WZATU v Minister for Immigration
[2016] FCCA 2247
•7 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATU v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2247 |
| Catchwords: MIGRATION – Judicial review – procedural fairness – applicant required to give evidence in non-preferred language – whether applicant proficient in English – whether material unfairness in process. PRACTICE AND PROCEDURE – Extension of time to file application for judicial review – whether applicant fulfilled mandatory requirements for extension of time application – consideration of factors. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05 Federal Magistrates Court Amendment Rules 2005 (No.1) (Cth) Migration Act 1958 (Cth), Part 7, Division 4, ss.36, 65, 414, 422B, 424A, 425, 427, 474, 476, 477, 499, 501 Migration Legislation Amendment Act 2009 (No. 1) (Cth) |
| Cases cited: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185 MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 SZQUX v Minister for Immigration & Anor [2012] FMCA 700 SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 SZRBN v Minister for Immigration & Citizenship [2012] FCA 984 SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142; (2013) 219 FCR 212, (2013) 139 ALD 436 SZRUG v Minister for Immigration & Anor [2013] FCCA 142 SZTDM v Minister for Immigration & Anor [2013] FCCA 1130 SZTDM v Minister for Immigration & Anor (No. 2) [2013] FCCA 2060 SZTVA v Minister for Immigration & Anor [2016] FCCA 2005 SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 Tran v Minister for Immigration & Border Protection [2014] FCA 533 Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104 J Munkman, The Technique of Advocacy (London, Butterworth & Co, 1991) |
| Applicant: | WZATU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 50 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 July and 3 December 2014 |
| Date of Last Submission: | 3 December 2014 |
| Delivered at: | Perth |
| Delivered on: | 7 September 2016 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the First Respondent: | Mr P R Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) for an extension of time in which to lodge an application under s.476 of the Migration Act be granted, and time for lodging the applicant’s application be extended to 17 February 2014.
That a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal made on 17 December 2013.
That a writ of mandamus issue requiring the Administrative Appeals Tribunal to re-hear the application for review made by the applicant on 2 July 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 50 of 2014
| WZATU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 17 February 2014, the applicant seeks an extension of time under s.477 of the Migration Act 1958 (Cth) (“Migration Act”) (“Migration Act”) in which to file an application for judicial review, under s.476 of the Migration Act, of a decision of the second respondent, the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”) made on 17 December 2013 (“Tribunal Decision”). The Tribunal Decision is at Court Book (“CB”) 379-435. The Tribunal Decision affirmed the decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”, then the Minister for Immigration & Citizenship), dated 12 December 2012, refusing to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The application for an extension of time, and the substantive application were heard together, but are dealt with separately below.
Orders sought by the applicant
The applicant seeks the following orders:
a)that the time for making the application be extended under s.477 of the Migration Act;
b)that an interim order be made precluding the Minister from deporting the applicant;
c)the Tribunal Decision be quashed; and
d)a writ of mandamus be directed to the Tribunal or Minister, requiring them to determine the applicant’s application according to law.
The Minister opposes the making of the orders sought by the applicant.
Background
The background to the application is as follows:
a)the applicant is a citizen of Egypt who first arrived in Australia on a tourist visa on 4 June 2000: CB 28 and 189;
b)on 29 January 2001 the applicant was granted a Class UK (Partner) Subclass 820 (Temporary) visa (“Temporary Partner Visa”): CB 189;
c)the Temporary Partner Visa ceased on 8 October 2003 when the applicant was granted a Class BS (Partner) Subclass 801 (Permanent) visa (“Permanent Partner Visa”): CB 189;
d)the applicant was convicted on charges of fraud in 2001 and 2008: CB 14;
e)as a result of his fraud convictions and being sentenced to a term of imprisonment, the applicant’s Permanent Partner Visa was cancelled on 20 March 2012: CB 189;
f)on 12 March 2013 the applicant lodged an application for a Protection Visa (“Protection Visa Application”) with the then Department of Immigration and Citizenship (“Department”): CB 10-77;
g)the Protection Visa Application was accompanied by a statutory declaration made by the applicant setting out his claims to fear persecution if returned to his country of nationality: CB 78-83 (“March 2013 Statutory Declaration”);
h)the applicant was subsequently interviewed by an officer of the Department on 30 April 2013: CB 93 and 98;
i)on 14 May 2013 the applicant’s migration agent provided further information to the Department in the nature of Internet links, and a copy of a counselling assessment in relation to the applicant by the Association for Services to Torture and Trauma Survivors Inc (“ASeTTS”) detailing his post-traumatic stress conditions: CB 103-105 (“2013 ASeTTS Counselling Report”);
j)on 26 June 2013 the Delegate concluded that he was not satisfied that the applicant was a person to whom Australia has protection obligations under s.36 of the Migration Act and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth), and the Delegate’s Decision was to refuse to grant the applicant the Protection Visa: CB 142;
k)the applicant was advised of the Delegate’s Decision by letter dated 26 June 2013 sent to his migration agent: CB 109-112;
l)on 2 July 2013 the applicant made an application to the Tribunal seeking review of the Delegate’s Decision refusing to grant him a Protection Visa: CB 143-148;
m)by letter dated 17 July 2013 the Tribunal invited the applicant to appear before the Tribunal on 29 August 2013 at Sydney to give evidence and present arguments relating to the issues arising in his case: CB 164-166, but as a result of the applicant having been relocated to Perth, the Tribunal wrote again to the applicant on 29 July 2013 inviting him to a Tribunal hearing on 29 August 2013 in Perth: CB 181-183 (“Tribunal Hearing”);
n)on 27 August 2013 the applicant’s migration agent provided a written submission in support of the applicant’s claims: CB 276-323 (“Applicant’s Tribunal Submissions”);
o)the Tribunal Hearing on 29 August 2013 did not proceed: CB 326-327, and was rescheduled to 9 September 2013, when the applicant, who was at the Perth Immigration Detention Centre, attended by phone, with his representative who was in Sydney also attending by phone, with the Tribunal member sitting, and an Arabic language interpreter assisting, in the Tribunal’s Sydney office: CB 329-331;
p)on 11 September 2013 the Tribunal wrote to the applicant inviting him to comment on or respond to certain information referred to by the Tribunal: CB 343-354 (“Tribunal Letter”);
q)on 25 September 2013 the applicant’s migration agent provided a response to the Tribunal Letter: CB 358-363 (“Response to Tribunal Letter”); and
r)on 17 December 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 379 and 435 at [82]; and the Tribunal advised the applicant of the Tribunal Decision by letter dated 18 December 2013: CB 377-378.
On 17 February 2014 the applicant filed this application in this Court seeking an extension of time in which to file an application for judicial review of the Tribunal Decision.
Extension of time application
Grounds
The applicant’s grounds in support of the extension of time application are as follows:
a)the applicant is in immigration detention;
b)the intersection of the Christmas and New Year holidays between the Tribunal Decision on 12 December 2013 and the expiration of the 35 day time limitation; and
c)the difficulty for a person in immigration detention to access the internet and relevant materials (including legal materials).
Affidavit in support of application
The applicant also filed an affidavit sworn 14 February 2014 (“Applicant’s February 2014 Affidavit”) with the application in which he said as follows:
4.I am seeking an extension of time due to my inability to lodge the appeal on time due to my detention and the Christmas/New Year Holidays.
Applicant’s submissions in relation to extension of time
The applicant made no written submissions expressly in support of the application for an extension of time, save that the written submissions that he made generally addressed the issue of the merit of the proposed substantive application, the arguability of that merit, or whether there is a reasonable prospect of the proposed substantive application being successful, that being a factor in determining whether or to extend time: see [18] below, and his oral submissions at hearing did likewise.
Minister’s submissions in relation to extension of time
The Minister submits in relation to the extension of time that:
a)section 477(1) of the Migration Act provides that an application to the Court under s.476 of the Migration Act in relation to a migration decision must be made within 35 days of the date of the migration decision. That 35 day period can be extended under s.477(2) of the Migration Act if an application has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order;
b)as the date of the Tribunal Decision was 17 December 2013, the 35 day period for making an application under s.477(1) of the Migration Act ended on 21 January 2014. The applicant was therefore 27 days late in making his application;
c)the reasons given by the applicant in his application as to why it is necessary in the interests of the administration of justice to make an order extending the 35 day period are that he is in immigration detention, the Christmas and New Year Holidays, and the “difficulty for a person in detention to access legal materials, internet, etc”; and
d)on the basis of the applicant’s extension of time reasons, and having regard to the grounds of application as set out above, the Court should not be satisfied that it is necessary in the interests of the administration of justice to make an order extending the 35 day period for the making of the application.
Consideration – extension of time application
Legislative provisions – pre-requisite requirements
Section 477 of the Migration Act relevantly provides that:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit 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 Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The application was lodged 27 days outside the time period set by s.477(1) of the Migration Act. The application is therefore incompetent by virtue of s.477(1) of the Migration Act unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act.
In WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [10]-[12] per Judge Lucev (“WZASQ”) this Court observed as follows:
10 Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a) there has to be an application for an order to extend time;
b) the application for an order to extend time must be in writing; and
c) the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
11 … It is not open to the Court, whether by a Registrar or a Judge, even by consent, to make an order either waiving or avoiding the requirements of s 477(2) of the Migration Act 1958. There are no provisions of the Migration Act which allow a Registrar or Judge to do so. As the Federal Magistrates Court of Australia observed in SZRBN & Ors v Minister for Immigration & Anor: … [[2012] FMCA 384 (“SZRBN”)]
“[28] In my view the language of s 477(2) is plain. The relationship between its constituent parts, s 477(2)(a) and s 477(2)(b), is one of dependence for its engagement and operation of the latter on the former. I do not see that there is discretion for the court to consider the matter in s 477(2)(b) without an application pursuant to s 477(2)(a). This is not a matter as elsewhere in the Act where the court may act on its own motion (see for example s 486F(3)(a)).
