FEDERAL COURT OF AUSTRALIA

Khelifi v Minister for Immigration & Multicultural Affairs

[2000] FCA 791

MIGRATION – Refugee Review Tribunal – protection visa – use of interpreter – whether the Tribunal erred in law in failing to provide an adequate interpreting service – actual bias.

Migration Act 1958 (Cth) ss 65, 425(1), 430, 476, 476(1)(a), 476(1)(f)

Migration Regulations Sch 2 (item 866.22)

Federal Court Rules O 80

1951 Convention relating to the Status of Refugees

1967 Protocol relating to the Status of Refugees

Nouredine v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 138 referred to

Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 referred to

Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 referred to

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 referred to

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 referred to

Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 referred to

Galea v Galea (1990) 19 NSWLR 263 referred to

Bilgin v Minister for Immigration and Multicultural Affairs  (1997) 149 ALR 281 referred to

Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 referred to

Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Lockhart J, No 902/96, 18 October 1996) referred to

The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 referred to

SAID KHELIFI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 154 OF 1999

LEE J

15 JUNE 2000

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

3.         The orders not be entered for fourteen days from today’s date.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 November 1999 which affirmed a decision of a delegate of the respondent (“the Minister”) not to grant a protection visa to the applicant. The applicant, whose country of nationality is Algeria, left that country in September 1997, travelling to, and remaining in, several neighbouring countries until entering South Africa “clandestinely” in March 1998. In the same month he applied for “asylum” and was granted a “temporary residence permit”, extended from time to time until July 1999, pending determination of the application for asylum. In June 1999 whilst the application for asylum was still pending, the applicant left South Africa by aircraft and travelled to Australia. He obtained a ticket for the flight by use of a false Brazilian passport. The passport was destroyed in-flight. He left his Algerian passport in South Africa. He was detained on arrival at Perth Airport as an unlawful non-citizen and thereupon indicated that he wished to make application for a protection visa. He has remained in custody since arrival in this country. On 13 August 1999 the delegate of the Minister refused to grant the applicant a protection visa. The review of that decision was conducted by the Tribunal on 14 October 1999.

2                     Under s 65 of the Act and under item 866.22 of Sch 2 of the Migration Regulations 1994 (“the Regulations”), if the Minister is satisfied that, inter alia, an applicant for a protection visa is a person to whom Australia has protection obligations under the “Refugees Convention”, the visa is to be granted to that applicant. Under the Act and Regulations “Refugees Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Under Article 1(A)(2) of the Refugees Convention, to which Australia is a contracting party, Australia has protection obligations to a person who

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…”

3                     In its reasons for decision the Tribunal noted the applicant’s claims had been set out in written submissions to the Department of Immigration and Multicultural Affairs (“the Department”); in an interview with an officer of the Department; and in written submissions and oral evidence given to the Tribunal.

4                     In summary, the applicant’s circumstances are as follows. He is 33 years of age. Between 1988 and 1992 he served in the Algerian Army where he was trained as a tank driver. After completing that period of military service, approximately 4½ years, he returned to his village and obtained employment locally. He claimed that in 1997 he became aware that a call-up notice had been issued requiring him to render further service in the armed forces and he took his wife and child to another part of Algeria to avoid such service. He claimed that thereafter he decided that it would only be a matter of time before he would be discovered by the military police and that he should leave Algeria.

5                     The applicant now asserts that because of his refusal to answer the call to provide military service, Algerian authorities would suspect that he is a supporter of Islamic fundamentalists who have waged a militant campaign of opposition to the Algerian regime and that he would suffer persecution at the hands of Algerian authorities by reason of such political opinion attributed to him.

6                     The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.

7                     The applicant, yet another litigant in this Court represented by counsel who has undertaken to provide legal services pursuant to the pro bono scheme established under O 80 of the Federal Court Rules, sought review of the Tribunal’s decision on the grounds provided by ss 476(1)(a) and 476(1)(f) of the Act.

