FEDERAL COURT OF AUSTRALIA

MZAHK V Minister for Immigration and Border Protection [2017] FCAFC 87

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

THE FACTS

1    The appellant, a citizen of Sri Lanka and an ethnic Tamil, arrived by boat on Cocos Island in July 2012.

2    In December 2012, he applied for a Protection (Class XA) Visa (the visa). The application was supported by a statutory declaration. The statutory declaration was written in English with the assistance of an interpreter (the interpreter or Mr G). In making the statutory declaration, the interpreter attested that he was “accredited”. The statutory declaration was witnessed by a Justice of the Peace, Deepak Chopra, who was, or became, one of the appellant’s migration agents. Mr Chopra was employed by Maylor Andronicos Lawyers Pty Ltd (later called Andronicus Law Pty Ltd), in Sydney.

3    The statutory declaration included a statement by the appellant that in Sri Lanka in 2009 he “was taken to the [Criminal Investigation Department (CID)] and I was held there and questioned…When I said I do not have any involvement with [the Liberation Tigers of Tamil Eelam (LTTE)] they slapped me on my ear”.

4    The Minister’s delegate interviewed the appellant for the purposes of deciding whether to grant the visa. Part of the appellant’s oral evidence recorded by the delegate in her decision was that “[w]hile in an [Internally Displaced Persons (IDP)] camp the [Appellant] was taken by the CID, interrogated and beaten unconscious”.

5    The delegate refused to grant the appellant the visa. The appellant then applied for review of that decision to what was then the Refugee Review Tribunal (the Tribunal).

6    On 26 February 2014, pursuant to ss 425 and 425A of the Migration Act 1958 (Cth) (the Act), the Tribunal invited the appellant to appear to give evidence and present arguments at the Tribunal in Melbourne. The invitation stated, among other things, that “arrangements have been made to conduct the hearing by video conference. The member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible”. The invitation also enclosed a “Response to Hearing Invitation” form, which the appellant was asked to read, complete and return.

7    The appellant obtained the assistance of Mr Ramtir Towdiee, another migration agent at Andronicus Law Pty Ltd. Mr Towdiee, who is a lawyer, completed the document on the appellant’s behalf. Neither he nor the appellant took any issue with the date or place of the hearing or the fact that it was to take place by video conference.

Hearing before the Tribunal

8    At the hearing before the Tribunal on 15 May 2013, the Tribunal member was located in Sydney. The appellant appeared via video conferencing from Melbourne, initially accompanied by his brother. An interpreter (Mr G, the same interpreter who assisted the appellant with the statutory declaration) and his migration agent, Mr Towidee, appeared from separate places by telephone. The appellant’s brother was asked to, and did, leave the room shortly after the commencement of the hearing because, the member said, the hearing was private.

9    The appellant gave evidence to the Tribunal that: “[i]n 2009 I was questioned…at the camp…[W]hen they were questioning they actually assaulted me as well. In that particular room where I was bashed and…questioned, I did see batons and iron bars were in that room. Those types of fears actually in my mind, that’s what I’m thinking that it may happen to me as well”.

10    The Tribunal member questioned the appellant about the apparent inconsistencies between his evidence in the statutory declaration, his evidence before the delegate, and his evidence before the Tribunal. The appellant explained: “I mean what I mentioned was – I mentioned that they bashed me. I didn’t particularly mention that they actually bashed me in my ear and actually because they hit me in the ear I was unconscious”.

11    When asked about the inconsistency of asserting that he was “slapped on the ear”, on the one hand, and being knocked unconscious, on the other, the appellant said: “I actually mentioned before the preparation of that statutory declaration, they actually slapped me on my ear and I fainted, but I don’t know that’s been put through there”.

12    When The Tribunal member then said that he would expect the statutory declaration to include detail of that nature, the appellant said: “I actually mentioned about they slap me in the ear and I was (indistinct) or I didn’t know what’s going on but I don’t know how it was interpreted or put in text”.

Tribunal’s decision

13    On 5 June 2014, the Tribunal affirmed the delegate’s decision not to grant the visa. The Tribunal found the appellant was not credible, among other things, because:

(1)    the appellant’s description of life in an LTTE controlled area was at odds with available country information; and

(2)    the appellant’s descriptions of the CID assault were contradictory.

14    The Tribunal rejected the appellant’s evidence that the statutory declaration was not read to him. The Tribunal accepted that the interpreter had accurately and completely interpreted the contents of the declaration to the appellant.

Federal Circuit Court

15    The appellant sought judicial review before the Federal Circuit Court. The appellant advanced two principal grounds said to give rise to procedural unfairness. (Other grounds going to issues other than procedural fairness were contended for and dismissed. They are not relied on in this appeal so it is not necessary to traverse them).

16    The first ground concerned the interpreter’s qualification as an interpreter. The appellant sought to tender correspondence from Mr Robert Foote, the Manager of the National Accreditation Authority for Translators and Interpreters (NAATI) which asserted, for the first time, that Mr G’s identification number in the statutory declaration was not known to NAATI, and that NAATI was the only body in Australia that accredits interpreters.