[29] The application to the court is out of time. Notwithstanding that this is only by a matter of a mere three days, the only discretion available to the court to extend time is contained in s 477(2)(b) of the Act. The engagement of that consideration is dependent, or contingent, on the matter set out in s 477(2)(a). The applicants, despite ample opportunity, have not acted to comply with s 477(2)(a) of the Act.
[30] The application is not competent and the applicants have not taken the necessary and mandatory step to open the door to the only possible avenue to enable the application, as amended, to be made competent. Accordingly I will make an order dismissing the application as not competent. … [SZRBN at [28]-[30] per Nicholls FM] ”
12 In the absence of an application meeting the requirements of s 477(2) of the Migration Act 1958 an application for an extension of time under s 477(1) of the Migration Act 1958 is incompetent.
(An application for leave to appeal against SZRBN & Ors v Minister for Immigration & Anor [2012] FMCA 384 was dismissed by the Federal Court: SZRBN v Minister for Immigration & Citizenship [2012] FCA 984).
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides as follows:
(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104; FCR at 391 per Merkel J; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent dispensation under r.1.06(1) of the FCC Rules, the FCC Rules prescribe that there must be an explanation provided on affidavit as to, firstly, the delay and, secondly, why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
In Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [16]-[26] per Judge Lucev the history of amendments to s.477 of the Migration Act and r.44.05(2)(c) of the FCC Rules, and the enactment and amendment of the latter at the same time as related amendments to the Migration Act, was examined, and demonstrate that its purpose is to provide the factual foundation upon which the Court can judicially determine whether or not to make an order extending time for an applicant to make an application under s.476 of the Migration Act, and that the interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules appears to work in the following manner:
a)if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b)any waiver under r.1.06(1) of the FCC Rules of compliance with the requirements of r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jago JJ; SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c)the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i)the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii)the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii)an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv)the alleged jurisdictional error is either established (as in SZTDM v Minister for Immigration & Anor (No. 2) [2013] FCCA 2060) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time, for example, issues such as the explanation for the delay and prejudice to the respondent: see [18] below, subject to what was said by the High Court concerning the general principles in relation to extending time for prerogative relief applications, as to which see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866: (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”) and Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”).
In this case there is an explanation for the delay, and the Minister accepts that the reason for the explanation for the delay in the application for an extension of time also constitutes the applicant’s explanation as to why the interests of the administration of justice make it necessary for the Court to grant an extension of time: Ministers Outline of Submissions filed 28 July 2014 at [18]. The same logic applies with respect to the Applicant’s February 2014 Affidavit in relation to the explanation for the delay and the explanation of the interests of the administration of justice which make it necessary for the Court to grant an extension of time. In the above circumstances the Court does not disagree with the Minister’s characterisation of the content of the extension of time application and the Applicant’s February 2014 Affidavit as constituting both the applicant’s explanation of:
a)the reason for the delay; and
b)the interests of the administration of justice making it necessary for the Court to grant the extension of time sought,
and therefore the requirements of s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules have both been met by the applicant.
Factors for consideration in extending time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act in this Court are well-established, and are derived from the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 adapted to fit the particular requirements of s.477(2) of the Migration Act. Those factors include the following factors (which are not exhaustive):
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)whether the merits of the proposed judicial review application are arguable, or have reasonable prospects of success; and
g)any overriding general exercise of the Court’s discretion; and
The above factors have been frequently applied by this Court: see, for example, SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones (“MZZRO”); SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett.
Delay – extent and reasons
The law with respect to the delay in making an application, and in particular an application which seeks prerogative relief of the kind sought in this Court under the Migration Act, must have regard to the judgments of the High Court in Marks and Brisbane South Regional Health Authority. The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, in all but “very exceptional cases”, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
The above summary of the judgments of the High Court, applied by the Federal Court to a migration matter in SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 at [35] per Gilmour J (dismissing application to extend time to appeal where two years out of time), are binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ. The summary also demonstrates the error in the observations made in cases such as DZAFG v Minister for Immigration & Anor [2015] FCCA 168, SZTDM v Minister for Immigration & Anor [2013] FCCA 1130 and SZOLM v Minister for Immigration & Anor [2011] FMCA 305, where this Court (or its predecessor the Federal Magistrates Court) made observations that time might be extended notwithstanding extensive delay merely because the application for judicial review had arguable merit. That is not the law, and as Marks at [16] per McHugh J observes, limitation periods are to be rigidly applied in all but very exceptional cases where a court is considering prerogative relief, and thereby, as Brisbane South Regional Health Authority observes, an otherwise good cause of action may be defeated.
A further observation may be made: in Marks consideration was being given to the application of rules of court, whereas in s.477(1) of the Migration Act it is the Parliament which has specifically legislated the relevant time limit, representing therefore the judgment of Parliament as to how the welfare of society is best to be served: Brisbane South Regional Health Authority CLR at 553 per McHugh J. This must be afforded proper and due regard, for as much as rules of court must be obeyed: Marks at [16] per McHugh J, the rationale for obeying legislation enacted by Parliament representing the people as a whole must carry even more weight.
It is generally recognised that the longer the delay the more persuasive an explanation needs to be in order to justify an extension of time: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J (“Tran”).
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”). As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
SZSDA at [38] per Foster J, followed in MZZRO at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
There being no absolute right to legal representation for an applicant in Migration Act proceedings, lack of legal advice, or a lack of positive legal advice, is not of itself a sufficient excuse for failure to lodge an application for review within time: Tran at [35] per Wigney J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev.
The Court notes that the applicant does not assert that he was not aware of the relevant time limit, but relies upon factors in relation to his immigration detention to explain the delay. The Court also notes that it is an inherent part of the applicant’s case that he does not have language difficulties with English. Rather, he alleges a jurisdictional error by reason of the Tribunal directing that he speak in his original native tongue, Arabic, and use an interpreter in that language, when the applicant says that none was required. A lack of capacity to read and write English cannot therefore be part of the applicant’s case with respect to delay. The fact that the applicant was in immigration detention and might have had difficulty accessing the internet and relevant materials puts him in no different a position to any other person in immigration detention applying for a protection visa, the majority of whom (and on the Court’s observation the vast majority of whom) make application within the legislated limitation period. Even if it be recognised that there may be some difficulty in making an application from immigration detention, and in preparing the relevant affidavit, the period of five weeks allowed for an applicant to make the application and file the supporting affidavit might be said to be sufficient, at least in the view of the Parliament, for such an application, supported by an affidavit, to be made. There is a lack of evidence, either specifically or generally as to any difficulties said to have faced the applicant in the process of preparing the application and the Applicant’s February 2014 Affidavit whilst in immigration detention. There is no explanation of why a further period of one day short of four weeks was necessary to prepare the application and the Applicant’s February 2014 Affidavit, particularly where there is no explanation of the process followed by the applicant or the difficulties encountered by him in following that process.
The reference to the delay caused by the Christmas and New Year holidays does not appear to particularly assist the applicant, and certainly not in the absence of evidence as to what delay in his preparations whilst in immigration detention was caused by those holidays. The Court’s Registry was only closed on the statutory public holidays. Even allowing for some delay, of say a week, caused by the festive season generally, that does not explain a delay of almost four weeks.
The delay in this case is lengthy, but not excessive, but sufficiently lengthy to warrant an appropriate explanation for the delay. In all of the above circumstances the Court is of the view that there is no satisfactory explanation by the applicant for the delay of 27 days (or almost a further four fifths of the original limitation period), and that the length of the delay, although not excessive, is one that would ordinarily require a satisfactory explanation, and in its absence weighs against the grant of an extension of time in which to file the application.
Prejudice to the Minister and impact upon the applicant
There must be some prejudice arising in this case from the fact that the Minister might rightfully have thought that the applicant’s right to review the Tribunal Decision was at an end by reason of the limitation period having expired. In conventional parlance, the Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his. In those circumstances, there is additional prejudice by reason of the costs incurred as a consequence of the hearing of the matter taking place over two separate days.
The impact on the applicant of a failure to extend time for making the application is arguably considerable, as, for reasons set out below, the application raises an arguable case of jurisdictional error, and to deny the applicant the opportunity to put argument in respect of an arguable case of jurisdictional error to the Court, or where, as here, where that argument has been put, to deny it any effect by not granting the extension of time application, may be to deny the applicant the opportunity to establish that jurisdictional error, and to have his case remitted to the Tribunal for proper determination according to law. A failure to properly determine the application according to law may, if there are valid grounds for granting a Protection Visa (which is matter for the Tribunal), may expose the applicant to a risk of persecution in his home country. The potential for prejudice to the applicant thereby arising outweighs, in the Court’s view, the administrative and costs prejudice which the Minister might suffer in a case where the delay, although not satisfactorily explained, is not excessive.
Public interest and discretion otherwise
As to the interests of the public at large, there is nothing in the matter liable to excite the interests of the public at large, or which might warrant the exceptional exercise of the Court’s discretion to extend time for the making of the application.
Whether the grounds of review are arguable
In determining whether the merits of the proposed application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] per North J.
Grounds of review
The applicant sets out:
a)three grounds of review in the application filed 17 February 2014 (hereafter grounds 1-3 respectively); and
b)a further five grounds of review in his written submissions filed 22 July 2014 (“Applicant’s July 2014 Submissions”) (hereafter, grounds 4-8 respectively).
Each of the eight grounds is set out separately below and considered in the context of the extension of time application, and then, insofar as any ground is considered to be arguable, that ground is further considered.
Consideration of Ground 1 on extension of time application
Ground 1 is as follows:
1.The Tribunal build (sic) it’s (sic) opinion on speculation and not solid evidences as required by law.