8                     The relevant parts of the respective paragraphs read as follows:

“(a)     that procedures that were required by this Act…to be observed in connection with the making of the decision were not observed;

…

 (f)       that the decision was induced or affected by…actual bias;”

9                     In respect of the first of the grounds relied upon, the particulars supplied in respect of the ground were that “the applicant was not given a proper or effective opportunity to appear before the Tribunal pursuant to subsection 425(1) of the Act because adequate interpreting services were not provided at the Tribunal hearing”.

10                  The material before the Court included a transcript of the proceedings conducted by the Tribunal. Counsel submitted that the procedure set down in s 425(1) had not been observed because the applicant had been unable “to give evidence” by reason of insufficient interpreting services being provided to allow his evidence to be communicated to the Tribunal. The applicant and interpreter conversed in Arabic but the applicant spoke an Algerian dialect and the interpreter Egyptian.

11                  Counsel pointed to passages in the transcript where the interpreter acknowledged that she had difficulty with the applicant’s “heavy dialect” and that the applicant was hard to understand. Counsel also pointed to passages where, on the face of the answers provided, the applicant had either not understood the questions of the Tribunal as interpreted to him or his answers to those questions had been misinterpreted to the Tribunal.

12                  Although the interpreting of the applicant’s evidence encountered difficulties, the Tribunal was aware of that fact and required the interpreter to repeat questions and answers to satisfy itself that the applicant had an adequate opportunity to put his case to the Tribunal by responding to the issues raised by the Tribunal on matters on which it sought the applicant’s comment or further explanation.

13                  In any event, none of the extracts from the transcript to which counsel referred concerned matters of substance able to support a submission that the applicant, in effect, had been denied the opportunity to adduce evidence in support of his claim under s 425(1) of the Act providing ground for review of the decision under s 476(1)(a) of the Act. (See:  Nouredine v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 138 at 144.)

14                  Certainly where significant errors occur in the interpreting of an applicant’s evidence to the Tribunal, it may be concluded that the applicant has not been accorded the right provided by s 425(1) of the Act and ground for review of the decision will be demonstrated. (See:  Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555.)

15                  The applicant has not shown that the interpreting of his evidence involved any errors of significance constituting a denial of the right provided in s 425(1) and, therefore, no ground for review has been established.

16                  In respect of the second ground of the application, the particulars of that ground relied upon were as follows:

·          the attitude displayed by the Tribunal to the applicant’s difficulties with the interpreter at the Tribunal hearing;

·          the Tribunal’s rejection of the applicant’s evidence concerning his re-call to military service; and

·          the selective reliance by the Tribunal on available country information concerning Algeria.

17                  With regard to the first of the foregoing particulars, the Tribunal may have expressed itself in terms that suggested that the Tribunal harboured some doubt as to whether the concern of the applicant was with his evidence being properly interpreted or with finding answers to the questions being put to him by the Tribunal. However, the applicant’s representative at the hearing responded to the Tribunal’s musings by informing the Tribunal that a conclusion adverse to the applicant based on his difficulties with the interpreter, would not be proper. The Tribunal agreed that the words used may have been inappropriate in the circumstances and assured the applicant’s representative that no inference would be drawn that the applicant was being evasive in his responses to the Tribunal. On the face of that material, no finding of actual bias could follow.

18                  Counsel further submitted that actual bias of the Tribunal was displayed in the Tribunal being prepared to continue the review hearing when the interpreter had difficulty with interpreting some of the applicant’s evidence. Such a procedural decision was a matter of judgment for the Tribunal to exercise, and in the absence of some other circumstance indicating bias, would not support a conclusion of actual bias on the part of the Tribunal.

