FEDERAL COURT OF AUSTRALIA

SZNCY v Minister for Immigration and Border Protection [2018] FCA 691

ORDERS

THE COURT ORDERS THAT:

1.    Appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The first, second and third appellants, who are respectively husband, wife and daughter, appeal from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 26 July 2017 by which it dismissed an application for judicial review of a decision of the second respondent (Tribunal): see SZNCY v Minister for Immigration and Border Protection [2017] FCCA 1742 (SZNCY). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellants Protection (Class XA) visas.

background

2    The appellants are citizens of India. The husband and wife were both born in Trivandrum (also known as Thiruvananthapuram) in the state of Kerala. They arrived in Australia on 16 May 2008. The third appellant, their eldest daughter, was born in Australia on 17 March 2010. The husband and wife have, since lodging their applications for protection visas described below, had another child who is not a party to this appeal.

3    The wife first applied for a protection visa in 2008, including the husband as a member of the family unit. That application was refused by a delegate of the Minister. The delegate’s decision was subsequently affirmed by the Refugee Review Tribunal (RRT) in 2008.

4    In 2010 the daughter applied for a protection visa, including her parents in the family unit. That application was refused by a delegate of the Minister and that decision was subsequently affirmed by the RRT in 2011.

5    In 2012 the husband lodged a further protection visa application, including the wife and daughter as members of the family unit. That application was considered by a delegate of the Minister to have been invalidly made.

6    On 9 May 2014 the appellants lodged a further protection visa application (Current Application) which was acknowledged to be valid on the basis of the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ).

7    The Current Application was supported by a statutory declaration made by the husband on 8 May 2014. In summary, the husband said that:

(1)    he and his father had been involved in politics, had been in the Communist Party of India and had later joined the Congress Party;

(2)    he was asked whether he wanted to be a candidate for the Thiruvananthapuram Corporation elections in March 2014. He stood as a candidate but he lost by seven votes;

(3)    just prior to the election there were clashes and two of his supporters were injured. The rival candidate, Shankar, and his supporters went to the appellants’ house, ransacked it and threatened that if he came back he would be killed; and

(4)    he rang and spoke to Shankar. They had an argument and Shankar threatened him, saying that he knew the police chief, that he had committed murders before and that if the husband returned he would “not live more than two or three days”.

8    On 14 October 2014 a delegate of the Minister refused the Current Application. The appellants applied to the Tribunal for review of the delegate’s decision and on 29 January 2016 the Tribunal affirmed the delegate’s decision.

the Tribunal proceeding

9    The appellants provided the Tribunal with undated written submissions made by the husband, an undated statement made by the wife (Wife’s Statement) and a bundle of documents. The appellants were invited to and attended a hearing before the Tribunal to give evidence and present arguments relating to the issues in their case. The hearing was conducted with the assistance of an interpreter in Malayalam and English.

10    The Tribunal did not accept that the appellants were persons to whom protection obligations were owed and concluded that the decision under review should be affirmed.

11    The Tribunal set out the appellants’ migration history, referring to the four applications for protection visas that had been made by: first, the wife; secondly, the daughter; thirdly, the husband; and, finally, again the husband via the Current Application.

12    At [34] of its decision record the Tribunal noted that a delegate’s conclusion that the third protection visa application was invalid was possibly incorrect. At [41] the Tribunal referred to SZGIZ and then said:

41.    … the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), at least with respect to some of the claims, and understands it should proceed to consider some of the applicants claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

42.    However, given the volume of claims made, the fact that some appear to be subject to the Full Federal Court in SZGIZ v MIAC, and that others may not, I have decided to draft this decision with reference to both the Refugee Convention and the complementary protection provisions in the Migration Act.

13    In summary, the Tribunal:

(1)    accepted that the husband and his father had been members of the Communist Party of India and the Congress Party; the husband’s father was abducted in 2001 and has since remained missing; the husband was subject to some mistreatment around this time; and the husband then travelled to Malaysia where he stayed for the next five and a half years, returning to India in December 2007;

(2)    accepted that upon his return to India the husband returned to his own home in Kerala and remained there for six months; was subject to an attack while in his home; thereafter travelled to Australia in May 2008; and was threatened over the telephone in 2014 or 2015 by a Congress Party person in Kerala who did not wish the husband to return to contest the election for membership of one of the committees for the local Congress Party;

(3)    accepted that the husband may wish to continue with political activities in Kerala and that, if he did, he would face a real chance of suffering serious harm by reason of his political opinion in Kerala;

(4)    accepted that the wife would have a real chance of suffering serious harm for reason of her religion should she return to her home area in Kerala but did not accept that the wife would wish to belong to a group of persons seeking to convert persons to Christianity should she return to India;

(5)    was not satisfied, based on what the husband claimed to have done in Australia, that he would wish to convert Hindus or others to Christianity should he return to India. The Tribunal believed that claim was false and did not consider it further. Nothing the husband said during the hearing or elsewhere satisfied the Tribunal that he would have a real chance of suffering serious harm because of his religious practice should he return to India;

(6)    considered that the harm experienced in the past by the husband related to local issues, mainly within local committees in the Communist Party of India or Congress Party in Kerala. The Tribunal said at [65] of its decision record that it was not satisfied that “the accepted incidents, would now even motivate anyone to attempt to trace the applicant husband, should he (and his family) return to a safe relocation place in India”;

(7)    was not satisfied that the wife would wish to continue to be engaged with any group in India that may be accused of converting Hindus or others to Christianity. The Tribunal was satisfied that the wife’s substantially reduced Christian work in Australia was a result of her new obligations as a mother to two children and as a wife. It was satisfied that those obligations would mean that the wife would choose to only involve herself in the same type of work for the church in India as she is able to do in Australia. The Tribunal was not satisfied that there was a real chance that there would be any attempt to locate the wife should she relocate in India; and

(8)    was satisfied that the appellants could safely and reasonably relocate within India and not have a real chance of suffering any serious harm for any reason.