On its face the Tribunal Decision is lengthy and detailed, running to some 57 pages and 285 paragraphs. In the course of the Tribunal Decision the Tribunal considered:
a)evidence in relation to proceedings related to s.501 of the Migration Act relating to the refusal of the grant of a visa if the Minister is not satisfied that a person passes the character test, including correspondence with the applicant in 2003 and 2011 from a Delegate of the Minister: CB 380-382 at [5]-[11];
b)evidence concerning a psychological assessment from a psychologist in 2007;
c)evidence concerning proceedings in the Administrative Appeals Tribunal following the cancellation of the applicant’s Permanent Partner Visa on 20 March 2012, and the applicant’s subsequent application to the Federal Court of Australia: CB 382-384 at [13]-[17];
d)evidence concerning the applicant’s application for the Protection Visa including a detailed setting out of the applicant’s written claims, the Delegate’s interview, a further submission dated 14 May 2013 from the applicant’s representative, a psychologist’s report and the Delegate’s Decision: CB 384-395 at [18]-[102];
e)evidence concerning the applicant’s application to the Tribunal to review the Delegate’s Decision, including setting out the applicant’s fears of harm, the applicant’s background and claims, including his claims of persecution arising out of imputed political opinion, religion, particular social group and whether or not he could obtain effective State protection, as well as his complementary protection claims: CB 395-399 at [105]-[144];
f)summarised in significant detail the evidence said to have been given by the applicant to the Tribunal Hearing: CB 399-411 at [145]-[200];
g)set out the content of a letter to the applicant written for the purposes of s.424A of the Migration Act on 11 September 2013, and the applicant’s response to that letter: CB 411-415 at [201]-[224]; and
h)considered country information from a variety of sources concerning the circumstances in Egypt, including the position of atheists in Egypt and returnees from Western countries: CB 415-418 at [225]-[231].
The Tribunal set out the relevant law in relation to the necessary degree of satisfaction for the grant of the Protection Visa, including reference to the relevant refugee criterion, the complementary protection criteria and the Ministerial direction made under s.499 of the Migration Act: CB 433-435 at [286]-[302]. The Tribunal also set out and clearly understood the law with respect to the assessment of credibility and claims made by an applicant: CB 418-419 at [233].
In the Tribunal Decision the Tribunal set out its findings and reasons including:
a)its approach to the assessment of credibility and the applicant’s claims by reference to the relevant law: CB 418-419 at [233];
b)whether or not the applicant was competent to give evidence in the proceedings: CB 419 at [234];
c)the Tribunal’s findings as to the applicant’s credibility, its findings in relation to specific matters related to the applicant’s credibility, the applicant’s responses to the s.424A letter, and each of the applicant’s claims generally for the purposes of assessing whether or not the applicant met the refugee criterion: CB 419-430 at [235]-[274];
d)considering the applicant’s complementary protection claim: CB 431-432 at [275]-[281], including the applicant’s claim of psychological harm: CB 431-432 at [278]; and
e)arrived at conclusions and a decision to affirm the Delegate’s Decision not to grant the applicant a Protection Visa having regard to its conclusions with respect to whether or not Australia had protection obligations under the refugee criterion and whether the applicant met the complementary protection criteria: CB 432 at [282]-[285].
The Tribunal’s finding as to the applicant’s credibility was most damaging to him, but also reveals the number of claims which the Tribunal considered in its subsequent reasoning. The primary finding with respect to the applicant’s credibility is at CB 419-420 at [235] and is as follows:
235. In the present matter the Tribunal is not satisfied as to the applicant's credibility. The Tribunal finds that the applicant has contrived all his claims and does not accept, for the reasons set out below, that he was engaged in any political activities in Egypt; he established a political movement and newspaper in Egypt; he organised demonstrations; he was detained and tortured by the Egyptian authorities including being forced to watch anyone being raped: any of his friends or colleagues were detained, tortured, committed suicide, were killed or compelled to leave Egypt; he was subjected to frequent or any reporting conditions or of any interest to the Egyptian authorities; he suffers from post-traumatic stress disorder because he was tortured; he did not disclose what happened to him in Egypt and all his political activities and family background in statements he made to the Department in September 2003 and October 2011 because he was ashamed as he had been raped; his lawyer did not ask him about anything that happened to him in Egypt or his lawyer advised him that he should not mention what happened to him in Egypt; his father and uncle held senior positions in the former government led by President Mubarak; his father and uncle were shot and murdered; he was discharged from military service after 1 month which was related to his political opinions; he had to pay any bribes to obtain a passport or to depart and enter Egypt; he was warned by any family member that he was of ongoing or continuing interest to the Mukhabarat, secret police or the Egyptian authorities; he wrote and published any articles in newspapers in USA and Egypt; his name is on a national database for people who are wanted by the authorities; he changed his name whilst in Australia so that he could return to Egypt without being noticed by the authorities; he was named by a prominent human rights activist Wael Ghoneim during interviews conducted by that person with Egyptian, Lebanese and or any media; he wrote the words or had any association with a song and video which was posted on YouTube that was critical of former President Mubarak; his family members in Egypt have been persecuted by the Egyptian authorities to put pressure on him or for any other reason; he will continue to engage in political activities if he returns to Egypt; he is an atheist and will engage in activities with other atheists; he will be considered as a non-believer and spy because he has been living in Western countries; he will be targeted because of his ideas about moderate Islam, freedom of speech, freedom of sexual preference, freedom of women's rights and Western-like democracy; he will express his opinions through social media on return to Egypt and face imprisonment; when he returns to Egypt his past activities will become known to the authorities and he will be monitored and killed; he will be detained on arrival and questioned and his identity and killed or disappeared: his whereabouts will quickly become known and extremist militant groups will persecute him; and he will be killed or persecuted by the Egyptian authorities, Mukhabarat, Muslim Brotherhood, Salafists and Muslim groups and individuals who do not tolerate his views. This also leads the Tribunal to find that the applicant is not a witness of truth and he is prepared to say anything if he believes it will give him an immigration advantage.
The above omnibus paragraph from the Tribunal Decision must be read in light of the Tribunal Decision as a whole, and in particular the subsequent findings and reasons where the Tribunal deals with each of the claims and matters in respect of which it found it did not accept the applicant’s evidence.
Subject to what is said in relation to the interpretation ground (ground 4 below: see [61]-[68] and [100]-[154] below), it is plain that the Tribunal Decision demonstrates a careful and thorough consideration of all of the applicant’s evidence and claims, before rejecting them, essentially on credibility grounds, with findings that the applicant contrived or fabricated all of his claims, was not a witness of truth and was willing to say anything if he believed it would give him an advantage in relation to his Protection Visa application: CB 419-420 at [235] and CB 429 at [269], and CB 420-428 at [236]-[268].
Generally, findings on credibility are matters for the Tribunal, not the Court: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ, but they do not thereby operate as a shield to protect the Tribunal’s decision-making process from scrutiny: see, for example, Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [78] per Robertson J (“SZRKT”), and subsequent observations in SZRKT at [119]-[121] per Robertson J.
The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J, and the Tribunal does not need to have rebutting evidence available before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J. Findings of fact made, including any assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s inability to be satisfied or otherwise of the applicant’s claims, were matters for the Tribunal to determine on the evidence before the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Based upon the evidence and material which was before the Tribunal (and setting to one side the issues that might arise from ground 4), and the Tribunal’s detailed and considered analysis of it, the conclusions reached by the Tribunal were reasonably open to it.
Consequently, on the basis of the evidence which was before it (and again setting to one side ground 4), ground 1 gives rise to no reasonably arguable case of jurisdictional error by the Tribunal in its consideration of the applicant’s various claims, or in the Tribunal’s conclusions that the applicant had contrived or fabricated all his claims and was not a witness of truth.
Consideration of ground 2 on extension of time application
Ground 2 is as follows:
2. The Tribunal build (sic) it’s (sic) opinion on reports published in 2010 way before the Egyptian Revolution in 2011.
Generally, the choice of country information and the factual findings arising from country information, where the country information is recent and the factual findings are, as here, open on the available material, are matters solely for the Tribunal as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.
The Tribunal’s consideration of country information at CB 415-418 at [225]-[231] demonstrates that the Tribunal had regard to a wide range of information about Egypt from a range of different sources.
An analysis of the Tribunal’s consideration of the country information shows 23 footnotes, which cite various reports and newspaper articles, both from Egypt and internationally, and which, on the Court’s analysis, can be broken down by year of publication as follows:
a)2010-2;
b)2012-5; and
c)2013-14,
with some references being repeated more than once in more than one footnote.
The Court notes that the two 2010 sources cited both relate to general information concerning the number of Egyptians living abroad, and the key concerns of those Egyptians living abroad, namely access to Consular services, assimilation of the second generation of Egyptians into the host countries’ culture, and the need for more cultural cooperation with Egypt and voting in Egyptian elections: CB 417 at [229]. Otherwise, the country information set out post-dates the Egyptian Revolution in 2011, and almost exclusively relates to issues associated with the Egyptian Revolution in 2011, unlike the 2010 information which simply is statistical information in relation to Egyptians who live abroad and their general concerns.
An examination of the Tribunal’s detailed findings and reasons do not indicate overt reliance upon the 2010 country information, and to the extent that country information is referred to, analysed and relied upon it is country information which post-dates the Egyptian Revolution in 2011.
The Court is of the view that ground 2 is, in the circumstances, factually incorrect, and having regard to the principle that country information is generally a matter for the Tribunal, a plain reading of the Tribunal’s findings and reasons does not indicate that its findings and reasons were based on country information which pre-dated the 2011 Egyptian Revolution. In the circumstances, ground 2 does not establish a reasonably arguable case of jurisdictional error in the Tribunal Decision.
Consideration of ground 3 on extension of time application
Ground 3 is as follows:
3. The Tribunal ignored the applicant’s religion and the diffuculty (sic) will find if he would go back to Egypt as this Country does not recognise this religion while the same Tribunal approved other applications based on religion.
In conducting a review the Tribunal must consider all of the claims made by an applicant and all of the integers of those claims as articulated by the applicant or which arise clearly from the material provided: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; [2003] 197 ALR 389; (2003) 73 ALD 321 at [23]-[25] and [32]-[34] per Gummow and Callinan JJ (“Dranichnikov”); Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J (“Htun”).