19                  The second particular relied upon concerned the Tribunal’s rejection of the applicant’s claims that he had fled Algeria to avoid being called up to serve again in the Algerian armed forces. The Tribunal did not accept the applicant’s claims in respect of the call-up notice and found as a fact that the applicant had not been re-called for further service. The reasons given by the Tribunal for that material finding of fact referred to the applicant’s failure to mention such a notice when he had applied for asylum in South Africa and his ability to return to Algeria without being apprehended at Algiers Airport when he returned from Syria some months after fleeing Algeria for the purpose of obtaining funds from his bank account. The Tribunal referred to other material which it considered supported the conclusion it had reached.

20                  It was submitted that the applicant had provided explanations for the matters referred to by the Tribunal. The submission as to bias appeared to be that rejection by the Tribunal of such explanations suggested that the mind of the Tribunal had been closed to any conclusion other than one unfavourable to the applicant.

21                  It was for the Tribunal to determine the weight it would give to the material before it and as long as it made material findings of fact and provided reasons therefor, the decision could not be made subject to review on the basis of the weight it applied to evidentiary material. (See:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per Gleeson CJ, McHugh J at [55]-[56].)

22                  It follows quite plainly from the foregoing that this particular was unable to support a submission that the decision of the Tribunal was affected by actual bias.

23                  With respect to the third particular relied upon, counsel submitted that there was material before the Tribunal that could have supported a conclusion that the applicant had been subjected to a further call-up notice. The submission appeared to be that in the absence of reasons for rejecting such material a conclusion should be drawn that the Tribunal was actuated by actual bias against the applicant.

24                  There was considerable material before the Tribunal on the question of military service in Algeria and the liability of Algerians to render such service. The Tribunal discussed the material, set out the conclusion it had reached and why it had done so. Again it was for the Tribunal to determine what material it had found persuasive in reaching findings of fact on such issues. As required by the Act the Tribunal provided reasons for those findings which referred to the material it had relied upon. That an alternative conclusion may have been available to the Tribunal other than the conclusion which the Tribunal drew, will not in itself support ground for review under s 476 of the Act.

25                  The Tribunal was entitled to deal with the material before it in a compendious way and was not obliged to isolate various elements of that material to deal with each element separately in the reasons provided by the Tribunal pursuant to s 430 of the Act. That is particularly so when minor issues are subsumed in larger questions dealt with by the Tribunal. Failure to give specific attention in the reasons to subsidiary points is not a reflection of a failure to consider that material if, in the context of the reasons as a whole, adequate explanation is provided as to how that material has been dealt with by the Tribunal. (See: Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 at [33]; Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 per Lee J at [8], per Marshall J at [51-53].) Thus it cannot be submitted that the mere failure of the Tribunal to advert in its reasons to particular material is sufficient to ground a finding of actual bias. To make out the ground that the Tribunal was affected by actual bias there must be cogent material that clearly establishes that the mind of the Tribunal was not open to argument and operated prejudicially against the applicant with the result that the Tribunal was unable to be diverted from a predetermined course. (See: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 per Burchett J at 133-134.) Any matters upon which reliance is placed to establish bias must be placed in the context of the entire hearing before the Tribunal. (See:  Galea v Galea (1990) 19 NSWLR 263 per Kirby ACJ at 279.)

26                  A finding of actual bias is very difficult to make out. (See:  Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 per Finkelstein J at 289; Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 at [50].) It is not sufficient that the decision-maker has merely formed a preliminary conclusion. That preliminary view must be incapable of being altered. It is not enough that the decision-maker exhibited irritation, impatience or even used sarcasm. (See:  Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Lockhart J, No 902/96, 18 October 1996) at 9.

27                  There must be strong grounds for a finding of actual bias. (See:  The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116.)

28                  In the present case the Tribunal considered the applicant’s claims, made findings of fact on the material before it and provided reasons to explain why, in carrying out its duty under the Act, it had determined that the applicant was not a person to whom a protection visa could be granted on that material.

29                  No ground for review of the Tribunal’s decision has been established and the application must be dismissed with costs.

Associate:

Dated: