FEDERAL COURT OF AUSTRALIA

CJM18 v Minister for Home Affairs [2019] FCA 193

Appeal from:

CJM18 v Minister for Home Affairs [2018] FCCA 2621

File number(s):

NTD 39 of 2018

Judge:

GRIFFITHS J

Date of judgment:

22 February 2019

Catchwords:

MIGRATION – whether appealable error by the Federal Circuit Court of Australia in not finding that the Immigration Assessment Authority erred in failing to consider the possibility of a translation error in a letter in support of a visa application provided by the appellant – where the translation stated that the appellant’s father was merely ‘involved’ with the Tamil Tigers, rather than a ‘member’ of that group – appellant’s request for an adjournment refused - no appealable error – appeal dismissed.

Cases cited:

CJM18 v Minister for Home Affairs [2018] FCCA 2621

Date of hearing:

22 February 2019

Registry:

Northern Territory

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

23

Counsel for the Appellant:

The appellant appeared in person (with an interpreter)

Counsel for the Respondents:

Mr T Liveris

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

NTD 39 of 2018

BETWEEN:

CJM18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

22 February 2019

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The appellant, who represents himself, appeals from a decision dated 29 August 2018 by the Federal Circuit Court of Australia (FCCA). The decision is reported as CJM18 v Minister for Home Affairs [2018] FCCA 2621.

2    The FCCA dismissed the appellant’s application for judicial review of a decision dated 14 March 2018 by the Immigration Assessment Authority (IAA).

Summary of background facts

3    The applicant is a citizen of Sri Lanka. He left there as a young child (aged 5 years old) and lived in a refugee camp in India for 22 years. In 2012, he arrived in Australia as an unauthorised maritime arrival. He sought protection here claiming that he feared persecution from the Sri Lankan Government if he were returned to that country because he was involved in demonstrations against that Government when he was in India and his involvement had been publicised in media reports. He also claimed that in about 2014, after he arrived in Australia, he became aware that his father had been involved with the Tamil Tigers and was a member of that group. He said that his father’s brother had disappeared and was believed to have been killed by Sri Lankan authorities. He said that his father’s involvement on the side of the Tamil Tigers in a battle with the Sri Lankan Army in about 1990 had caused his father and the family to flee to India at that time.

4    The IAA rejected the appellant’s claims that he had a profile as a result of his involvement in the demonstrations and his media profile. It also rejected his claims that his activities had come to the attention of the Indian police and that they had threatened to deport him because of his protests against the Sri Lankan Government. It is unnecessary to say anything further about the IAA’s reasons for rejecting those claims because they are not relevant to the appeal.

5    The appeal focuses on how the IAA responded to that part of the appellant’s case relating to his father’s association with the Tamil Tigers. The appellant provided the delegate with a copy of a statement dated 13 June 2014, which was written by the appellant in Tamil. As the FCCA pointed out, it appears that a translation of that letter was later obtained by the appellant and provided to the delegate after his interview on 1 June 2017. When the translation was provided to the delegate by a lawyer who was then representing the appellant, the lawyer said in a covering email that it:

is clear from the translated statement, that he [the appellant] sought to convey that his father was involved with the Liberation Tigers. This evidences that his father was in fact, a member of the LTTE, as opposed to simply providing assistance to the movement.

6    In a further statutory declaration dated 19 September 2017, the appellant said that his father’s involvement with the LTTE was outlined in the 2014 statement and he added that the statement “provides that he was involved with the LTTE…”.

7    The IAA stated at [12] of its reasons that it had accepted that the father “was involved with the LTTE” and added that, understandably, the appellant had provided “very little information about his father’s role in the LTTE, and stated that he still does not know the full extent of his association with the LTTE” (which is a reference to an earlier statutory declaration dated 29 February 2016 sworn by the appellant.