The law as identified in Dranichnikov and Htun gives rise to two questions which a Tribunal must determine on the facts of each case, namely:
a)was the relevant claim actually made and clearly articulated, or clearly discernible from the claim made; and
b)was the claim identified and considered by the Tribunal?
The Tribunal noted that it was not satisfied as to the applicant’s credibility, and considered that he had contrived all of his claims, including a claim that it identified as being that “he will be targeted because of his ideas about moderate Islam”: CB 419 at [235]. The Tribunal went on to note that in 2011 the applicant did not provide any information when it was sought by the Department (in relation to the Migration Act, s.501 matters) that he was of ongoing interest to the authorities “or any Islamic group or individual in Egypt”: CB 420 at [236]. The Tribunal also indicated that it had considered claims that the Muslim Brotherhood in Egypt had asked about the applicant and indicated their belief that the applicant was in infidel or non-believer, but the Tribunal did not accept that the applicant was of any interest or ongoing interest to the Muslim Brotherhood or any other group or individual in Egypt: CB 423 at [252]-[253]. The claim of persecution by the applicant because he was an atheist and non-believer in Islam and would be persecuted by militant Islamic extremists, members of the Muslim Brotherhood, Salafists or other groups or individuals because he had rejected Islam, and the claim that he would not be able to express his views about atheism if he did return to Egypt, and would be subjected to serious harm if he did so were also considered by the Tribunal, and the Tribunal’s concerns with this issue were raised in the s.424A letter sent to the applicant: CB 426-427 at [262]-[263]. The Tribunal noted that the applicant responded by indicating that he had been an atheist since the 1980’s and did not consider himself a Muslim. The Tribunal went on to observe as follows at CB 427-428 at [264]-[266]:
264. The Tribunal does not accept these explanations for the following reasons. First, in the protection visa application forms, the applicant was asked for his religion and he claimed he was a Sunni and the Tribunal considers that the applicant was given sufficient opportunity to claim he had no religion or was an atheist. ·Second, in the delegate's interview on 30 April 2013, he was asked about his religion and he gave evidence that he was a Sunni Muslim and went on to clarify that he held moderate Islamic views. The Tribunal considers that the applicant had an opportunity to give evidence about his atheist beliefs, which by that time he would have held over a period of several decades and to contrast these with the religion under which he was born. Finally, the Tribunal notes that the claim that he was an atheist first appeared in a submission from the representative on 27 August 2013 in which it was also stated:
His ethnicity is Arab and his religion is Sunni Muslim. Despite being born and raised as a Sunni Muslim, his position with respect to his religion is very moderate.
265. The Tribunal finds that the inconsistent evidence about the applicant's (sic) was either a Sunni Muslim with very moderate views or an atheist, casts doubt on the applicant's claim that he has been .an atheist since the 1980s or at any ti.me. The implausible and inconsistent evidence together with his failure to mention the significant claims at an earlier opportunity leads the Tribunal to find that he has developed these claims solely to enhance his application for the visa. The Tribunal does not accept that the applicant is an atheist, has any interest in atheism, has rejected his religion of Sunni Islam, would express any views about atheism if he returned to Egypt, would not be forced to hide his views about atheism, or would express any religious views which would be considered hostile by the Egyptian authorities, Muslim Brotherhood, Salafists any (sic) other group or individual. This also leads the Tribunal to reject the applicant's claim that he may be subjected to psychological testing or any form of serious harm which, on the applicant's evidence, has occurred to atheists in Egypt.
266. The Tribunal has considered the applicant's claim that as a moderate Sunni Muslim, believes (sic) in freedom of speech, freedom of sexual preference, freedom of women's rights and moderate Islam. The Tribunal find (sic) that the applicant is a Sunni Muslim, according (sic) to country information constitutes approximately 90 percent of the Egyptian population. The Tribunal has not been able to locate credible evidence, nor has the applicant provided any, which indicates that Sunni Muslims who hold moderate views or views claimed by the applicant are persecuted, suffer any form of serious harm or discrimination or are considered to be infidels or non-believers by the Egyptian authorities, any political party or any group or individual. The Tribunal does not accept, on the available evidence, that the applicant has a well founded fear of persecution on account of his religious beliefs as a Sunni Muslim if he returns to Egypt, now or in the reasonably foreseeable future.
The Tribunal went on to consider what might happen if the applicant were to return to Egypt, and in particular whether he would be persecuted or suffer significant harm (for the purposes of refugee and complementary protection claims respectively) because of his claim that he would be considered to be a non-believer and infidel because he had been living in Western countries, and found that on the basis of known country information that the applicant did not have a well-founded fear of persecution or a real risk of suffering significant harm if returned to Egypt: CB 430 at [271] and CB 431 at [275].
The Tribunal Decision demonstrates that the applicant did make, and the Tribunal did consider, in a detailed manner, the applicant’s claims based upon religion, and upon him being an atheist and a non‑believer in Islam. The applicant’s claim that the Tribunal “ignored”, or, put differently, failed to consider the applicant’s claims, or an integer of the applicant’s claims, based upon religion, and upon him being an atheist and a non-believer in Islam, are not therefore made out.
The fact that the Tribunal has set aside other decisions of a delegate refusing applications for protection visas as a result of claims based upon a fear of persecution or harm for religious reasons if the applicant in those cases was returned to Egypt, is not relevant to the Tribunal’s task in this case, which required it to consider the applicant’s specific claims with respect to religion for the purposes of reviewing the Delegate’s Decision and assessing the applicant’s claims with respect to the refugee and complementary protection criterion, in order to determine whether or not the applicant ought to be granted a Protection Visa: Migration Act, ss.36, 65 and 414. For reasons set out above this is what the Tribunal did: see [56]-[58] above. The task of the Tribunal upon review of the Delegate’s Decision was not to make an assessment by way of comparison with other claims which had been determined by the Tribunal, but rather to determine the applicant’s specific claims.
In the circumstances, no reasonably arguable case of jurisdictional error arises under ground 3 either by reason of the Tribunal’s treatment of the applicant’s claims based upon religion, or the Tribunal’s treatment in other cases of other applicant’s cases based upon religious grounds.
Consideration of ground 4 on extension of time application
Ground 4 arises from paragraphs 16 to 23 of the Applicant’s July 2014 Submissions, and essentially alleges a denial of procedural fairness by reason of his having to give his evidence to the Tribunal in Arabic through an Arabic interpreter when he wished to speak and give his evidence in English without an interpreter.
In the Applicant’s July 2014 Submissions in relation to ground 4 the applicant submitted that:
a)his interview with the Delegate on 12 March 2013 was conducted in English;
b)correspondence between the Department, the Tribunal and the applicant was in English;
c)it was known that the applicant had spent the last 28 years in English speaking communities in the United States of America and Australia, and that consequently his Arabic speaking ability was diminished;
d)he never asked the Tribunal or the Department to make an interpreter available to him in or during the Tribunal Hearing;
e)the Tribunal, over the applicant's objection, insisted that the applicant speak in Arabic through an interpreter at the Tribunal Hearing; and
f)the applicant was denied procedural fairness by being required to speak in Arabic, and this affected his ability to put forward his case properly.
In the Applicant’s September 2014 Submissions the applicant submitted that:
a)there were a number of areas in the actual interpretation of particular phrases, and in this regard specified five particular matters said to be the subject of erroneous interpretation;
b)at one point he stated to the interpreter that his “ability to speak Arabic is almost zero, and automatically affects my ability to represent my case properly”, and that that phrase was never interpreted to the Tribunal by the interpreter; and
c)at another stage the interpreter complained that she could not understand the applicant’s Arabic language, and that the applicant’s ability to speak Arabic was limited in her view, and that the applicant was mixing his answers between Arabic and English.
The Minister submitted in relation to ground 4 that:
a)section 422B(1) of the Migration Act relevantly provides that it is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with in Division 4 of Part 7 of the Migration Act, and the Tribunal did not fail to comply with any of the provisions of Division 4, in particular s.425 of Part 7 of the Migration Act, by reason of the applicant giving evidence in Arabic;
b)there would not be any breach of procedural fairness or any failure to comply with the Tribunal’s obligation under s.425 of the Migration Act to invite the applicant to appear before the Tribunal to give evidence and present arguments, unless the applicant was thereby prevented from giving the responses he wished to give to the Tribunal’s questions: Perera v Minister for Immigration & Multicultural Affairs[1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 at [32]-[37] per Kenny J (“Perera”); Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 and SZQUX v Minister for Immigration & Anor [2012] FMCA 700 at [131] and following per Nicholls FM;
c)there is no evidence before the Court that giving answers to the questions put to the applicant at the hearing in Arabic, which answers were then translated into English, affected the applicant’s ability to put forward his case properly, as the applicant alleges;
d)in particular, there is no evidence that the applicant advised the Tribunal at any stage that an English translated answer did not reflect the response he wished to give to a particular question; and
e)in the absence of any evidence that giving answers in Arabic to the Tribunal’s questions prevented the applicant from giving the responses he intended, there is no basis upon which the Court could conclude that the hearing involved jurisdictional error.
For the purposes of the consideration of the arguability of this ground in relation to the extension of time application it can be accepted that:
a)the applicant, and his representative, had dealt with the Tribunal exclusively in English in all matters from the time the Protection Visa application was made until the day of the Tribunal Hearing, and that those processes included the interview with the Delegate and all correspondence between the applicant and the Department and the applicant and the Tribunal;
b)the applicant had lived in English-speaking communities in the United States of America and Australia since 1989, and that he did not ask the Tribunal to make an interpreter available to him in or during the Tribunal Hearing, and that when the Tribunal said that he was to give his answers in Arabic and that they would be conveyed to the Tribunal in English through an interpreter, he objected;
c)there is some evidence to suggest that certain matters were not interpreted correctly; and
d)there is some evidence to suggest that:
i)the applicant told the interpreter that his ability to speak Arabic was almost zero and affected his ability to represent his case properly, but that was never conveyed to the Tribunal by the interpreter; and
ii)the interpreter complained at one point during the Tribunal Hearing that she could not understand the applicant’s Arabic language and that his ability to speak Arabic was limited.
