FEDERAL COURT OF AUSTRALIA

SZRZK v Minister for Immigration and Border Protection [2014] FCA 69

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to file a notice of appeal be granted so as to permit the filing of a notice of appeal in the form annexed and marked PS 3 to the affidavit of the appellant affirmed on 5 November 2013.

2.    The draft notice of appeal as filed stand as the notice of appeal.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

Introduction

1    Before the Court was an application under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time to file a notice of appeal to this Court from orders made by a judge of the Federal Circuit Court of Australia on 11 October 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2    The first respondent did not oppose the application for an extension of time.

3    The applicant, to whom I will refer as the appellant, told me that he was in a position to and wished to make submissions on his appeal.

4    In these circumstances, I granted the extension of time and the hearing proceeded as on an appeal.

Notice of appeal

5    The notice of appeal annexed to the affidavit of the appellant filed on 5 November 2013 contained the following by way of substantive grounds:

The Appellant appeals Bias Claim, Paragraph 21 and 22 of the Federal Circuit Court of Australia given on 11 October 2013 at Sydney.

Grounds of appeal

1.    A transcript of the first hearing at the Refugee Review Tribunal held on 24 May 2012 prepared by a qualified NAATI Translator was submitted which the Judge at the Federal Circuit Court did not consider. According to the Reasons for Judgement’s Paragraph 22, it is mentioned that there were no transcripts of what occurred before the Tribunal at the first and second hearing.

2.    The Tribunal accepted that there were error made by the interpreter at the first hearing held on 24 May 2012, therefore a second hearing was arranged and I was invited for a hearing on 24 August 2012, this time the Tribunal used a different interpreter, however did not use a different interviewer. I claim the interviewer was bias and did not want to listen to my claims at all. I have even mentioned this at the hearing at the Federal Circuit Court held on 30 August 2013.

6    In a written submission filed on 11 November 2013 the appellant submitted that the decision by the Federal Circuit Court was made without proper investigation of the case. The Federal Circuit Court stated that it had difficulties accepting the appellant’s submissions as there were no transcripts before the court which stated what occurred before the Tribunal at the first and second hearing. This was untrue, the appellant submitted, as a detailed transcript prepared by an accredited interpreter was submitted at the Tribunal which resulted in the Tribunal calling the appellant for a second hearing. The appellant said that he was not satisfied with the decision of the Federal Circuit Court which was made without considering the available transcript but only relying on the reasons of the Tribunal. Having set out paragraph 22 of the decision of the Federal Circuit Court the appellant submitted that “This statement itself is bias as it is not based on the fact that a transcript was provided on which the Federal Circuit Court overlooked.”

7    In his written submission the appellant also stated that he was not satisfied with the way the interview was conducted at the Tribunal as the interviewing member and the decision-maker at the Tribunal was the same person on both the first and the second interviews. The Federal Circuit Court should have ordered the Tribunal to conduct another interview, this time with a different interviewer. This would have proved whether the interviewer was biased or not. The appellant submitted to the Federal Circuit Court, according to his submission to this Court, that the interviewer during the second hearing at the Tribunal did not want to listen to him at all and had already made a biased decision before the interview was even conducted. The Federal Circuit Court did not consider and listen to the appellant’s appeal, he submitted.

Background

8    The decision of the Tribunal was given on 17 September 2012. The Tribunal affirmed the decision not to grant the appellant a Protection (Class XA) visa.

9    Since it was not challenged, I set out by way of background certain findings of the primary judge, omitting footnotes.

10    The appellant, a national of Nepal, sought a protection visa on the ground of fear of persecution by Maoists if he returns to Nepal.

11    In his application for a protection visa, the appellant claimed he joined the Nepal Communist Party in 2001; in 2004 the army killed two Maoists on land which the appellant owned which led the Maoists to look for the appellant, and to seek to extort money from his family; this resulted in the appellant fleeing to Kathmandu, but in March 2005 Maoists attacked him causing him injuries which required treatment in a hospital for twelve days; the appellant then went to live in the area of Beni where he worked as a labourer; while in Beni, Maoists continued to ask the appellant’s parents of his whereabouts; in 2009 he returned to Kathmandu, and there obtained a visa for entry into Australia; after he entered Australia, the appellant received reports from his family that the Maoists continued to look for him.

12    The appellant supported his application to the Tribunal with a statutory declaration which gave more detailed information than the information he included in his application for a protection visa. The claim the appellant set out in his statutory declaration, however, was in essence the same as the claim he made in his application for a protection visa.

13    In addition, the appellant provided to the Tribunal a number of documents, most of them letters. Some of the letters contained statements to the effect that the appellant had been the subject of threats by the Maoists. One of these is from the Nepal Maoist Victims Association (NMVA). Three letters were from the United Tamang National Freedom Front Nepal. Two of these demanded money, and one, dated 16 July 2011, expressed displeasure at the appellant having departed Nepal and threatened physical retribution should he return to Nepal.