8    It is desirable to set out the entirety of [13] of the IAA’s reasons, because it addresses the translation error issue (footnote omitted):

13.    The applicant explained in the SHEV interview his concern that there had been a translation error in relation to a statement he had written in 2014 which was used to prepare his later SHEV application. He said he wrote in Tamil that his father was in the Tamil Tigers and helped them, but it has been interpreted that his father was an LTTE supporter. The applicant stated he wrote about his father while still in immigration detention in Australia in June 2014. The applicant provided a copy of his written statement (in Tamil) from June 2014 which he claimed to have read to his case manager at the time with the assistance of an interpreter. And two years later, the applicant's lawyers used this June 2014 statement to prepare his SHEV application. An official translation of the June 2014 statement was provided after the SHEV interview, and it states that after the applicant told his father about the department's mistake in publishing his personal information (in February 2014, on the department's website), his father told him the problems that his family and the applicant would face as a result of this online disclosure, which is that: his father was involved with the LTTE and helped them in a number of ways while he was in Sri Lanka, the SLA has been searching for him since the battle of 1990 at Paththuwettuwan between the L TTE and the SLA. His father told him he lived in hiding for some time until he moved to India as a refugee with the family. And that later some people tipped off the SLA about his brother (the applicant's uncle) and soon he was taken by the SLA. His father did not know if his brother is still alive or dead as he did not get any news about him over the last 20 years. There is no subsequent information to what he wrote in 2014 about what rank or status his father held in the LTTE, or what role he performed, what help he gave, or what he did in the 1990 battle between the LTTE and the SLA, or any further information about his uncle and what happened to him. Country information indicates that it would not have been possible for a young civilian man living in the north or north east during the conflict not to have had any contact with the LTTE - according to the leader of the Tamil National Alliance, it would have been forced upon them. Given the applicant's father was from Killinochchi in the Northern Province, I accept he would have had some level of involvement with the LTTE in the 1980s before the family left Sri Lanka. Beyond that however, given the absence of any further detail or supporting information from the applicant, I am not satisfied that the applicant's father was a member of the LTTE, or that the SLA has been searching for the applicant's father since the battle of 1990 at Paththuwettuwan between the LTTE and the SLA, and that his uncle was taken by the SLA and has been missing for more than twenty years.

9    The IAA did accept that the appellant’s father was involved with the Tamil Tigers, but it noted that the appellant did not know the full extent of his father’s association with that group. It added that this was unsurprising given the fact that the appellant was only a young child when the family left Sri Lanka for India.

10    It is clear that the IAA addressed itself to the appellant’s contention that his father had been a member of the LTTE. It accepted that his father had had some involvement with that group but, in the absence of any further information or evidence, the IAA was not satisfied that the father was a member of the LTTE.

The FCCA’s reasons for judgment summarised

11    In an ex tempore judgment, the primary judge explained why he rejected each of the three grounds of judicial review. In circumstances where the appeal relates solely to the primary judge’s reasons for rejecting ground 2 below, it is sufficient to focus upon those reasons.

12    As to ground 2, which related to the accuracy of the translation of the appellant’s statement dated 13 June 2014 concerning his father’s involvement with the Tamil Tigers, the primary judge inferred from the date on the seal of the official translation (15 June 2017) of that document that it must have been provided to the delegate after the interview, but before the delegate’s decision on 19 July 2017.

13    The appellant claimed that there was an error in the translation of his 2014 statement and that it failed accurately to translate that the appellant had said that his father was a member of the LTTE and was not simply “involved” with them. The primary judge rejected this claim on the basis that it was evident from the IAA’s reasons for decision that it appreciated that the appellant had drawn the IAA’s attention to the alleged translation error. But the IAA, without making any finding about whether there was a translation error or not, nevertheless concluded that, given the absence of any further detail or supporting information from the appellant, the IAA was not satisfied that his father was a member of the LTTE and that he had been a person of interest to the Sri Lankan Army since the battle in 1990.

14    His Honour said that it was not possible for the FCCA to conclude whether there had in fact been an error of translation but, in any event, the claim was irrelevant because the IAA’s reasons for rejecting this aspect of the appellant’s claim was independent of the alleged translation error. That was because the IAA was not satisfied on the basis of the vague information provided by the appellant that his father was in fact a member of the LTTE. Accordingly, the alleged error of translation was not material.

