Wzavi v Minister for Immigration and Border Protection
[2017] FCA 744
•25 May 2017
FEDERAL COURT OF AUSTRALIA
WZAVI v Minister for Immigration and Border Protection [2017] FCA 744
Appeal from: WZAVI v Minister for Immigration and Anor [2016] FCCA 2961 File number: WAD 599 of 2016 Judge: LOGAN J Date of judgment: 25 May 2017 Catchwords: MIGRATION – judicial review – former Refugee Review Tribunal – Indian citizen – application for Protection (Class XA) visa – whether Tribunal gave proper and genuine consideration of evidence before it – whether well-founded fear of persecution – whether misinterpretation – whether a failure to observe procedures required by the Migration Act 1958 (Cth) at interview – whether Tribunal failed to observe the requirements of s 425 of the Migration Act – whether jurisdictional error – invitation issued under s 425 must remain open and must not be a hollow shell or empty gesture not demonstrated, comprehensive error of interpretation at hearing – no denial of procedural fairness at hearing Legislation: Migration Act 1958 (Cth) Cases cited: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188
Date of hearing: 25 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Sparke Helmore ORDERS
WAD 599 of 2016 BETWEEN: WZAVI
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
25 MAY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed, if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The appellant is a citizen of the Republic of India. He came to Australia via Indonesia. His journey from Indonesia to Australia was facilitated for a fee by a “people smuggler”. On 24 July 2014, the appellant applied under the Migration Act 1958 (Cth) to the respondent Minister for Immigration and Border Protection (Minister) for that class of visa known as a protection (Class XA) visa. That claim was rejected by a delegate of the Minister on 1 September 2014.
The appellant then sought the review of the Minister’s delegate’s decision by the then Refugee Review Tribunal. That Tribunal’s role has since been assumed by the Administrative Appeals Tribunal (Tribunal). That Tribunal is also a respondent to the appeal. As might be expected, and appropriately, its stance is to abide the orders of the Court, and not to seek to be heard, save on any question affecting it with respect to costs. On 10 November 2014, for reasons given in writing, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa.
The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal’s decision. That judicial review application was heard on 28 May 2015, but for some reason, which is not necessary to explore, judgment was not delivered until 30 November 2016. On that date, the Federal Circuit Court dismissed the appellant’s judicial review application. It is from that order of dismissal that the appellant now appeals to this Court.
There are four grounds of appeal:
1. The evidence provided by me was overlooked was related to my claims.
2. Return back to my country of origin may result in prosecution.
3.Misconstruction’s of my claims by member of RRT because of the language barrier.
4.The situation had I had to go back home would be very critical and life threatening to myself, also I will be torture for rest of my life.
[sic]
The nature of this Court’s jurisdiction in a case like this is appellate, not original. Read narrowly, the grounds of appeal do not, as they should, engage with the asserted errors made by the Federal Circuit Court, but instead focus upon the alleged errors of the Tribunal. The grounds of appeal resemble, but give somewhat more detail to, grounds of review pressed before the Federal Circuit Court. Especially in a case where an appellant appears without legal representation or training and where the appellant, though not without some understanding of English (to my observation), does not have English as his first language, the interests of justice require a more benign reading of the grounds of appeal, in my view.
The grounds are capable, on such a reading, of asserting that these were bases upon which the Federal Circuit Court should have concluded the Tribunal had made jurisdictional errors. With commendable fairness, the Minister signified that he was content for those grounds to be dealt with on that basis and made submissions accordingly.
The appellant appeared on his own behalf with the assistance of an interpreter. He also lodged, as did the Minister, written submissions. The Minister was represented by his solicitor.
The Tribunal, at [5] of its reasons, gave an accurate summary of the basis of the appellant’s claim for a protection visa, as set out in his visa application. That claim centred upon an involvement with the National Party in the State in India in which he lived and a fear of persecution based on actions taken, and which he feared would be taken, by members of opposing parties. He made reference in his claim to a brutal attack on him on 23 August 2013 by, so he claimed, people who assaulted him because of his party affiliation. He claimed further that, because of that affiliation, persons would bring a false case in the criminal courts against him. He further claimed that police belonging to the ruling party had arrested and tortured him.
The appellant gave evidence before the Tribunal with the assistance of an interpreter. Notably also, the appellant tendered to the Tribunal, a letter from a Mr Mann, apparently the president of the party with which he claimed affiliation. That letter is dated 27 September 2014 and is to be found between pages 100 and 112 of the appeal book. The appellant sought, on the hearing of the appeal, to tender the original of that document, but given its reproduction in the appeal book, and the nature of the appeal, I did not receive that into evidence.
That letter was capable, if accepted, of corroborating the appellant’s claim and the evidence which he gave. The Tribunal was not obliged to accept uncritically, either the appellant’s evidence given orally, or the letter from Mr Mann. The Tribunal’s reasons disclose that the Tribunal member formed an adverse view as to the appellant’s credibility and, related to that, of the authenticity of Mr Mann’s letter. This was based on inconsistencies as between accounts given by the appellant when interviewed for the purposes of the initial consideration of his claim by a delegate of the Minister and evidence which he gave to the Tribunal.
The Tribunal noted in its reasons, inconsistencies as to the nature of what I have termed the affiliation with the party, noting a difference between a reference by the appellant to being a supporter and, a separate later reference to being a member. The Tribunal compared these accounts with the description given in the letter of the appellant’s role with the party. The Tribunal also noted a difference between an account given by the appellant as to the places he visited upon his leaving India and that of his parents in other material placed before the Tribunal.
Grounds 1, 2 and 4 of the notice of appeal, in essence, assert as the Federal Circuit Court Judge concluded did in their equivalent grounds of review, that the Tribunal either overlooked the nature of the claim made for a protection visa, or should have reached a different view on the merits of that claim.
It may be accepted that if an aspect or integer of a protection visa claim is not considered by the Tribunal, that the Tribunal will thereby fall into jurisdiction error. This Tribunal member, as his reasons disclose, did not do that. He addressed the claim as made. He then made, as was his role, his own findings as to whether to accept that claim.
In his written submissions on the appeal the appellant offers a detailed and, with respect, eloquent critique of those reasons but the burden of those submissions is to solicit from me a different conclusion about the merits of his protection visa claim to that reached by the Tribunal. That is something I must not do. Nor, as the Federal Circuit Court judge correctly identified, was it something for his Honour to do.
Assuming that the translations of the appellant’s evidence both on initial interview and before the Tribunal were accurate, the Tribunal’s reasons disclose a logical basis for the adverse credibility findings made by the Tribunal, including the discounting of the letter from Mr Mann. That is what makes the remaining ground of appeal so important, as was its equivalent in the Federal Circuit Court. The Tribunal was obliged to offer, if the offer, as here, was accepted by the appellant, a meaningful hearing. A failure of accurate interpretation can amount to a denial to an applicant for review of such a hearing. In Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] the Full Court observed:
… in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that:
(a)the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
Put another way, the hearing invitation extended to an applicant for review must not be a “hollow shell or an empty gesture”: see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].
It is certainly possible to see how, if there were demonstrated errors of interpretation as to the accounts given either on initial interview or in evidence before the Tribunal as to the nature of his affiliation with the party, these would be material errors. As to this it is not enough that an appellant genuinely believes, as I accept does the present appellant, that there were such errors. They must be demonstrated by evidence. The learned Federal Circuit Court judge was well and truly aware of this.
As to the equivalent ground of review to ground 3 of the notice of appeal his Honour observed at [25]:
In circumstances where:
(a) the applicant requested an Urdu interpreter for the Tribunal hearing;
(b)the Tribunal noted that it confirmed with the applicant “a number of times” if he could understand the interpreter, and the applicant confirmed that he could and was happy to proceed; CB168 at [4] and
(c)where there are no particulars of any alleged misinterpretation or a transcript of the proceedings, both of the English portions and a translation to establish any alleged misinterpretation,
the applicant cannot make out ground 3.
That same conclusion must follow, in my view, in respect of the third ground of appeal. There was no evidence before the Federal Circuit Court of any error in translation either in respect of the initial interview or in the evidence before the Federal Circuit Court from the appellant personally. All that there was an apparent compliance with a request for an Urdu interpreter and a confirmation of understanding via this interpreter by the appellant to the Tribunal member. A sense of grievance with the quality of translation, no matter how genuine, is not sufficient.
It necessarily follows from what I have stated already that the appeal must be dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 5 July 2017
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