A number of issues which arise from the matters set out above could arguably give rise to jurisdictional error on the basis of a denial of procedural fairness. Those arguable issues are:
a)the applicant being forced to communicate with the Tribunal:
i)in a language not of his choosing (Arabic), which may mean that he has not been able to convey the meaning intended to the Tribunal in his evidence;
ii)in a language with which says he is no longer particularly familiar (Arabic), and which therefore means that he may not have been able to convey to the Tribunal the meaning which he intended; and
iii)in circumstances where he was proficient in English, and there was therefore no circumstance arising requiring the use of an interpreter: Migration Act, s.427(7);
b)that the applicant and the interpreter did not understand one another, either when conversing in English translated to Arabic, or Arabic translated to English, or a mix of the two, and this may have resulted, or had the potential to result in, the applicant’s meaning not being conveyed, or conveyed properly, to the Tribunal, and that there were mis-translations of the applicant’s evidence; and
c)there was no reason to have an interpreter where the applicant claimed to be proficient in English, and where all the previous interactions with administrative decision-makers in Australia had been in English.
In many respects, the above gives rise to an arguable jurisdictional error of a kind which reverses the usual factual position which is alleged to give rise to jurisdictional error in interpretation cases. Ordinarily the denial, or incompetence, of an interpreter results in jurisdictional error because the applicant is not heard because the applicant’s evidence is not able to be properly conveyed to the Tribunal. In this case it is the interposition of an interpreter between the applicant and the Tribunal which results in the applicant’s evidence arguably not being able to be conveyed to the Tribunal other than through the interposition of an interpreter, to whom the applicant had to speak Arabic, and whom the applicant says he did not require because he was proficient in English and therefore able to give his evidence to the Tribunal in English.
In the above circumstances, the Court is of the view that it is reasonably arguable that there was a jurisdictional error in the Tribunal Decision on the basis identified in ground 4. Whether or not there was a jurisdictional error is dealt with further below: see [100]-[154] below.
Consideration of ground 5 on extension of time application
The applicant makes a claim of bias based upon the Tribunal being informed by the Department of the applicant’s criminal history.
The applicant submitted that:
a)the Tribunal should look at the applicant's circumstances in an unbiased way free from any interference whether from the Minister, the Delegate or from the Department;
b)neither a Judge nor jury in in a criminal trial are informed on the background or the criminal history of the accused standing the trial; and
c)by the Department providing information to the Tribunal member about the applicant's criminal history it denied the applicant a fair and proper hearing in the Tribunal, and caused the Tribunal to be bias against the applicant.
The applicant referred in his submission to the well-known case of Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”), from which a number of paragraphs were set out, and also referred the Court to a number of other High Court judgments said to be relevant to the issue of bias.
The Minister submits that there is no evidence that the Tribunal was actually biased against the applicant, or that a reasonable apprehension of bias arises, and nothing in the Tribunal Decision which suggests actual bias, or which could support a finding of reasonable apprehension of bias.
Apart from asserting the referral of his criminal record to the Tribunal by the Department, the applicant points to no fact or circumstance arising from the Tribunal Decision in support of his allegation of bias on the basis of the provision of his criminal record to the Tribunal by the Department.
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”).
The applicant has made no attempt to comply with the requirement that this serious allegation of bias be firmly and distinctly made and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Further, there is no evidence:
a)that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any proper evaluation of materials relevant to the making of the Tribunal Decision: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal noted that the applicant had provided the “circumstances of his criminal history” to a delegate of the Minister for the purposes of proceedings relating to s.501 of the Migration Act (the character test), but did not set that criminal history out: CB 380 at [5]. The Tribunal also referred to the proceedings in the Administrative Appeals Tribunal relating to the character test, again without setting out the underlying basis for those proceedings: CB 382-383 at [13]-[15].
At CB 395 at [104] the Tribunal referred to the applicant’s history of imprisonment and detention in Australia as follows:
104. The applicant has been sentenced to a number of periods of imprisonment for offences mostly relating to fraud. He was last imprisoned on 4 February 2011 for a period of 20 months. He was subsequently convicted of further offences in June 2011 and before he was eligible for release on parole, his Class BS visa was cancelled. The applicant remained in immigration detention because his visa was cancelled.
The Tribunal recounts the fact that in September 2011 the Department wrote to the applicant notifying him that they were considering cancelling his Permanent Partner Visa because of his criminal record in Australia, and in response thereto the applicant provided a personal details form and statement in October 2011: CB 420 at [236]. The Tribunal refers to the applicant’s responses to the notice of intention to consider cancelling his Permanent Partner Visa, those responses being in October 2011 and January 2012, and setting out details of the possible outcome if the applicant returned to Egypt: CB 420 at [238]. The Tribunal also notes that the applicant gave inconsistent evidence as to advice from his lawyer when responding to a notice of intention to consider cancelling his then Temporary Partner Visa on the basis of his criminal record in Australia, which notice was given in July 2003: CB 420 at [236] and CB 421 at [239], but this is in the context of the fact that there was no information provided concerning the claims now made in relation to his Protection Visa.
In the Tribunal’s findings and reasons the applicant’s criminal history, and the nature of his convictions, is set out as part of the narrative evidence, but no express or apparent regard is had by the Tribunal to the applicant’s criminal history in relation to the assessment by the Tribunal of the applicant’s claims under the refugee and complementary protection criterion, and there is nothing in the Tribunal’s assessment which would warrant implying such regard.
In all of the above circumstances, the Court does not consider that it is reasonably arguable that the Tribunal was biased, or that the Tribunal Decision was affected by any bias, either actual or apprehended, on the part of the Tribunal, by reason of the applicant’s criminal history, and therefore no reasonably arguable case of jurisdictional error arises under ground 5.
Consideration of ground 6 on extension of time application
The applicant makes a claim of bias in ground 6 based upon the alleged refusal of the Tribunal to accept the content of the 2013 ASeTTs Counselling Report.
The applicant submitted that:
a)courts and tribunals in Australia accept professional psychological reports;
b)in the 2013 ASeTTs Counselling Report it was stated that the applicant suffered from anxiety and depression and he presented with symptoms of post – traumatic stress disorder and disclosed extreme shame about his experience of sexual torture;
c)the 2013 ASeTTs Counselling Report was prepared by ASeTTS, an organisation contracted by the Department to give care to people with trauma in Immigration Detention Centres, and seemingly because the author worked for the Department, the 2013 ASeTTs Counselling Report would not be biased in favour of the applicant;
d)the Tribunal erred in not considering the 2013 ASeTTs Counselling Report as accurate; and
e)the Tribunal demonstrated “a total bias” against the applicant “by trying to ignore the facts”.
The Minister submitted that the Tribunal dealt with the 2013 ASeTTs Counselling Report at CB 428 at [268], and that there is nothing in the Tribunal’s consideration of the 2013 ASeTTs Counselling Report from which a finding of actual bias or of reasonable apprehension of bias could be made.
The Tribunal set out the content of the 2013 ASeTTs Counselling Report in detail at CB 394 at [94] as follows:
94. The representative provided a psychologist report, dated 13 May 2013, which stated they had met with the applicant on three occasions in April and May 2013 and relevantly provided:
·He had been the victim of significant violent and traumatic events in Egypt before coming to Australia in 2001.
·Whilst in Egypt he witnessed family members being executed; he had been arrested and imprisoned for several years; and had been tortured including sexual torture, mutilation and repeated rape.
·He disclosed extreme shame around his experiences of sexual torture.
·He presented with symptoms of post-traumatic stress disorder.
·He was assessed on the Hopkins Checklist-25 with scores that re considered symptomatic of anxiety and depression.
The Tribunal considered the 2013 ASeTTs Counselling Report at CB 428 at [268] where it said that:
268. The Tribunal has considered the report from the psychologist, dated 13 May 2013. The Tribunal has also considered the Tribunal's Guidance on Vulnerable Persons and information as to how trauma can impact on memory and the Department in the Refugee and Humanitarian - Complementary Protection Guidelines and Refugee and Humanitarian - Refugee Law Guidelines. The Tribunal has considered the assessment that the applicant had scores on an objective testing system which indicated he suffered from anxiety and depression. The Tribunal has considered the assessment that the applicant presented with symptoms of post-traumatic stress disorder and disclosed extreme shame about his experiences of sexual torture. The Tribunal notes the report does not indicate they were provided with any of the applicant's previous written statements, either in relation to the character test or application under review. The Tribunal notes that the report claims that the applicant presented with symptoms of post-traumatic stress disorder but does not make any finding that the applicant suffers from a post-traumatic stress disorder. In relation to the finding that his scores were symptomatic of suffering anxiety and depression, given the findings above that on the available evidence, the Tribunal is not satisfied that the applicant was ever sexually tortured, mutilated or repeatedly raped or suffered any serious harm in Egypt, it is not satisfied that the applicant's high reporting levels of anxiety and depression are related to any incident of serious harm encountered by the applicant in Egypt or related to his fear of future harm, if he returns there. Having considered and weighed all this evidence, the Tribunal gives this report no weight.
The 2013 ASeTTs Counselling Report:
a)indicates that the applicant was referred to ASeTTs by a mental health worker at the Perth International Detention Centre and had an initial assessment with a counsellor in April 2013, and attended two subsequent appointments;
b)disclosed what was said to be significant, violent and traumatic events in Egypt before coming to Australia in 2001;
c)presented with symptoms of post-traumatic stress disorder, and disclosed extreme shame around experiences of sexual torture;
d)was assessed for anxiety and depression using a check-list which was considered symptomatic of anxiety and depression; and
e)is continuing to have contact with ASeTTs and that continuing counselling is recommended to manage the applicant’s mental health issues.
The 2013 ASeTTs Counselling Report is less than page and a half long, and comprises five paragraphs in all, and gives no indication as to the professional qualifications of either the writer (who is an acting clinical manager) or of the “counsellor” who had attended on the applicant.
Having regard to the law as set out above in Jia Legeng and Ex Parte H there is nothing in the Tribunal’s consideration of the 2013 ASeTTs Counselling Report which could sustain an allegation of bias, either actual or apprehended. The facts to be found from, and the weight to be given to, the 2013 ASeTTs Counselling Report was a matter for the Tribunal: Wu Shan Liang. The Tribunal has considered the 2013 ASeTTs Counselling Report and tested it against other evidence and materials which were before the Tribunal, and found having regard to all of that evidence and materials (and not just the 2013 ASeTTs Counselling Report) that the 2013 ASeTTs Counselling Report is to be given no weight. In that regard, the Tribunal has endeavoured to fulfil its function of fact-finding, and whilst the Tribunal differently constituted might have arrived at a different decision with respect to the weight to be attributed to the 2013 ASeTTs Counselling Report, there is nothing in the Tribunal’s consideration thereof which constitutes a likely jurisdictional error, and, based on Jia Legeng and Ex Parte H, nothing which can sustain a finding of bias, either actual or apprehended.
In WZAPM v Minister for Immigration & Anor [2013] FCCA 266 (“WZAPM”), this Court said that an applicant was entitled to have an interpreter who could interpret from the applicant’s native language, or some other language in which the applicant was fluent, into English, and, just as importantly, from English back into the native language, and to a competent standard. A competent standard had the object of ensuring that an applicant was able to raise issues so that what was said by the administrative decision-maker was able to be put properly to the applicant: WZAPM at [21] per Judge Lucev; see also Perera at [21], [24]-[25], [28]-[29], [34]-[35], [37]-[38], [41]-[43], [45]-[47] and [49] per Kenny J.
In WZAPM the Court said that it was not material that the applicant had agreed to proceed without an interpreter because the applicant was entitled to “the provision of an interpreter who could make himself understood in the … [applicant’s] own dialect”: WZAPM at [24] per Judge Lucev quoting from SZGYM at [37] per Graham J.
Although dealing with the converse of the primary interpretation issue in contest in these proceedings, it is pertinent to observe that in DZAAA v Minister for Immigration & Citizenship & Anor [2011] FMCA 434; (2011) 250 FLR 423 at [37] per Lucev FM (“DZAAA”) the former Federal Magistrates Court observed that:
37 The evident purpose of the applicant being in Court is to afford the applicant procedural fairness consonant with the principles of open justice. However, that object cannot be achieved, and justice cannot penetrate, into a world where an applicant sits hearing but not understanding, and has no means of understanding, what is happening in relation to their own application before the Court. To enable an applicant to understand the proceedings, and therefore to be afforded procedural fairness and for the principles of open justice to be met, the proceedings need to be interpreted for an applicant.
The manner in which the process usually works is succinctly summarised in Justice M Perry and K Zornada’s, “Working with Interpreters: Judicial perspectives” (2015) 24 JJA 207 at 210 (“Working with Interpreters”) as follows (footnote omitted):
Normally, courts and tribunals will accede to a request for an interpreter by a witness or litigant who has difficulty speaking English. In migration proceedings, whether before a tribunal or a court, applicants are required to indicate whether they require an interpreter, and the language and (if applicable) the dialect in which the interpreter should be competent.
It is often argued that a court need only look to see whether or not there has been a mis-translation, and the effect of that mis-translation, to determine if an applicant has been denied an effective hearing. In SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142; (2013) 219 FCR 212, (2013) 139 ALD 436 (“SZRMQ”) it was observed at [9] per Allsop CJ that:
9. The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
The foregoing paragraph from SZRMQ makes it plain that the character and frequency of any proven errors in interpretation is but one factor in a determination of whether a hearing is procedurally fair. This is further highlighted in SZRMQ at [24] per Allsop CJ where it was said that:
24. … The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process. As I have said earlier, I agree with the expression of the matter by Robertson J and that, fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done. The place for the appearance of justice being done lies in the rejection of the proposition that the matter is to be analysed solely by reference to causation directed by the reasons of the decision-maker. Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.
The same point is made in “Working with Interpreters” where it is said that “… the focus … on the minimum requirements of the content of the right to an interpreter and to a hearing … does not mean that there is a need to demonstrate that the applicant was prevented from giving any evidence at all but rather that the applicant was unable to put her or his case in relation to matters of significance for the applicant’s claims or the Tribunal’s decision.”
In SZRMQ at [65]-[73] per Robertson J it was said that:
65 The issue in the present appeal being procedural fairness under the general law, the analysis must be focused on the particular circumstances of the case: whether or not there has been a denial of procedural fairness is fact-sensitive.
66 The question is whether the mistranslation or non-translation, singular or plural as the case may be, individually or in the aggregate, led to a material unfairness, that is, relating to a matter of significance or potential significance for the applicant's case and what the applicant was putting about the claim or for the decision-maker's decision.
67 Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker's ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant's words had not been mistranslated or, in the case of a non-translation, had been translated.
68 The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
69 If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
70 It will often be important to distinguish between a case where the mistranslation or non-translation is frequent or continuous, on the one hand, and a case, such as the present, where the errors are intermittent.
71 In the former case it will be easier to conclude that there has been a denial of procedural fairness because, considered overall, the process has miscarried. The cause may be incompetence of the translator in English or in the particular non-English language but the cause is of very little relevance in my opinion.
72 In the latter case, where the errors are intermittent, care must be taken to evaluate the overall fairness of the hearing as well as the individual instances in order to assess the quality of the process and whether it amounts to the applicant having had a reasonable opportunity to be heard and to present his or her claim.
73 It is also important, in my view, to keep separate questions of mistranslation and non-translation, on the one hand, and mere errors of fact on the other hand. Similarly, it may be that a translation is confused and confusing because what an applicant has said is confused and confusing.
The High Court refused special leave to appeal SZRMQ: see SZRMQ v Minister for Immigration & Border Protection [2014] HCATrans 110.
The above general principles applicable to issues of interpretation arise in a novel context in these proceedings. The factual context appears hereunder.
On 22 February 2013 the applicant completed a Departmental form headed “Protection Visa Application Assistance Request for Client in Detention”, indicating that his “Preferred Language” was “English”: CB 9.
In the applicant’s Protection Visa Application he listed seven languages which he said that he spoke, read and wrote, namely, Arabic, Spanish, Italian, French, Turkish, Greek and English: CB 28. The applicant’s Protection Visa Application indicated that the applicant had lived in the United States as a temporary resident on a work permit from 1989 to June 2000, and that he had lived in Australia since June 2000: CB 31.
In an email from the applicant’s then lawyers to the Department in relation to the interview with the Delegate the applicant’s then lawyers advised that the applicant “will not require an interpreter for the interview”: CB 98.
In the “Application for review to the Refugee Review Tribunal” question 2 appears as follows:
Do you (or any person included in the application) need an interpreter when communicating with the Tribunal?
The applicant ticked the “No” box: CB 143.
There is no indication that an interpreter was used or required when the applicant was interviewed by the Delegate, or that an interpreter was used or required in any of the other legal proceedings in which the applicant has been engaged before the Administrative Appeals Tribunal (prior to the amalgamation with the Refugee Review Tribunal) or before the Federal Court: CB 119-142 (Delegate’s Decision); CB 219-241 (Administrative Appeals Tribunal ); CB 203-218 (Federal Court); CB 366-376 (Full Court of the Federal Court).
In the “Response To Hearing Invitation” for the Tribunal Hearing there was no indication that the applicant needed an interpreter: CB 170, 187 and 324.
It is to be observed that the information about the Tribunal Hearing sent with the Tribunal Hearing invitation indicates that an interpreter will be provided at the hearing, and arranged by the Tribunal “if requested”: CB 336.
In a letter to the Tribunal sent with the Response To Hearing Invitation the applicant’s then lawyers advised the Tribunal that:
We note that our client will NOT require an interpreter.
CB 340 (emphasis in original).
The Tribunal Hearing record for 9 September 2013 indicates that an Arabic accredited interpreter was present and affirmed: CB 329.
In the Tribunal Decision the Tribunal observed that:
a)the applicant was represented by his registered migration agent (who was also a solicitor): CB 380 (see CB 340 also);
b)noted that the applicant had completed his Protection Visa application claiming to be fluent in Arabic, Spanish, Italian, French, Turkish, Greek and English, and noted a number of claimed academic qualifications, including two, a Bachelor of Accounting from Alexandria University in Egypt in July 1984 and a Diploma in Australian Taxation Law from “UWE” (which should read “UWA”) in Perth in 2005, which were not the subject of any dispute: CB 384 at [18];
c)observed at CB 400 at [146] as follows:
146. The applicant appeared before the Tribunal on 9 September 2013 to give evidence and present arguments by videolink. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The representative attended the hearing by telephone link. The following is a summary of the oral evidence.
d)observed that the applicant “considers himself to be very Australian. He has lived here for 14 years”, and that he “holds accreditation as an interpreter in several languages and as an accountant”: CB 410-411 at [197].
The applicant affirmed an affidavit on 10 September 2014 concerning information and errors discovered by him in the interpretation during the Tribunal Hearing, and annexed what was described as an outline of submissions, but which relevantly contained the alleged errors in the interpretation at the Tribunal Hearing. The Court notes that insofar as the applicant said that the information, including the errors, discovered by him in listening to and interpreting the recording of the Tribunal Hearing were true and correct to the best of his knowledge, his interpretation was not challenged by the Minister, although there was a submission by the Minister that the evidence ought not be given full weight because it did not fully set out in the usual form what had been said by the interpreter, and how that had been interpreted into English or vice versa: Transcript, 3 December 2014, pages 29-30. The Minister however accepted that the applicant had listened to the recording of the Tribunal Hearing, discovered errors, and the Minister did not challenge those errors: Transcript, 3 December 2014, page 30. The Minister did not go “to the trouble and expense” of providing his own interpretation of what was said in respect to those matters where errors were alleged by the applicant: Transcript, 3 December 2014, page 30. In the circumstances, there is no reason to doubt the correctness of the applicant’s interpretation, and the differences between what was said and what was interpreted, or the failure to interpret some things that were said by the applicant.
