Honours accepted the proposition as correct for the purpose of the appeal they were considering, and the same may be done in this case.
The amended application and the applicant's contentions set out a number of complaints.
The Tribunal's treatment of the discrepancy between the applicant's claims on the one hand, and on the other hand the information contained in documents submitted in Rangoon for the applicant to obtain his visitor’s visa is said to be irrational (Amended application, 5 a). The Tribunal said;
Moreover, the applicant’s and his sister's differing explanations as to the information they provided to the agent do not allow the Tribunal, which regards the documents as being complex and rich in detail about the applicant circumstances, to accept that the documents are the forgeries they are claimed to be.
For the applicant, it was argued that, for a number of reasons, the more reasonable finding is that the visa application particulars were falsified and that there was lack of logic in the Tribunal's reasoning. That is not correct. As a matter of logic, it was open to the Tribunal to prefer the version of events contained in documents supporting the applicant's visitor visa application rather than later conflicting information provided in support of his protection visa application. There is no lack of logic or unreasonableness in the Tribunal's findings. The Tribunal was entitled to reject the applicant's claim that the documents were not genuine and to conclude from the nature and detail contained in them that the information they contained was genuine.
The next ground (5b) criticises the Tribunal's finding that after the applicant had come to the attention of the authorities because of his evangelising he did not continue to face a real chance of persecution arising out of his religious activities. The applicant's contentions submit that the applicant's claim is sequentially consistent. They submit that the question was not adequately addressed by the Tribunal because while the Tribunal appeared to accept the fact that the arrest and imprisonment did occur in late 1977, or at the latest, mid 1988 because of the applicant's evangelising in 1996 and 1997, the Tribunal did not adequately deal with implications of this.
This is a submission which goes only to the merits of the Tribunal's decision. It does not show the logicality of reasoning and certainly not manifest unreasonableness.
Two grounds (5c & 5f) attack the Tribunal's finding that it did not accept that the applicant faced a real chance of persecution arising out of his religious activities, his association with Joseph or his arrest in 1997/1998. The applicant's claim was that in 1999, an arrest warrant was put out against him for giving money to the people of a destroyed village. The Tribunal considered that the applicant's claim of being able to pay money to the Shan State Army while on the run from the authorities did not make sense. The Tribunal did not accept that the applicant provided money to the villagers, that an arrest warrant was put out against him or that he was on the run and in hiding because he was of adverse interest to the authorities or that he donated money to or obtained medicine for the Shan State Army.
The submission is that it was reasonable to conclude to the contrary. This again is an attempt to argue the merits of the case. There is no demonstration of lack of logic or reasonableness in the Tribunal's approach.
The next ground (5e) attacks the Tribunal's finding that it was difficult to see how the applicant survived for at least two to three years and then pay the bribe to obtain a passport in 2001. It is alleged that this part of the decision apparently fails to take into account relevant considerations in the form of the evidence that he received help from his sister, from friends as well as the sale of this house. It is claimed that the assistance received from his sister is both deeply relevant and clearly ignored.
It does not follow that because there is no specific reference to any particular piece of evidence that the Tribunal has ignored it. The ground is another attempt to reargue the merits of the case. No lack of logic or unreasonableness is shown.
Ground (5g) is that the rejection of a letter supportive of the applicant was not logically consistent. One of the reasons the Tribunal gave for rejecting it was that it was inconsistent with the applicant's claims and evidence. It was submitted, that if that is so, then the Tribunal must logically be accepting the applicant's version to the extent of any inconsistency and cannot logically use that finding for going on to say that the letter does not outweigh the problems the Tribunal found with the applicant's evidence.
It is not illogical for a decision maker to reject one piece of evidence because it was inconsistent with the applicant's claims and evidence and at the same time to reject the applicant's claims and evidence. A decision maker may find evidence from one source inconsistent with evidence from another source and at the same time reject both lots of evidence as being true.
There has been no jurisdictional error as a result of the Tribunal's reasoning process.
Paragraph 6 of the amended application alleges that the Tribunal misconstrued the applicant's claim and thereby identified a wrong issue, asked itself a wrong question or relied upon irrelevant material or ignored relevant material. The allegation is particularised in two ways.
The first refers to a statement by the Tribunal in the first paragraph on page 17 of its reasons;
The Tribunal rejects the applicant's claims as having been made to support his application for a protection visa.
The applicant's contentions say that this assertion is repeated in the third paragraph. In that paragraph the Tribunal says "
It finds that such a claim has been made to support his application for a protection visa.
The argument is that the fact that the applicant's claims are made in support of his application is not by itself a reason for rejecting the claim. The contentions submit that there would seem to be other reasons that would need to apply to reject the claims.
The submission misreads what the Tribunal has said. The two statements are findings by the Tribunal, not the reasons for those findings. The two statements are a finding by the Tribunal that the applicant has made up the claims to support the application for a protection visa. Its reasons for this finding are set out in the surrounding paragraphs. The Tribunal did not accept the applicant's claims for the reasons again. The Tribunal did not misconstrue the applicant's claim.
The second matter particularised is that the Tribunal's conclusion that the applicant's claim that an arrest warrant issued against the applicant is implausible because "the applicant knows virtually no detail about the alleged warrant" misconstrued what the applicant was claiming. The contentions argue that the fact that the details of the warrant were not known is consistent with the applicant's claim that he had never seen the document but merely been informed of its existence. The submission is made that the fact that such details are not known is not sufficient reason to conclude that they do exist.
What the Tribunal said was:
the applicant knows virtually no detail about the alleged warrant and has only the alleged word of mouth advice that such a warrant was in force. Lacking any further evidence of the fact of such a warrant being issued, and considered with his other claims of his activities while on the run, claims the Tribunal has rejected, the Tribunal rejects his claims of a warrant for arrest being put out against him.
The submission seeks to focus on one small part only of the words the Tribunal used. The Tribunal did not treat the applicant's lack of knowledge as a credit issue, which is what the argument seeks to do.

It took the paucity of the evidence of existence of a warrant along with other matters as a basis for a rejecting the applicant's claim that a warrant for arrest was put out against the applicant. The Tribunal did not misconstrue the applicant's claim. The Tribunal understood the applicant's claim about the warrant and made a finding of fact that there was not a warrant.
None of the alleged grounds of jurisdictional error are made out. The application is dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: