WZAOP v Minister for Immigration - [2011] FMCA 870

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOP v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 870

MIGRATION – Review of decision of IMR – whether applicant entitled to receive translated copies of first IMR decision – whether applicant was entitled to advance copies of independent country information – where applicant had representation – whether interpretation errors created jurisdictional error.

Plaintiff M61/2010E v Commonwealth of Australia [2010] 85 ALJR 133
SZQBV & Anor v Minister for Immigration [2011] FMCA 727
SZPAC v Minister for Immigration& Anor [2011] FMCA 517
Darabi v Minister for Immigration & Anor [2011] FMCA 371
Perera v Minister for Immigration (1999) 92 FCR 6
SZGSI v Minister for Immigration and Citizenship [2009] FCA 200
SZJZS v Minister for Immigration & Citizenship [2008] FCA 789
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 230

Applicant:

WZAOP

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 150 of 2011

Judgment of:

Raphael FM

Hearing date:

24 October 2011

Date of Last Submission:

24 October 2011

Delivered at:

Darwin

Delivered on:

24 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr S Lee

Counsel for the Respondent:

Mr T Anderson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant shall pay the costs of the Respondent fixed at $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

PEG 150 of 2011

WZAOP

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

WENDY BODDISON, IN HER CAPACITYY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is a Vietnamese citizen who arrived in this country by boat sometime prior to 5 October 2009 and has had her claims to be a person to whom Australia owes protection obligations assessed in accordance with the procedures in force for offshore arrivals. Those procedures involve an assessment by a person called a Refugee Status Assessment Officer, usually an employee of the Commonwealth, and where that assessment is unfavourable to an applicant the applicant has the right to ask for a review of the assessment by a person known as an Independent Merits Reviewer. This is what occurred in the instant case. But after the Independent Merits Reviewer had made his decision the High Court of Australia determined that such persons as the applicant were entitled to procedural fairness in regards to their assessments, and that where a procedural fairness was not given judicial review through this court could be invoked; Plaintiff M61/2010E v Commonwealth of Australia [2010] 85 ALJR 133 (“M61”). The decision of the first IMR was considered and it was decided that a further independent merits review should be made of the decision of the RSA. The second IMR interviewed the applicant on 15 March 2011 in the presence of her adviser and an interpreter. On 1 May 2011 the IMR determined that the applicant was not a person to whom Australia owed protection obligations and so advised the Minister.
The applicant had put forward a number of claims which she said indicated that she had a well founded fear of persecution for a convention reason should she be required to return to Vietnam. Principally, these revolved around the fact that her Ho Khau or identity document had been taken from her as a result of an incident while she was being employed in Saigon. She said that she had returned to her home village in the Mekong Delta and sought to have the Ho Khau, which originated from there, restored. She tells that this was not permitted. There were some conflicting statements about the reason for this. First it was suggested by her that she had left that village too long ago and then it was suggested that not only had she left the village too long ago but also she had come from a family of persons who were inimicable to the regime, her father having been a soldier in the South Vietnamese Army. It was said that as a result of her failure to obtain a new Ho Khau she was going to suffer persecution because she was unable to obtain proper employment or access the social security net that was available to Vietnamese citizens, including health.
I do not need to go into any greater detail about the applicant’s claims because this is not one of those cases where it is suggested that the claims were not properly considered by the IMR. Rather faults are alleged with the documentation that was provided to the applicant, with the interpretation that she received and the independent country information relied upon by the IMR. At the hearing the whole of paragraph 3 of the amended application was removed.
The grounds of application which remain are three fold. The first is:
“I asked for a Vietnamese translation of the rejection letter, but it was not provided. Not knowing why it was rejected, I could not prepare for the review. This is a lack of natural justice.”
As the matter was addressed by Mr Lee, both in his helpful written submissions and orally, the complaint is not so much that the rejection letter was not translated but that the decision of the first IMR was not provided to the applicant in a translated form. She argued that had this occurred she would have been better prepared for the second IMR interview. The difficulty I have with this argument is that when the first IMR decision was given there was no suggestion that another IMR would occur. The applicant was being given a determination on an administrative matter in Australia and there really is no obligation upon administrative tribunals or courts of this country to provide parties who may not speak English particularly well or even at all with translated copies of their reasons; SZQBV & Anor v Minister for Immigration [2011] FMCA 727 at [28-29].
There is an additional reason why I do not believe that it is a jurisdictional error to fail to provide a translated copy of the reasons in a case such as this where those reasons may be considered by another IMR, and that is where, as in this case, the applicant herself is assisted by a competent migration agent or solicitor. In the instant case the agents had provided the first IMR with her submissions and attended with the applicant at the second IMR hearing. There could be no doubt (or perhaps, more accurately, there is no evidence to suggest otherwise), that the representative had not read the first IMR report. The applicant does not say that the representative did not discuss this with her and I think it is a reasonable inference to make that this was done.
The second ground is a compendium of grounds, 2(a), (b), (d) and (e) of the amended application. It is that:
“The second respondent did not afford procedural fairness to the applicant:
(a) procedural fairness required the second respondent to take all reasonable steps to ensure that all reasonably available evidence was available to the applicant in exercise of the applicant’s right that the second respondent’s findings be based on evidence.
(b) procedural fairness required the second respondent to identify to the applicant the independent evidence and country information she relied upon in forming her views on Vietnam, inter alia, the availability and ease or otherwise of obtaining household registration (Ho Khau) in such a manner which made the information relied upon by the second respondent available to the applicant for consideration where that information could either be found on the internet or otherwise provided copies to the applicant.
…
(d) Other than the material indicated at an earlier stage of 15 March 2011 IMR interview, the second respondent did not identify or otherwise make available country information she relied on and referred to in her report dated 1 May 2011.
(e) The second respondent did not identify or provide to the applicant copies of the country information that she relied on before the interview of 15 March 2011.”
The independent country information to which these grounds refer is information referred to at [79] to [82] of [CB 208]. It is all information relating to persons with a bad family background and the thrust of it is that whilst this was a problem in Vietnam it has not been for some considerable time.
I am satisfied from my perusal of the decision record that the question of a bad family background was discussed with the applicant, as was the question of illegal departure from the country, which was another matter in respect of which country information was utilised. References to this are found at [62] and [65] of [CB 205] and in the absence of a transcript I must accept the best evidence we have in the decision record that the matters were brought to the attention of the applicant.
To the extent that the applicant argues that not only should the information be brought to her attention but that she should be given copies of it prior to the hearing, I have to rely upon the views expressed by me in SZPAC v Minister for Immigration& Anor [2011] FMCA 517