At the commencement of the Tribunal Hearing at about 2 minutes 15 seconds the member made the following statement:
Member: I know you can understand but because it is a legal proceeding we will just use the interpreter at the beginning and then we’ll see how we go.
At approximately 7 minutes and 30 seconds into the Tribunal Hearing the following exchange took place between the Tribunal member and the applicant:
MEMBER: Do you understand the interpreter?
APPLICANT: Yes, your honour.
MEMBER: Do you have any objection to using this particular interpreter?
APPLICANT: Not the particular interpreter your honour. But I think during the course of this hearing it’s easier for me to speak in English than Arabic. That’s all.
MEMBER: Well, we’ll see how we go because it’s a legal proceeding and we need to ensure that we understand each other so if it does become apparent that you don’t understand or you want to use the interpreter, then we can use the interpreter.
APPLICANT: Thank you.
The Tribunal member then asked the applicant questions in English which were subsequently interpreted for the applicant in Arabic and the applicant answered those questions in English, but this then appears to have progressed to the applicant answering directly in English without the interposition of the interpreter (at 16 minutes 45 seconds), until at approximately 19 minutes 9 seconds into the Tribunal Hearing the Tribunal member interrupted an answer from the applicant as follows:
MEMBER: I don’t think you understand the question. We’ll use the interpreter because you’re not actually talking about the particular question that I asked.
The Tribunal member then re-asked the earlier question and the applicant then answered the question in Arabic with the answer interpreted. The answer as interpreted by the interpreter from the applicant’s Arabic answer into English was essentially in the same terms as that given earlier by the applicant in English, and prompted the observation from the Tribunal member that he still did not understand why it was that the applicant said he had a well-founded fear of persecution: at approximately 20 minutes 45 seconds. The Tribunal member then asked a subsequent question and the applicant began to answer in English but was stopped by the Tribunal member in the following manner (at 20 minutes 55 seconds):
MEMBER: Wait a minute, we’ll use the interpreter because I think it may be a bit clearer for us.
APPLICANT: Alright.
The Tribunal member then, again, asked the applicant to explain why it was that he had a well-founded fear of persecution. The question asked was interpreted into Arabic and the applicant answered in Arabic. The interpreter then interpreted a relatively lengthy answer of approximately one minute, the interpretation beginning at approximately 22 minutes 23 seconds. The answer interpreted into English by the interpreter caused the Tribunal member to observe that the answer did not answer the question as to why the Muslim Brotherhood and Salafists would seek to harm the applicant: at 22 minutes 46 seconds.
At approximately 23 minutes and 26 seconds into the Tribunal Hearing the applicant said to the interpreter the following:
APPLICANT: As you see that my ability to speak Arabic is almost zero, and automatically affects my ability to represent my case properly.
This sentence within a longer answer to the question asked was not interpreted for the Tribunal member by the interpreter.
At 2 hours and 16 minutes into the Tribunal Hearing the applicant says that the interpreter complained that she could not understand the applicant’s Arabic language and stated that the applicant’s ability to speak in Arabic is very limited and that the applicant was mixing his answers in Arabic and English. The recording indicates that the applicant responded to a question from the Tribunal member concerning his uncle, whom the applicant had alleged was formerly the speaker of the Egyptian Parliament, primarily in English and in part in Arabic. The interpreter at approximately 2 hours 16 minutes and 8 seconds can be heard to say:
Let’s stop please. It is really confusing when half what you say is in Arabic and half in English and I’ll try for now …
At the conclusion of the Tribunal Hearing at about 3 hours and 28 minutes the applicant stated the following:
APPLICANT: The last thing that I’m going to say, I would like to say it in English and I will address it to your honour if you don’t mind.
MEMBER: Yes if you want to do that.
The applicant then provided an answer in English, by way of summation, emphasising in particular that he was “Australian”, and noting that he spoke several languages.
By way of preliminary observation the Court notes that the applicant had been living in primarily English-speaking countries (the United States of America and Australia) for about 24 years prior to the Tribunal Hearing, and that he had obtained a tertiary level qualification from UWA some eight years prior to the Tribunal Hearing. Those facts, which might foreshadow some level of competence in English, were known to the Tribunal.
Specifically in relation to matters associated with the Tribunal Hearing the Court observes that:
a)the applicant had conducted the administrative steps prior to the Tribunal in English, which was his “preferred” language;
b)the applicant specifically requested that there be no interpreter at the Tribunal Hearing, but notwithstanding that, an interpreter was provided by the Tribunal from the outset of the Tribunal Hearing;
c)the applicant specifically requested to speak in English at the outset of the Tribunal Hearing, and at some point prior to the 19 minute mark of the Tribunal Hearing he was answering questions from the Tribunal directly in English;
d)at 19 minutes 9 seconds when the Tribunal member considered that the applicant did not understand a question that had been asked the Tribunal member directed that the applicant use the interpreter, but the applicant having done so, and having given essentially the same evidence in response to the same question asked in Arabic, the Tribunal member still considered that the applicant did not understand the particular question, but the answers given to the question asked in both English and Arabic demonstrate that the difficulty in understanding did not arise from the language used, but rather from the “confused and confusing” content of the evidence given: compare/see SZRMQ at [72] per Robertson J;
e)thereafter, the applicant was required to use the interpreter, but complained that his ability to speak Arabic was such that it affected his ability to present his case, a complaint which was not conveyed to the Tribunal;
f)the applicant had by the 2 hour 16 minutes stage endeavoured to answer some questions leading up to that stage in English, but this elicited a response from the interpreter that, at least, she was confused by the applicant mixing his answers in both Arabic and English, and that she did not understand the applicant’s Arabic; and
g)the applicant was allowed to sum up, at some length, directly to the Tribunal member in English.
In the Court’s view, having listened to the compact disc recording of the Tribunal Hearing (which the Court has marked at Exhibit 1), and having regard to the matters set out above, there was no basis for the Tribunal to conclude that the applicant was not proficient in English, and the Court notes that, in any event, no such finding was made by the Tribunal in either the Tribunal Decision or at the Tribunal Hearing.
Section 427(7) of the Migration Act gives the Tribunal discretion to allow a person to communicate with the Tribunal through an interpreter if the person appearing “is not proficient in English”. Whilst there may be degrees of proficiency in English, it is not apparent that the Tribunal formed a view that the applicant was “not proficient in English” at any stage. Rather, the Tribunal formed the view that because these were legal proceedings that the applicant should speak in Arabic and have his evidence interpreted back into English for the Tribunal. The basis for the Tribunal doing so does not appear to be a lack of understanding of English by the applicant, nor the inability of the applicant to express himself in English. The closest the Tribunal gets is an expression of view that the applicant did not understand the question that he had been asked by the Tribunal, which was interpreted into Arabic, and then answered by the applicant in English. For reasons set out above, the lack of understanding was not related to the language in which the question was asked or the answer given, but the content of the evidence given by the applicant, for essentially the same answer was given when the applicant answered in Arabic rather than English. In any event, the failure to answer a question asked of a person, whether advertent or inadvertent, is a not irregular feature of proceedings in courts and tribunals. Hence, albeit in a slightly different context, advocates must learn to deal with and pin down the evasive witness in cross-examination: see, for example, J Munkman, The Technique of Advocacy (London, Butterworth & Co, 1991), pages 106-107.
In all the circumstances, the Court is of the view that the pre-condition for the exercise of the discretion under s.427(7) of the Migration Act to proceed through an interpreter has not been established in this case, in that it has not been established that the applicant was “not proficient in English”.
In this case:
a)for the vast majority of the Tribunal Hearing the applicant was denied the opportunity to speak to the Tribunal member in his preferred language of English;
b)the applicant was concerned that his ability to speak Arabic was such that it affected his ability to present his case, but that complaint was not conveyed to the Tribunal, but if it had been the Tribunal would have been obligated to deal with the issue: SZGYM at [36] and [37] per Graham J, and to determine whether to continue to proceed with the same interpreter, a different interpreter, or with no interpreter at all thereby allowing the applicant to speak directly to the Tribunal in his preferred language of English. The failure to deal with that issue leaves open the possibility that the applicant was not able to present his case in the best possible manner because, for the vast majority of the Tribunal Hearing he was speaking in a language which did not allow him to present the case as well as he considered he could present it in English;
c)to the extent that the Tribunal member might have not understood particular aspects of the applicant’s evidence it was open to the Tribunal member, as the Tribunal member did at about 19 minutes and 9 seconds, to have particular parts of the evidence dealt with differently through the interpreter, and thus to use the interpreter only in respect of those matters in respect of which there was a genuine difficulty perceived by the Tribunal member with the applicant’s English proficiency: see the reference in SZRMQ to the extent to which interpretation “is necessary”: at [9] per Allsop CJ;
d)the interpreter herself appears to have complained about the applicant’s ability to speak Arabic, and confesses to confusion, more than two hours into the Tribunal Hearing, because of the applicant mixing his answers in both Arabic and English, which is of itself an indicator that the applicant was not comfortable speaking in Arabic rather than English, and which was a matter which the Tribunal ought to have dealt with to either clear away any confusion, or allow the interpretation to proceed on a proper basis, or to allow the applicant to give his evidence thereafter in English, rather than simply allowing the evidence to continue to be given in Arabic to be interpreted back to the Tribunal member in English and for the confusion and lack of understanding to arguably continue; and
e)the applicant’s English was so proficient that the Tribunal allowed him to make his summation in English, and in those circumstances it is difficult to understand why he could not have given his evidence in English, which was his preference, rather than Arabic, in which, at least on the day, his capacity appears to have been somewhat limited, and which appears to have been a cause of confusion to both the applicant and the interpreter.
