FEDERAL COURT OF AUSTRALIA

MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 4 February 2015. Judge Riley of the Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 30 January 2014. The Tribunal had affirmed a decision made by a delegate of the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection) on 22 February 2013 not to grant the appellants Protection (Class XA) visas under s 65 of the Migration Act 1958 (Cth). The Minister’s delegate refused to grant the first appellant a Protection (Class XA) visa because he was not satisfied that the first appellant was a person to whom Australia owed protection obligations as required by s 36(2) of the Migration Act 1958 (Cth). The second appellant is the son of the first appellant and was 17 years old at the time of the Tribunal’s decision. The second appellant made no claims of his own for protection but applied for the visa as a member of the same family unit as the first appellant relying on s 36(2)(b) of the Migration Act 1958 (Cth). The Minister’s delegate had refused to grant a visa to the second appellant as a consequence of the refusal of the visa to his father. The subsequent proceedings to the Refugee Review Tribunal, the Federal Circuit Court, and the appeal to this Court depend upon the success of the first appellant.

2    The appellants were not represented at the hearing of the appeal in this Court but made oral submissions with the assistance of an interpreter. The notice of appeal for both appellants raised two grounds. The first ground of appeal is that the Federal Circuit Court judge “did not consider it wrong that […] the Refugee Review Tribunal applied the wrong test in [their] circumstance.” The first ground of appeal, in other words, is that the learned judge in the Federal Circuit Court ought to have concluded that the Refugee Review Tribunal had “applied the wrong legal test” to the case of the appellants. The source of that error is said to lie in “page 15, paragraph 34 and the following paragraphs” of the decision of the Federal Circuit Court.

3    Paragraph 34 in the decision of the Federal Circuit Court is brief and does no more than identify what had been the second ground of review relied upon by the appellants in the application before the Federal Circuit Court. The ground stated in paragraph 34 is that the Tribunal had “applied the wrong legal test”. The conclusion that the wrong legal test had not been applied appeared in paragraph 37 of the reasons of the Federal Circuit Court after setting out the relevant arguments and passages from the decision by the Tribunal. At [34]-[37] of its reasons (that is, in the parts identified in the first ground in the appellants’ notice of appeal to this Court), the Federal Circuit Court said:

34.    The second ground of review in the application filed on 21 February 2014 is:

The Refugee Review Tribunal applied the wrong legal test

35.    In their written submissions dated 4 December 2014, the applicants argued that the Tribunal applied the wrong legal test in relation [to] complementary protection in respect of the applicant’s medical issues in that the Tribunal considered whether medical treatment would be denied for a discriminatory or Convention reason. The applicants submitted that that was not the correct test when considering complementary protection.

36.    I accept that the Tribunal would have erred if it had assessed complementary protection on the basis of whether the significant harm was inflicted for a discriminatory or Convention reason. However, that is not what the Tribunal did in this case. The Tribunal said at paragraphs 138 and 139 of its reasons for decision:

138.    On the basis of the evidence before it, the Tribunal does not accept that the first-named applicant would be denied treatment, including dialysis, for his kidney disease due to his Tamil ethnicity or for any other Convention ground. The Tribunal further does not accept on the evidence before it that the first-named applicant would be denied treatment for his diabetes or in relation to mental health issues due to his ethnicity or for any other Convention ground. The Tribunal finds that the evidence before it indicates that the Sri Lankan government appears to be taking steps to improve access to resources and treatment.

139.    On the evidence before it, the Tribunal also does not accept the lack of dialysis machines or any lack of access to medical treatment in Sri Lanka constitutes significant harm as defined by s 36(2A). While it may be argued that lack of adequate medical treatment constitutes cruel and inhuman treatment or degrading treatment, the evidence before the Tribunal does not indicate that there is an intent to inflict severe pain or suffering (in the case of cruel and inhuman treatment) or an intent to cause extreme humiliation (in the case of degrading treatment) as required by s 36(2A). Again, the Tribunal notes that the information before it appears to indicate that the Sri Lankan government is attempting to improve access to medical treatment. Accordingly, the Tribunal does not accept that the first-named applicant will suffer significant harm as a result of the limited medical facilities providing dialysis or other treatment in Sri Lanka.

37.    Paragraph 138 concerns the question of whether the applicant faced serious harm. Consequently, the Tribunal correctly referred to discrimination and Convention grounds. Paragraph 139 concerned complementary protection. The Tribunal correctly did not refer in that paragraph to discrimination or Convention grounds. I do not accept that the Tribunal made the error alleged.

The appellants had argued in the Tribunal that the application of the complementary protection regime to the first appellant needed to be determined in light of his medical condition. The basis of that submission is in paragraph 35 quoted above. The Tribunal’s consideration of that issue was in paragraphs 138 and 139 of its reasons, which were set out in paragraph 36 of the reasons of the Federal Circuit Court.

4    The Federal Circuit Court correctly enquired into whether the Tribunal had correctly assessed complementary protection and, in particular, whether the Tribunal had assessed complementary protection on the basis of whether the significant harm claimed by the appellant would be inflicted for a discriminatory or Convention reason. What can be seen from the Tribunal’s reasons, and their consideration by the Federal Circuit Court, was that the Tribunal did not assess complementary protection on the basis of whether the significant harm was inflicted for a discriminatory or Convention reason. Rather, what the Tribunal did, as the Federal Circuit Court correctly found, was find that the first appellant did not face serious harm. The Tribunal did not accept that he would be denied treatment, including dialysis, for his kidney disease due to his Tamil ethnicity or for any other Convention ground. The Tribunal further did not accept on the evidence available to it that the first appellant would be denied treatment for his diabetes, or in relation to mental health issues, due to his ethnicity or for any other Convention ground. The Tribunal specifically found that the evidence before it indicated that the Sri Lankan government appears to be taking steps to improve access to resources and treatment. The Tribunal also did not accept that the lack of dialysis machines, or any lack of access to medical treatment in Sri Lanka, constituted significant harm as defined by s 36(2A).

5    The question of complementary protection arose in the context of the claim by the first appellant that he might not have access to the medical treatment he needs if returned to Sri Lanka. The Tribunal found that the first appellant has kidney disease that may require dialysis in the next 6 to 24 months but that there are limited dialysis facilities in Sri Lanka because the need for those facilities outweighs its available supply. The Tribunal accepted, therefore, that the first appellant may be required to wait significant time if he needs dialysis in the foreseeable future. It correctly concluded, however, that any harm he might suffer in that regard did not come within the complementary protection provisions of s 36(2A) of the Migration Act 1958 (Cth).

6    Sections 36(2)(aa), (2A) and (2B) were introduced into the Migration Act 1958 (Cth) in 2011 to provide for the grant of a protection visa to a non-citizen in circumstances where the Minister was not satisfied that Australia owed protection obligations to that non-citizen under the Refugees Convention but was satisfied nonetheless that Australia had non-refoulement obligations in respect of that non-citizen. Section 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has reasonable grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is “a real risk that the non-citizen will suffer significant harm”. Subsection 36(2A)(a) provides that a non-citizen will suffer significant harm if that person will be “arbitrarily deprived of his or her life”. Subsection 36(2B) specifically provides that the risk of significant harm in a country is not taken to include a real risk that the Minister is satisfied “is one faced by the population of the country generally and not faced by the non-citizen personally”. These provisions were considered by the Tribunal, as the Federal Circuit Court correctly observed above, and were correctly applied. The words “arbitrarily deprived” are to be given their ordinary meaning: see SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, [90]. In this case the Tribunal found that any lack of adequate medical treatment would not result from the first appellant’s ethnicity or particular circumstances but from the general circumstances faced by all Sri Lankans. The Tribunal did not expressly mention s 36(2B)(c) in its reasons but did find, for the purposes of that provision, that the risk of harm from inadequate medical treatment was a risk faced by all Sri Lankans when concluding that the first appellant would be excluded from the operation of the complementary protection regime.

7    The second ground of appeal to this Court from the decision of the Federal Circuit Court was that the judge “downplayed on the impact of the errors of interpretation which needs to be strongly considered in this appeal”. The ground of appeal referred to what the learned Federal Circuit Court judge said at paragraph 33 on page 15 of her Honour’s decision, namely:

Although there were some minor errors in interpretation, they do not, taken either singly or taken all together, indicate that the applicant was not given a fair hearing. This ground is not made out.

Her Honour’s conclusion in this paragraph was preceded by a detailed consideration of (a) the ground raised by the appellants in the proceeding before the Federal Circuit Court, (b) a consideration of the relevant principles to apply in dealing with the ground and (c) an application of the principles to the specific errors of interpretation which had been alleged. There was no error by the Federal Circuit Court in any of those three steps.

8    The appellants had alleged seven particular errors of interpretation in the hearing before the Tribunal which were submitted to have led to a breach of procedural fairness and to jurisdictional error. In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 Allsop CJ said at [9]:

The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

Accordingly it is necessary to consider whether the claims of misinterpretation were material to the Tribunal’s process or outcome, or whether it had or could have had significance to the Tribunal’s result, in evaluating whether the hearing was fair in light of the errors of interpretation that were alleged.

9    In considering the issue in that way her Honour said at [12]-[17]:

Ground 1: procedural fairness: interpreting

12.    The first ground of review in the application filed on 21 February 2014 is:

The Tribunal denied me procedural fairness because they didn’t give me a fair hearing.

13.    The applicants were not represented before this court. The application did not provide any particulars of this ground. The applicants did not file any written submissions prior to the hearing. However, at the hearing, the parties were given leave to file and serve written submissions about whether the Tribunal had correctly dealt with the issue of whether the applicant faced significant harm by reason of his medical condition.

14.    The first respondent filed and served written submissions on that issue on 18 November 2014 in accordance with the orders. The applicants filed written submissions on 25 November 2014 within the time permitted by the orders, but their written submissions addressed an issue not permitted by the orders, namely, alleged interpreting errors. On 4 December 2014, the applicants filed some further written submissions, without leave, but apparently with the benefit of legal assistance, addressing both the alleged interpreting errors and the medical condition issue.

15.    The applicant’s written submissions of 4 December 2014 attached a statement of seven alleged errors in interpretation, and set out what was actually said and what should have been said. That is, the applicant did not provide a complete transcript of the Tribunal hearing but a transcript of some very brief statements made during the hearing. Consequently, it was not possible to determine whether any of the alleged errors might have been corrected at another point in the hearing. That is, it was not possible to consider the hearing as a whole, to determine whether the hearing as a whole was fair.

16.    In any event, the matter was listed for a directions hearing on 19 December 2014. At that time, the applicants were given retrospective leave to rely on their written submissions filed on 4 December 2014 and the first respondent was given leave to file written submissions in reply by 9 January 2015.

17.    Apart from the possible interpreting errors, no denial of natural justice was alleged and there does not appear to have been any.

The appellants had put before her Honour a translation of evidence which had been given at the Tribunal which they contended did not accord with the translation which had been made. The document referred to in paragraph 15 of her Honour’s judgment claimed that the interpreter at the hearing did not properly interpret all of the evidence and that, after the hearing, the appellants had requested a different interpreter to listen to the entire recording of the hearing and to note everything which he thought was mistaken about the interpreting. The submissions to her Honour relevantly said:

The interpreter listened to the recording and noted everything which he thought was mistaken about the interpreting and provided us with the document which is attached to this submission.

It is that document which formed the basis of her Honour’s consideration of the complaint about the interpretation found at [12] to [33] of her Honour’s decision. The document locates the passage by reference numbers “3:29”, “11:14”, “11:25”, “27:42”, “40:40”, “44:15”, “47:21”, and “49:30”. Under each of these reference numbers (other than “11:25”) appeared both what was interpreted at the hearing and what the appellants contended ought to have been the proper interpretation with the benefit of the interpreter they had subsequently retained.

10    The first interpretation complained about was identified as “3:29” and was set out in the document attached to the appellants’ submissions as follows:

3:29

The reason why I called this hearing is because as I've been writing my decision and trying to make it, I realised something that I didn't put to you properly. Other issues came up after hearing. I feel like I have to put to both of you properly. And see if you're able to comment on.

Interpreter:

The reason why I asked you to come again, legally I have to let you know certain things to you. I haven't told you about these things, therefore I have to make a point to you. After the interview, I had some questions to ask you as well, that’s why I asked you to come again.

Her Honour dealt with this alleged error by saying:

First alleged error: 3.29: why the Tribunal reconvened

23.    The first alleged error concerned a passage in which the Tribunal explained why it had reconvened for a second hearing. There is no material distinction between what the Tribunal and the interpreter are alleged to have said.

Her Honour’s conclusion upon a consideration of the alleged error is correct. There is no foundation in the claimed error of interpretation to justify the conclusion that the appellants had been denied a fair hearing.

11    The second alleged error considered by her Honour was that identified in the document supplied by the appellants with the numbers “11:14”. Her Honour included in her consideration of the alleged error in interpretation what also appeared under the reference “11:25” (which appears not to have been claimed as a mistranslation but as an observation made by one of the appellants). The relevant parts of the document supplied by the appellants stated:

11:14

If anything that you don't understand that I'm saying please stop me and let me know then I'll explain it, okay?

Interpreter:

Do you understand? If you don't understand the law, she is saying that you can ask again.

11:25

Mr [Name of the first appellant]

Is she saying, if I return back to Sri Lanka now, the law won't be too harsh?

Her Honour dealt with the second alleged error in paragraphs 24-25 by saying:

Second alleged error: 11.14: asking for explanations

24.    The second alleged error concerned the Tribunal’s invitation to the applicant to ask the Tribunal to explain anything that he did not understand. In circumstances where the applicants were represented by a solicitor and migration agent, and in circumstances where the applicant was given an opportunity to lodge post-hearing submissions, I do not accept that any alleged error in this regard could have resulted in a denial of procedural fairness.

25.    The applicant’s question with the time 11.25 seems to be part of the same point. However, the applicant has not provided the answer to his question at 11.25. I assume that the question was brought to the court’s attention to demonstrate the applicant’s misunderstanding of the passage referred to in the previous paragraph. However, without the context, it is not possible to conclude that there was any denial of procedural fairness in relation to the question. Presumably, it was answered, and any confusion overcome.

Her Honour’s conclusions are correct. The invitation by the Tribunal to explain anything that was not understood did not result in a denial of procedural fairness particularly, as her Honour observed, since the appellants had been represented by a solicitor and migration agent at the Tribunal and were given an opportunity to make additional submissions after the hearing. Indeed, the passage at 11:25 would appear to indicate an appreciation of what had been interpreted as an invitation to seek clarification if something was not properly understood.

12    The third alleged error concerned the issue of the potential length of the first appellant’s stay in prison. It was identified in the document supplied by the appellants to her Honour as “27:42”:

27:42

It may be that, when I'm looking at your circumstances I may decide that, I think you may only be in prison for only, if you were in prison, because you'd be charged with these offences. You may only be there for few days, because you'll be released on bail. You'll be fined. What I'm saying is that the risk or real chance that you may actually face harm would not be real.

Interpreter:

When we look at your situation, you don't have any previous criminal records or anything. At the moment, I am thinking that they may keep you for few days. Therefore I have to think if you will face any harm.

Her Honour dealt with this alleged error of interpretation by saying:

Third alleged error: 27.42: length of stay in prison

26.    The third alleged error concerned a passage in which the Tribunal put it to the applicant that, if he were imprisoned in Sri Lanka as a result of his illegal departure, it would only be for a few days. There were some differences between what the Tribunal said and what the interpreter said. However, the differences concerned peripheral matters. The essence of the Tribunal’s statement, concerning the possible length of the prison stay, was adequately interpreted.

There were, as her Honour indicated, some differences between what was interpreted and what her Honour accepted as having been the correct interpretation (based upon what had been submitted), but the differences did not affect the substantial matter being conveyed. There is no denial of procedural fairness from any difference in the interpretation.

13    The fourth alleged error of interpretation was identified in the document by reference to “40:40” and refers to the second appellant and militias. The document supplied to the Federal Circuit Court by the appellants identified the interpretation errors as follows:

40:40

[Name of the first appellant]:

He doesn't know about Sri Lanka. If they look at youth, Army doesn't like them. There are still other para military groups. Even though the LTTE is not there, there are other groups such as EPDP, Karuna group and other groups. Even if they force him to join, he is my only son. If he goes there his life won't be good. That's why I came here. If not, it won't take me long to go back there from India.

Interpreter:

My son doesn't know anything about Sri Lanka. At his age, what makes possibility of being kidnapped and all that real. There are other movements whether it's LTTE, EPDP or any other Karuna group, all those people. And he's my only son and his life there would be awful. I mean, that's why I came here to safeguard his life.

Her Honour dealt with this ground by saying:

Fourth alleged error: 40:40: the second applicant and militias

27.    The fourth alleged error concerned the applicant’s claim that his son would be at risk from militias such as the LTTE, the EPDP and Karuna and that his life in Sri Lanka would not be good. The interpreter used somewhat different words, but conveyed the essence of the applicant’s claims.

Her Honour was correct in her conclusion that the words may be somewhat different but conveyed the essence of what the first appellant was saying to the Tribunal. Both the substance and the detail of the first appellant’s concerns are similarly (if somewhat differently) clearly conveyed by either interpretation.

14    The fifth alleged error concerned the level of risk from the LTTE. The document supplied by the appellants identified the errors of interpretation as follows:

44:15

Same with the para-military, like the Karuna group for example. I mean the LTTE is not operating in Sri Lanka at the moment. So I think if you are talking about the risk that your son may face being kidnapped by the LTTE I think the risk is very extremely minimal.

Interpreter:

LTTE is no longer there. Even if they are there they are very minimal. But through Karuna group that's working with the Government, there may be some problem.

Her Honour dealt with this alleged error by saying:

Fifth alleged error: 44.15: risk from LTTE minimal

28.    The fifth alleged error concerned the Tribunal’s statement that the LTTE was no longer operational, so the risk from it was minimal. Again, the interpreter used somewhat different words but conveyed the essence of what the Tribunal said.

Her Honour was correct in her conclusion that the somewhat different words used in the interpretation conveyed the essence of what the Tribunal was saying. The passage in question is of the Tribunal putting something to the appellants. Either interpretation conveyed that the risk posed by the LTTE was not significant to the outcome of the review in contrast with whatever might be the position in regards to the Karuna group. The Tribunal’s consideration of the risk posed by the LTTE and its consideration of the relevance of Karuna was plainly brought to the attention of the appellants by either interpretation.

15    The sixth alleged error concerned the issue of whether the first appellant’s fears were justified. The relevant parts in the document supplied by the appellants identified the differences in interpretation as follows:

47.21

As I said I can understand that you have fear and I accept that you are very scared of going back. I accept that you're fearing for your son. But I guess, what I have to, my job is deciding on whether your fears are justified. That's something different than just having the fear.

Interpreter:

What's she saying is that, I understand your fear. I understand your situation. I understand what you are worried about. I have no difficulty with accepting that. My job is to make sure if you are within the boundaries of the law. I have only that right.

Her Honour dealt with this claim of misinterpretation by saying:

Sixth alleged error: 47:21: whether fears justified

29.    The sixth alleged error concerned the Tribunal’s statement that it accepted that the applicant had a subjective fear, but had to consider whether the fear was justified. The interpreter said that the Tribunal had no difficulty accepting that the applicant felt fear, but had to work out whether he was within the boundaries of the law. There is a difference between the Tribunal considering whether the applicant’s fears were justified and the Tribunal considering whether the applicant was within the boundaries of the law.

30.    However, the delegate, at CB214, clearly distinguished the ideas of subjective and objective fear. The applicant can therefore be taken to have been aware of that distinction. The applicants also were represented by a solicitor and migration agent, who presumably explained to them the basic requirements for the grant of a protection visa. In all the circumstances, I do not accept that the misinterpretation in relation to this point resulted in a denial of procedural fairness.

Her Honour’s conclusions are correct. Either interpretation informed the appellants that the subjective fear felt by the appellants was not determinative of the matter from the point of view of the decision-maker. The appellants were not deprived procedural fairness by any difference in the interpretation.

16    The seventh error claimed in the interpretation concerned the evidence of the first appellant concerning his kidney function. The differences in interpretation is found in the document supplied by the appellants as:

49:30

Mr [name of first appellant]

They have given me tablets for this. Now, instead of 20% only 18% working at the moment. If it goes down to 10% they will put the dialisis.

Interpreter:

It's working at 20% capacity at the moment, when it goes down to 10% I have to do dialisis.

Her Honour dealt with this difference of interpretation by saying:

Seventh alleged error: 49.30: kidney function

31.    The seventh alleged error concerns the applicant’s statement that he had 18% kidney function at that time, and if it went down to 10%, he would have to have dialysis. The interpreter said that the applicant had 20% kidney function at that time, and if it went down to 10% he would have to have dialysis. The Tribunal noted at paragraph 93 of its reasons for decision that the applicant had said that he had 20% kidney function.

32.    However, at paragraph 129 of its reasons for decision, the Tribunal accepted written medical evidence, submitted post-hearing, that the applicant had between 15 and 20% kidney function and would probably require dialysis within six months to two years. Consequently, the error in interpretation was overtaken by later evidence and was consequently immaterial.

The passage in question concerned the evidence of the first appellant about the working of his kidney and the potential for him to require dialysis. The difference between the two interpretations is not significant from the point of view of whether the appellants were afforded procedural fairness. Nothing has been shown to turn upon whether the kidney was working at either 18 or 20 percent. The Tribunal noted, as her Honour observed, that the first appellant had said that he had only 20% kidney function but there is no suggestion that a kidney function of 18 percent, rather than 20 percent, was in any way material to the outcome. Furthermore, as her Honour observed at [32], the Tribunal accepted written medical evidence which had been submitted after the hearing that the first appellant had between 15 and 20 percent kidney function and that he would probably require dialysis within six months to two years. Thus, whatever (if any) effect the difference in the percentage of kidney function as revealed in the two translations may have had, it was superseded by subsequent evidence provided by the appellants and accepted by the Tribunal. In any event, the difference in interpretation did not result in the appellants not being given a fair hearing.

17    Her Honour was correct in her conclusions and, therefore, the appeal will be dismissed.

Associate:

Dated:    18 May 2015