in which I made reference specifically to the views expressed by the High Court in M61 and those of Nicholls FM in Darabi v Minister for Immigration & Anor [2011] FMCA 371.
There is to my mind no obligation on the part of IMR to provide an applicant with this type of information either before a hearing or to provide the actual information itself at the hearing. It is sufficient that the gravamen of that information be put and that the applicant have a proper opportunity to comment upon it. I can imagine what would happen if every piece of country information that might possibly be relied upon had to be copied, shown to an applicant, translated and then comments awaited.
The third ground of application made orally was that:
“[the applicant] was unable to effectively participate in the interview process during the IMR due to interpretation difficulties.”
It is well accepted that a failure to interpret adequately the questions and answers that are put and responded to in an administrative situation such as this can produce a failure to provide an applicant with procedural fairness or a situation where the administrative officer herself is unable to carry out the task required of her because she just does not have before her the proper information; Perera v Minister for Immigration (1999) 92 FCR 6. The current law on this subject is that it can be summed up by saying that it is not every failure of translation that creates a jurisdictional error; there must be evidence of a real failure of communication between the administrative officer and the person that he or she is interviewing; SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 at [28]; SZJZS v Minister for Immigration & Citizenship [2008] FCA 789 at [33]; Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 230 at [18-22].
The evidence that is before me is in the form of an affidavit of Uyen Loewald. Ms Loewald is a person of Vietnamese origin and a registered interpreter. Her affidavit indicates that she is very critical of the interpreter who carried out the interpretation in both this applicant’s first and second IMR interviews. She provides in her affidavit as the basis for her criticism excerpts from the first 10 minutes of the second IMR. These early discussions deal with the nature of the assessment and ask some general questions as to privacy and the applicant’s understanding of the interpreter. They do not really address any serious inconsistencies between relevant evidence given by the applicant and what was interpreted, nor do they give any relevant instance of questions asked by the IMR that were misinterpreted to the extent that the response received by the IMR may have caused her to make an error in her assessment of the applicant’s truth or understanding of her claims.
Those are the sort of things that one needs to have in order to make a finding consistent with Perera that the interpreting services are so damaged that the IMR could not properly carry out her function. I do not believe that it is proper to draw an inference from the first 10 minutes of a hearing that such failures have occurred, which is what I am being asked to do. I agree that the first 10 minutes of interpretation does contain some evidence of a lack of understanding of some of the technical terms used by the IMR in relation to her duties, but as I note from the affidavit of the applicant herself, sworn on 14 September 2011 and filed on 23 September:
“I understood the interpreter but it appeared to me that when some English words were put to her, she could not put into Vietnamese for me … she relied on electronic dictionary from time to time.”
This statement from the applicant herself seems to indicate to me that the gist of the questions being put to her by the IMR was understood and as I said, in the absence of any specific complaints I would find that this ground of application cannot be made out.
In those circumstances I am unable to find that the IMR fell into jurisdictional error in the manner in which she came to her decision in relation to this applicant. The application is dismissed and the applicant must pay the respondent’s costs which I assess in the sum of $6,240.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 9 November 2011