17    The second ground concerned the conduct of the hearing and the use of video and telephone conferencing described above.

18    The Federal Circuit Court judge held that the question of an interpreter’s accreditation was not determinative. She further held that the correspondence from Mr Foote was not admissible, and that in the absence of evidence that the appellant objected to the video-link or demonstrated confusion or misapprehension at the Tribunal hearing, the procedural fairness grounds of appeal did not give rise to jurisdictional error.

APPEAL TO THIS COURT

19    The appellant then appealed to this Court. An order was subsequently made referring the appeal to a Full Court.

20    The appellant sought leave to amend his notice of appeal in the form of a proposed amended notice of appeal. He contended that the Federal Circuit Court erred in failing to find that he was denied procedural fairness by the Tribunal for four reasons, which were contained in particulars to that single ground of appeal. The particulars are:

(i)     The Tribunal allowed the hearing to be conducted via video and telephone conferencing absent an application by the appellant, and absent due consideration of all the circumstances, including the need of for the appellant to have an interpreter.

(ii)     The Tribunal excluded the appellant’s brother from the hearing, resulting in the appellant being left alone to give his evidence.

(iii) The Tribunal unknowingly relied upon an improperly executed statutory declaration in coming to its credibility findings concerning the appellant.

(iv)     In considering (i), (ii), and (iii) individually and/or cumulatively justice was not done, nor seen to be done, having regard to ss 422B(3), 425 and 429A of the Act.

21    The relevant sections of the Act relied on by the appellant are as follows.

22    Section 422B(3) provides that “[i]n applying this Division, the Tribunal must act in a way that is fair and just”: see generally Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 358-362 (Hayne, Kiefel and Bell JJ).

23    Section 425 of the Act provides:

Tribunal must invite applicant to appear

(1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)  Subsection (1) does not apply if:

(a)  the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)      subsection 424C(1) or (2) applies to the applicant.

(3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

24    Section 429A of the Act provides:

Oral evidence by telephone etc.

For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

(a)  telephone; or

(b)  closed-circuit television; or

(c)  any other means of communication.

25    The respondent objected to the appellant being given leave to amend his notice of appeal to include the allegation that the Tribunal unknowingly relied upon an improperly executed statutory declaration in coming to its credibility findings concerning the appellant and to the admission of an affidavit sworn by Mr Foote on 3 May 2017, which repeated what he had said about Mr G in the correspondence sought to be relied on before the Federal Circuit Court (particular (iii)). The parties agreed that the Court should read the affidavit and hear submissions on whether to accede to its tender and permit the amendment sought. The Minister did not otherwise object to the amendments.

26    For the reasons set out below, the appellant is unable to establish jurisdictional error and the appeal must be dismissed, with costs.

CONSIDERATION

27    The first basis upon which it was submitted that the appellant was denied procedural fairness is that “[t]he fairness of the process was…undermined” because the Tribunal sat in Sydney, the appellant was heard via video-link (from Melbourne), and the interpreter (and the appellant’s migration agent) appeared via separate telephones.

28    The appellant submits that, in the circumstances of this case, it was not fair and just within the meaning of s 422B(3) of the Act to conduct a hearing in the manner set out above because the appellant’s credit was known or could reasonably be expected to be central to the Tribunal’s task and that his demeanour would be particularly material.

29    This submission cannot be accepted. First, credit is an issue in many cases before the Tribunal (now, of course, merged into the Administrative Appeals Tribunal) and the appellant’s submission, if accepted, would unduly fetter the discretion vested in the Tribunal to allow an appearance by video-link. Secondly, it is clear that the appellant, and his migration agent (who was a lawyer), at no time raised any objection to the manner in which the hearing was conducted. Thirdly, in the absence of any evidence about any alleged inadequacies of the video or telephonic services adopted, it is impossible to speculate about whether the manner in which the hearing was in fact conducted was better or worse than if it had been conducted “in person”. We have reviewed the transcript of the hearing. We agree with the first respondent’s submission that “the Tribunal and the appellant were able to communicate fluently and effectively, and the appellant had the opportunity to give evidence and present arguments as he saw fit”.

30    It may be that having each of the participants in different places, and accessing the hearing via video-link in the case of the Tribunal and the appellant, and via telephone in the case of the migration agent and the interpreter, was not ideal. Particular caution should be exercised before such a process is to be adopted. But in this case, even if it was not “ideal”, the hearing nonetheless “proceeded in a manner permitted by the discretion given to the Tribunal”: see Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 at 547 [28] (Allsop CJ, Murphy and Pagone JJ).

31    The second basis upon which it is submitted that the hearing before the Tribunal was not just and fair is that the Tribunal required the appellant’s brother to leave the room in Melbourne because the hearing was “private”.

32    Section 429 of the Act provides that “[t]he hearing of an application for review by the Tribunal must be in private”.