14    The Tribunal affirmed the delegate’s decision because it found the appellant was not a witness of truth and that his account of the events on which his claims were based was false.

15    The Tribunal dealt with its concerns about the appellant’s credibility under the headings “Evidence about threatening telephone calls”, “Evidence about joining the NMVA”, “Evidence about the applicant’s cousin being approached by Maoists” and “Delay in applying for protection”. On that basis, the Tribunal said:

[145]     Accordingly, the Tribunal disbelieves the applicant’s claims to have worked for and set up an education organisation; to have supported and worked for the UML; that Maoists leaders were killed on his lands; that Maoists have ever been to his family or anyone else to find him; that his father has ever complained to any agency about the Maoists and the applicant; that the applicant was attacked by Maoists in Kathmandu; that the applicant worked in an army camp in fear of Maoists; that the applicant left Nepal because of a fear of harm from Maoists or anyone else in Nepal; that the applicant has a cousin who was approached or harmed by Maoists; that the applicant has a cousin who went out of Nepal in fear of Maoists; that Maoists or any other group or person in Nepal wishes to harm the applicant and that the applicant is genuinely in fear of harm in Nepal.

…

[147]     … For the reasons given above, the Tribunal disbelieves the claims made by the applicant about being harmed by Maoists or that he is of interest to them and that finding includes disbelieving that he was ever harmed by or of interest to any group affiliated to Maoists.

[148]     … The Tribunal finds there is no credible evidence as to the reasons the applicant left Nepal and there is no credible evidence as to why he does not want to return there.

16    On 12 October 2012 an application was made to what is now the Federal Circuit Court on the following grounds:

1.    Tribunal did not investigate my claims adequately and made decision with speculation.

2.    Tribunal did not offer me opportunities to provide further documents.

3.    Correspondences were sent to wrong address.

17    The primary judge dealt with each of these grounds in turn and rejected them.

The appeal

18    The paragraphs of the judgment of the Federal Circuit Court which are referred to in the notice of appeal are in the following terms, omitting footnotes:

BIAS CLAIM

21.    At the hearing, the applicant made the following submissions:

I just have to say that second time they called me for the interview but they did not listen to anything I was saying; nothing at all. Whenever I said - I was trying to say what had happened to me and things in my country, they just said, “This is what happens in your country. That is what happens in your country”, and I felt that they just didn’t want to listen to me. . . . And I feel that second time also when they called me, they didn’t look happy when I went for the interview. First time when I went, the mistakes were made by the interpreter, and I had explained everything through my solicitor but mistakes were made.

22.    A difficulty in the way of my accepting these submissions is that there is not before the Court a transcript of what occurred before the Tribunal at the first and second hearing. All I have is the reasons of the Tribunal which states what occurred at the second meeting, and further states that the Tribunal disregarded the evidence the applicant gave at the first hearing “in view of the objections made to the interpreter used at the hearing”. The Tribunal’s reasons do not support the applicant’s submission. The Tribunal did indeed listen to what the applicant had to say. There is no merit, therefore, in the applicant’s claim of bias.

Consideration

19    There would appear to be a fundamental misconception in the proposed grounds of appeal as it is clear that the appellant did not tender in the Federal Circuit Court any transcript that may have been available of the first hearing before the Tribunal or of the second hearing. Further, the primary judge did not say that there were no transcripts but that there was no transcript before the Federal Circuit Court. I find that the nature of the mistake is that the appellant considers that the statutory declaration by the NAATI interpreter and translator concerning the mistakes in translation at the first hearing of the Tribunal constituted a “detailed transcript”: see paragraph 2 of the appellant’s letter dated 11 November 2013. In answer to questions by me, the appellant confirmed that the statutory declaration by the NAATI interpreter and translator was what he was referring to in the letter as the transcript. Clearly this was not a transcript of the kind referred to in the judgment of the primary judge.

20    The transcript of the hearing before the primary judge also makes it clear that the appellant did not seek to put before the primary judge the transcript of the hearings in the Tribunal beyond the statutory declaration to which I have referred.

21    I note that on 5 December 2012 a different judge of what is now the Federal Circuit Court directed that any transcript be filed and served by 15 February 2013. The primary judge, from whom this appeal is brought, took the appellant to the relevant directions at the hearing on 30 August 2013.

22    In any event, in my opinion, the presence or absence of a transcript of the first hearing in the Tribunal is not of any significance, as the matter is put, because the reasons of the Tribunal record the receipt by it of the statutory declaration from an accredited interpreter and translator in the Nepal and English languages who stated that he had listened to the recording of the hearing and set out in the declaration a number of instances in which there had been errors in the interpreting process which then led to the Tribunal stating as follows:

[41]     In the light of the statutory declaration from the accredited interpreter, the Tribunal decided that the applicant may have been denied a proper opportunity to give evidence about the issues in the review and decided to hold a hearing with the new interpreter. For that reason, the Tribunal abandoned the evidence the applicant was recorded as giving at that hearing and the Tribunal disregards it. The Tribunal elected to conduct a fresh hearing with a new interpreter to give the applicant a meaningful opportunity to give evidence and present arguments in relation to the issues arising in the review.

…

[164]     The Tribunal notes that its assessment of the applicant’s credibility is based on the issues discussed above which arose from and were discussed at the second hearing which was convened with a new interpreter. The evidence given by the applicant at the first hearing is disregarded by the Tribunal in view of the objections made to the interpreter used at the hearing, the Tribunal being unable to be certain that its questions and the applicant’s responses were properly interpreted.

23    As framed, the grounds of appeal must therefore fail.

24    Looking at the appeal more broadly there is in my opinion nothing to suggest that the primary judge erred in finding there was no merit in the appellant’s claim of bias on the part of the Tribunal: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]-[28].

25    As to the appellant’s submission that the Tribunal did not want to listen to him or that at the time of the second hearing the Tribunal member had already made up his mind and did not look at the appellant’s documents, these are mere claims in the sense that there is no material to support them. Indeed, as submitted by counsel for the Minister, the lengthy and detailed reasoning of the Tribunal member in his reasons tends against the submission that the member did not listen to the appellant or had already made up his mind. As to not looking at the appellant’s documents, this course was directed by the limited jurisdiction being exercised by the Federal Circuit Court.

26    I note that the then solicitors for the appellant, in their letter dated 19 June 2012 forwarding the statutory declaration of the qualified interpreter and translator, did not suggest that the Tribunal member should disqualify himself by virtue of having conducted the first hearing. I also note that no such application is recorded in the reasons of the Tribunal. The Tribunal noted that a representative of the appellant, as well as an interpreter, attended the second tribunal hearing.

27    The mere fact that errors were later found to have been made, and accepted by the Tribunal to have been made, in the translation of the first hearing does not establish bias. Indeed it also tends in the opposite direction. There is no other material to make out that claim of bias. To the extent that the appellant contends that the Tribunal member went ahead with the first interview even after the deficiencies in the interpretation were drawn to the member’s attention that submission, in my opinion, goes nowhere in light of the approach taken by the Tribunal in [41] and [164] which I have set out above. To the extent that the appellant contends that the Tribunal member got angry with him at the first hearing because a timely objection was not taken to the inadequacy of the interpretation, of itself that does not establish bias or ostensible bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872 at [81].

28    If there is an allegation by the appellant of bias on the part of the primary judge I reject that contention as baseless.

29    In oral submissions before me the appellant submitted that at the second hearing before the Tribunal the appellant felt the member, who as I have said was the same member as at the first hearing, was a bit biased and was not listening properly and had not been fair to him and that another Tribunal member would have listened to his claims properly. The appellant submitted that at the second hearing it was the same interviewer and he was very well aware of the appellant’s submissions and the appellant felt that the Tribunal member was biased.

30    The appellant requested a fresh look at his case as there was no condition on which he could return to his country. He submitted there had been injustice done to him and he requested a review of his case. The appellant referred to the fact that the primary judge said he was not able to accept further evidence relating to some incidents in Nepal which the appellant wished to put before the primary judge.

31    In my opinion there is nothing additional in these submissions which would establish error on the part of the primary judge in finding that there was no jurisdictional error on the part of the Tribunal. In part the appellant, understandably enough, assumed that the proceedings in the Federal Circuit Court or the appeal to this Court involved a further review of his visa application on the merits. This is not so. The proceedings in the Federal Circuit Court are in the nature of judicial review for jurisdictional error and the appeal to this Court is directed to questions of any error on the part of the Federal Circuit Court.

32    In submissions in reply the appellant said that he was not aware of the orders of 5 December 2012 made by the Federal Circuit Court, as it now is. However this contention is contradicted by what appears in the transcript of the hearing before the Federal Circuit Court on 30 August 2013. In addition, the copy of the orders made on 5 December 2012 directing that any transcript be filed and served by 15 February 2013 bear the appellant’s signature. I confirmed with the appellant that the signature on the document was his. In the circumstances I do not permit the appellant to raise the contention that he was not aware of the orders. Neither do I grant the appellant more time to adduce evidence in support of that contention.

Conclusion

33    I dismiss the appeal. The appellant is to pay the costs of the first respondent.

Associate:

Dated:    12 February 2014