15    It is well to set out [29] and [30] of the primary judge’s reasons for judgment in which his Honour explained why he dismissed ground 2:

29.    So the Authority was aware of the applicant’s assertion that there was a translation error and, essentially, without making any finding about whether there was an error or not, concluded that the information was insufficient to persuade it that the applicant’s father was a member of the LTTE. The ground of appeal which asserts a translation error is really not easily amenable to resolution by this Court. It is not possible for me to conclude whether or not there has been an error of translation. The applicant has not provided any other evidence about the translation, for example, an alternative translation. It was simply asserted in the ground of review that that was an error.

30.    As I say, I cannot reach any conclusion about whether that is true or not. In a sense, it is irrelevant because as the Authority made clear, in my view, whether or not there was a translation error, it was not satisfied, having regard to the vague information provided by the applicant, that his claim that his father was a member of the LTTE was, in fact, true. I can see no error with that process of reasoning. Accordingly, I dismiss ground 2.

Notice of appeal

16    The notice of appeal contained a single ground of appeal (without alteration):

Grounds of appeal

1.     The primary judge erred in failing to find that the Immigration Assessment Authority (IAA) failed to take into consideration the possibility of the translation of the Appellant's letter to the department being vague or inaccurate.

Particulars

a.    The Appellant maintained at his interview before the Minister's delegate that he had stipulated in a letter to the department in 2014, that his father was a member of the Liberation Tigers of Tamil Elam (LTTE).

b.    The translated copy of the said letter provided that the Appellant's father was ‘involved with the LTTE’

c.    The IAA and the Primary Judge failed to consider that the translated words ‘involved with the LTTE’ do not necessarily exclude the possibility of the Appellant's father having been a member of the LTTE.

The appellant’s adjournment request

17    The appellant represented himself but was assisted by an interpreter. When the appeal was called, the appellant sought an adjournment for 2 months to obtain legal advice and prepare evidence. He said that there were few migration lawyers in Darwin and that it was only yesterday when he managed to consult a Tamil-speaking lawyer who helped explain his case. The Minister opposed the adjournment. The request was refused. In essence, this was because the proceeding has been on foot for more than 5 months and no sufficient explanation was given by the appellant as to why he delayed so long in seeking legal advice. I pointed out that there were interpreting services available to him if he had needed them for that purpose.

The parties’ submissions summarised

18    The appellant did not file a written outline of submissions. When he was asked at the hearing to say whatever he wished in support of the single ground of appeal, the interpreter read out a brief written statement apparently prepared by the appellant in which reference was made to the interpreting error. The Court explained the need for the appellant to identify an appealable error by the primary judge.

19    It is unnecessary to summarise the Minister’s submissions because they are substantially reflected in my reasons below for dismissing the appeal.

Consideration and determination of the appeal

20    The appellant has failed to establish any appealable error on the part of the FCCA. The primary judge addressed the appellant’s claim that the IAA failed to consider the possibility that there was a translation error in the appellant’s statement dated 13 June 2014. I discern no appealable error in the primary judge’s approach, which was to focus on whether the IAA was aware of the appellant’s claim that his father was a member of the LTTE and whether that claim was properly considered by the IAA. As is evident from [13] of the IAA’s reasons for decision, it squarely addressed the issue as to whether the appellant’s father was a member of the LTTE, and the possibility that there had been an error in the translation of the 13 June 2014 letter. Without deciding whether there was a translation error or not, the IAA concluded that it was not satisfied on the strength of the 13 June 2014 letter alone that the appellant’s father was a member of the LTTE.

21    As the primary judge observed, the absence of further detail or supporting evidence which meant the IAA could not be satisfied the applicant’s father was a member of the LTTE meant that any alleged translation error in relation to the 13 June 2014 letter was irrelevant. The IAA rejected the appellant’s claim on the basis of the lack of information that was provided by the appellant to support it. This finding was reasonably open to it, bearing in mind that the appellant himself had no personal and direct knowledge of the nature of his father’s association with the group.

22    The primary judge did not fall into appealable error in dismissing the appellant’s application for judicial review.

Conclusion

23    For these reasons, the appeal will be dismissed, with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:    22 February 2019