33    The appellant relied on the following passages from the judgment of the High Court in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486 at 497-498, [25]-[26] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ):

[25]     It was accepted on both sides that s 429 was enacted to benefit or protect applicants in at least two respects. It is in the nature of proceedings of the kind in question that an applicant may make allegations that could expose the applicant to a risk of reprisals, either in Australia or abroad, if they were made public. A related consideration is that applicants should feel uninhibited in presenting their cases to the Tribunal. Since the requirement of privacy is for the benefit of an applicant, it is not open to the Tribunal member to allow anyone to be present at the hearing so long as it is not open to the general public. On the other hand, persons whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal's functions are clearly within the contemplation of the statute as persons who may be present at the hearing. Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence.

[26]     Subject to the powers of the Tribunal earlier mentioned, it is consistent with the statutory purpose, and with common use of language, to treat the concept of privacy as embracing, not only agents of an applicant, but also persons whom an applicant desires to be present and thus to be made privy to what occurs at a hearing. The girlfriend referred to earlier in these reasons provides an example. If one of the applicants wanted her to be with him for moral support, and the Tribunal member had no reasonable grounds for objecting to her presence during that applicant's evidence, then her presence would not destroy the privacy of the occasion. It is unnecessary for present purposes to examine the extent of a Tribunal member's powers to exclude such a person. No such issue arises in the present case. A meeting between A and B does not cease to be private if, by mutual consent, one is accompanied by a friend or supporter. There may be cases where a Tribunal member would feel a need to impose some requirement of confidentiality upon an applicant's friend or supporter but, again, that issue does not arise in this case.

34    It may be accepted that the Tribunal proceeded under a misapprehension when it asked the appellant’s brother to leave. For the reasons given above, his presence was unlikely to have destroyed the privacy of the hearing. But as the Minister submitted, the Tribunal’s request that the appellant’s brother leave did not constitute a breach of s 429. The hearing it conducted was in private, as the Act required.

35    In any event, the appellant did not seek to point to any prejudice that he suffered as a result of his brother not being with him. It follows that no unfairness can be shown to have been visited upon the appellant by reason of his exclusion: compare Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [35] (French CJ, Gummow, Hayne, Crennan and Bell JJ), citing SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [91] (Lander J).

36    It follows that there is no substance in the second point.

37    The third basis relied on is the “fresh evidence” contained in the affidavit of Mr Foote that the interpreter was never accredited by NAATI, which he swears is the only body in Australia authorised to accredit interpreters. The appellant contended that the interpreter thus incorrectly attested his credentials and that the Tribunal’s reliance on his evidence was unsafe. It was also contended that the interpreter’s conduct “is properly characterised as fraudulent in the broader sense as that concept is understood in public law… and that…[it] operated on the Tribunal, such as to unravel its decision”.

38    In our view, it would be quite wrong for us to permit the appellant to rely on Mr Foote’s affidavit and to amend his notice of appeal in the manner proposed.

39    First, the appellant has not attempted to comply with r. 36.47 of the Federal Court Rules 2011 (Cth).

40    That rule relevantly provides:

36.57     Further evidence on appeal    

(1)  A party may apply for the Court to receive further evidence on appeal.

(2)  The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following:

(a)  briefly but specifically, the facts on which the application relies;

(b)  the grounds of appeal to which the application relates;

(c)  the evidence that the applicant wants the Court to receive;

(d)  why the evidence was not adduced in the court appealed from.

….

41    In this case, the substance of Mr Foote’s evidence was evidence that was available at the time of the hearing before the Tribunal and no explanation was sought to be given for why it was not adduced there.

42    Secondly, and in any event, the interpreter never suggested that he had “NAATI” accreditation – as the Minister submitted, he could just as easily have had accreditation from an English-Tamil language organisation outside Australia.

43    Thirdly, the appellant does not, in any event, seek to say that Mr G’s services as an interpreter were deficient, in any important regard or at all. As Katzmann J observed in SZSUT v Minister for Immigration and Border Protection [2015] FCA 190 (at [48]), “[w]ithout more … lack of NAATI accreditation does not demonstrate that the interpreter was unable to, or did not accurately, interpret what the appellant or the Tribunal had to say”. The lack of any explanation from the appellant about Mr G’s role, or the provenance of his credentials or expertise, is also relevant. Mr G was involved in providing assistance to the appellant from the time that he swore the statutory declaration onwards, presumably via the migration agents he had retained at Andronicus Law Pty Ltd. And if anyone could have clarified the position, it was Mr G.

44    For those reasons, we refuse leave to amend the notice of appeal to include particular (iii).

45    The appellant’s final ground was that in considering each of the grounds dealt with above “cumulatively” justice was not done, nor seen to be done, having regard to ss 422B(3), 425 and 429A of the Act. Because we reject the individual grounds, the final ground obviously does not arise.

CONCLUSION

46    For the foregoing reasons, the appeal will be dismissed with costs.

47    The Court notes its appreciation for the thorough and concise submissions from counsel for both parties. The Court is particularly grateful to counsel who appeared for the appellant (Mr Dinelli and Mr Howard), pro bono as part of the Victorian Bar’s Pro Bono Scheme, for their assistance, and for the assistance of their instructing solicitors, Carina Ford Immigration Lawyers.

Associate:

Dated:    31 May 2017