In the above circumstances it appears to this Court that the Tribunal has introduced a barrier, namely the requirement for the applicant to use an Arabic interpreter and to give his evidence in Arabic, which, for the majority of the Tribunal Hearing, may have prevented or impeded his understanding or communication with the Tribunal: Perera at [24] per Kenny J, and which led to an inversion of the normal process whereby an interpreter is introduced to endeavour to ensure that there is no confusion with the evidence to be given, whereas in this case, the introduction of the interpreter appears to have led to confusion: Perera at [41] per Kenny J; DZAAA at [37] per Lucev FM. In the circumstances, the applicant has been denied the opportunity to put his case in the language of his preference, and in the circumstances, given the confusion that his Arabic caused to the interpreter, and the applicant’s own admission on the day of the limitations of his spoken Arabic, that, in the Court’s view, has resulted in material unfairness to the applicant by denying him a proper opportunity to put his case at hearing: SZRMQ; Li; Perera.
In the Court’s view in respect to those parts of the Tribunal Hearing where the applicant was obliged by the Tribunal to speak in Arabic it is simply not possible to ascertain what the applicant might have said in English, but did not or could not say in Arabic, or what he might have said differently in English to Arabic. In this respect nuance might have been important, especially to a consideration of the applicant’s credibility. It is therefore possible that, in combination, the obligation to primarily speak Arabic and not English, the changing back and forth which occurred at the outset of the Tribunal Hearing between English and Arabic, and again at the end of the Tribunal Hearing (albeit at the applicant’s request), the inability to give evidence in a language which the applicant wished to give evidence in, and the Tribunal’s failure to appreciate that there may have been a lack of understanding between the applicant and the interpreter (because the Tribunal was not told of that lack of understanding), might all have contributed to the Tribunal’s adverse assessment of the applicant’s credit. It is simply not the point that the applicant does not now give evidence of what he would have said in English, and how it is or might be different to what he said in Arabic, because it is not for this Court to reassess his credibility on the basis of what he might have said in English. Rather, that was a task for the Tribunal, and a task it did not carry out in circumstances where it did not permit, for a large part of the Tribunal Hearing, the applicant to express himself in his preferred language of English. It is thus possible that, notwithstanding the Court’s existing finding in relation to ground 1 of the proposed substantive application, that had the Tribunal heard the applicant’s evidence in English, its credibility findings may have been different, and if that were so it may be that the Tribunal would have been able to take a better advantage of its opportunity to see and hear the applicant as a witness in the Tribunal Hearing: Perera at [45], [47] and [49] per Kenny J.
In the above circumstances, there was a denial of procedural fairness in the Tribunal Hearing which constituted a jurisdictional error, irrespective of whether or not there were actual misinterpretations of specific portions of the evidence as alleged by the applicant.
In relation to specific instances of misinterpretation the applicant raised the following issues:
a)that at 13 minutes 20 seconds after the start of the Tribunal Hearing he stated that he was tortured by the “Egyptian Internal Security Forces” (the Almokhaberat), whereas the interpreter stated that he was tortured by the Egyptian Police, and the applicant says that there is a distinction between the general term for Egyptian Police and the specific term for the security forces;
b)at 1 hour 1 minute and 30 seconds after the start of the Tribunal Hearing when the applicant was asked by the Tribunal about his You Tube video song the applicant asked for an extension of time to produce a copy of an email sent to the producer of the You Tube video by the applicant, and that phrase was never interpreted to the Tribunal due to the inability of the interpreter to understand the applicant’s Arabic;
c)at 1 hour 5 minutes after the start of the Tribunal Hearing when the applicant was asked by the Tribunal about his religion he answered that he was “born Muslim since my early years I adopted a very moderate Islam until I converted to atheism” whereas the interpreter said “Muslim” which was a completely inadequate interpretation and caused confusion between the Tribunal and the applicant;
d)at 1 hour 22 minutes after the start of the Tribunal Hearing when asked about the name of the network which interviewed the producer of the You Tube video] the applicant answered that his name was mentioned in several interviews by that person but that he did not recall the name of the Arabic-speaking network but it was definitely a Middle Eastern network, which the interpreter interpreted as “the Middle East network”, which the applicant says is “completely inadequate”; and
e)at 1 hour 55 minutes after the start of the Tribunal Hearing the applicant says that he was asked about the name of the newspaper that he said he helped establish in the 1980’s and that he gave the answer “Alwatan”, or “The Nation” but the interpreter interpreted it as “Watany” or “My Nation”, and that there is a significant difference, particularly given that where there is a Watany newspaper in Egypt which is not associated with the applicant.
In relation to the alleged error with respect to the alleged torture of the applicant by the Egyptian security forces it appears to the Court that the Tribunal was aware of and dealt with that allegation. Firstly, the Tribunal had the benefit of the Delegate’s Decision where in various passages from CB 79-81 the Delegate referred to the Al’Mukhabarat. Secondly, the Tribunal expressly referred to the applicant’s claims of persecution and being at risk from the Al’Mukhabarat: CB 419-420 at [235], which specifically refers to both the Al’Mukhabarat as the secret police and more generally to the Egyptian authorities, and to CB 420 at [238] where the Tribunal again refers to a claim by the applicant that because of his various political activities he had been arrested, tortured and was of ongoing interest to the Al’Mukhabarat. Finally, the Tribunal does not appear to have made any credibility finding based on a perceived inconsistent answer about whether the applicant had been tortured by or was of interest to the Al’Mukhabarat as opposed to the “ordinary” or “state” Egyptian Police. In the above circumstances, the alleged misinterpretation does not appear to have led to any material error in the Tribunal Decision.
In relation to the failure to inform the Tribunal that the applicant had asked for an extension of time to produce a copy of the email sent to the producer of the You Tube video, that failure produced no practical justice because, by reason of the s.424A letter sent to the applicant, the applicant was afforded the opportunity to put on post-hearing submissions (which he did, and which appear at CB 358-363) which included advice that the applicant would be able to provide a letter of support from the producer, thereby demonstrating that the applicant had the opportunity, if he wanted to, to produce to the Tribunal a copy of the email. Thus, even if there was an error in the interpretation by the interpreter at the Tribunal Hearing, it had no effect because the applicant subsequently advised the Tribunal via the post-hearing submissions that he could produce the email concerned.
In relation to the interpreter’s abbreviation of the applicant’s answer concerning his being born Muslim and converting to atheism after having adopted a moderate version of Islam in the interim, it is plain that the Tribunal understood that the applicant said he had been a moderate Islamic, who had become an atheist, and the Tribunal addressed those matters in some detail: CB 426-427 at [262]-[263], with the Tribunal specifically noting that the applicant had claimed to an atheist since the 1980’s. Once again, this particular mis-translation does not appear to have had any practical effect, or caused any practical injustice to the applicant in the Tribunal Decision.
In relation to the alleged misinterpretation of “Middle Eastern Network” to the “Middle East Network” by the interpreter it does not appear that anything turns on the misinterpretation, particularly in circumstances where in the post-hearing submissions the applicant’s lawyers provided to the Tribunal the name of the specific Lebanese television network concerned, namely the Al Sharq al Awsat TV network: CB 362.
In relation to the name of the newspaper that the applicant allegedly established the Tribunal asked the applicant about the name of the newspaper that he founded and was told that it was the Alwatani newspaper. The Tribunal questioned the applicant about this because that appeared (on information available to the Tribunal) to be a Coptic Christian newspaper. The Tribunal went on to question the applicant further about a similarly named newspaper, and the applicant discussed a name change for the Alwatani newspaper to the Watani newspaper. In any event, the applicant offered to provide a link to the newspaper to the Tribunal member: CB 403 at [163], which link was provided, a fact noted by the Tribunal: CB 414 at [222]. The link was provided in the applicant’s post-hearing submissions sent by his lawyers to the Tribunal where it was said that a link was provided to the “Alwatani” newspaper which could be accessed at a link said to be As a consequence the Tribunal discussed at some length the various alternatives involving the Alwatani newspaper being renamed the Watani, and the changes in ownership structure of, and continued operation of, the newspaper now known as Watani: CB 424 at [254]. Once again, it appears that if there was a misinterpretation by the interpreter that that misinterpretation had no practical consequence, and that there was no practical injustice arising from it, due primarily to the provision of post-hearing submissions and the Tribunal’s evident understanding of, and consideration of, the relevant issue.
The Court is of the view that the alleged misinterpretations by the interpreter have, in and of themselves, not resulted in any material error in the Tribunal Decision, and no practical injustice to the applicant. It follows that the specific misinterpretations alleged by the applicant have not resulted in a jurisdictional error by the Tribunal.
It follows from the Court’s conclusions in respect of ground 4 that ground 4 has, in part, been established, and in relation to that part that has been established there is a jurisdictional error which warrants the grant of prerogative relief by the Court.
Conclusions and orders
The Court has concluded that:
a)ground 4 of the proposed substantive application gives rise to a reasonably arguable jurisdictional error, but otherwise the proposed grounds of the substantive application do not give rise to a reasonably arguable jurisdictional error [in the Tribunal Decision];
b)in the circumstances, ground 4 warrants an extension of time in which to file the proposed substantive application, and there will be an order that time for filing of the proposed substantive application be extended under s.477 of the Migration Act to 17 February 2014; and
c)that jurisdictional error has been established in the Tribunal Decision in relation to ground 4 of the application in relation to the requirement that the applicant speak in Arabic and have his answers interpreted back into English, rather than the applicant being allowed to speak in his preferred language of English.
It follows from the conclusion that jurisdictional error has been established in relation to ground 4 of the application that prerogative relief ought to be granted to the applicant. There will therefore be orders that a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal (now the Tribunal) made on 17 December 2013, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant on 2 July 2013.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch 2.
I certify that the preceding one hundred and fifty-seven (157) are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 7 September 2016
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