At [83] of its decision record the Tribunal found that the appellants did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (Act). The Tribunal was not satisfied that the appellants were persons in respect of whom Australia has protection obligations under the Refugees Convention.

14    The Tribunal further concluded at [87] of its decision record that it was not satisfied that the appellants had “a real risk of suffering significant harm for reason of any claim [it had] accepted, should they relocate”. It also noted that it was not satisfied that the appellants had a real risk of suffering significant harm for any other reason. The Tribunal was thus not satisfied that the appellants were persons in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

Proceeding before Federal Circuit Court

15    The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court. Before that court they relied on a further amended application in which they raised three grounds. Only the findings in relation to grounds two and three, set out below, are challenged on appeal:

2.     Further or in the alternative, in finding that the first and second applicant could safely relocate within India and therefore was not owed protection, the Tribunal did not consider whether internal relocation was reasonable in all of the circumstances.

…

3.     Further or in the alternative to 1 and 2, the Tribunal failed to consider a claim.

Particulars

The Tribunal failed to consider whether the second and/or third applicants met the criterion set out in section 36(2)(aa) of the Act.

16    In relation to ground two the primary judge concluded that, on a fair reading of the Tribunal’s reasons, it properly considered whether it was reasonable in their individual circumstances for the appellants to relocate. In reaching that conclusion the primary judge made the following findings:

(1)    the Tribunal took into account what the wife said in relation to her work with low caste persons and that there was no claim, either expressed or implied on the material, that the wife feared harm in relation to relocation by reason of her caste: SZNCY at [26];

(2)    the Tribunal took into account the fact that the appellants not only had a daughter but a second child and, on a fair reading of the Tribunal’s reasons, it took into account the wife’s concern in relation to her obligation to care for her children. The primary judge did not accept that any claim arose on the material that the wife feared harm because of her gender. The primary judge found that, on a fair reading of the transcript of the hearing before the Tribunal, it was apparent that when the issue was sought to be clarified with the wife, she identified her concern as being in relation to her care and responsibility for her children. His Honour found that that issue was taken into account and was the subject of dispositive findings by the Tribunal in its determination that it was reasonable for the appellants to relocate: SZNCY at [27]-[28]; and

(3)    the Tribunal considered issues of health and education and the husband’s claimed concern in respect of localised political activity: SZNCY at [29]-[30].

17    In relation to ground three the primary judge held that there was no failure by the Tribunal to make appropriate findings in respect of relocation and a claim for complementary protection for the wife and the daughter. By reference to the reasons he had already given, the primary judge did not accept that there was a claim advanced on behalf of the wife or the daughter to fear harm by reason of being a member of a caste. The primary judge also found that on a fair reading of the Tribunal decision it had made findings in relation to whether it was reasonable or practical for the wife and daughter to relocate: SZNCY at [31]-[32].

The appeal

18    The appellants commenced this proceeding by filing a notice of appeal on 9 August 2017. The appellants seek leave to file an amended notice of appeal which raises the following grounds:

1.    His Honour erred in finding that the second respondent (Tribunal), had considered all of the first and second appellants' claims in concluding that they could reasonably relocate within India.

2.    His Honour ought to have found that the Tribunal committed jurisdictional error by failing to consider whether relocation was reasonable in all of the circumstances, namely whether their children would be subject to discrimination based on upon (sic) caste membership or whether it was otherwise safe for the children to relocate to another part of India.

3.    Further or in the alternative, his Honour erred in finding that that no claim had been advanced on behalf of the third appellant based upon caste membership and that the Tribunal had considered whether relocation of the third appellant was reasonable in all of the circumstances.

4.    His Honour ought to have found that the Tribunal committed jurisdictional error by failing to consider the claim advanced on behalf of the third appellant that she was in danger and that there may be "terrible consequences" for her.

5.    Further or in the alternative, by reason of interpreter error, the appellants were denied a reasonable opportunity to give evidence and present arguments before the Tribunal.

19    The first four grounds of appeal challenge the findings of the primary judge in relation to grounds two and three in the application before the Federal Circuit Court. The fifth ground is new and was not raised below.

20    The Minister does not oppose leave being granted to the appellants to rely upon grounds one to four of the amended notice of appeal, but does object to the appellants relying upon proposed ground five and the fresh evidence on which the appellants seek leave to rely in support of that ground.

Grounds one and two

21    By grounds one and two of their amended notice of appeal the appellants contend that the primary judge erred in finding that the Tribunal had not failed to consider whether relocation was reasonable in all of the circumstances. They contend that the Tribunal did not consider the husband and wife’s claims that their children would be subject to discrimination based upon caste membership or whether it was otherwise safe for the children to relocate to another part of India.

22    For the reasons that follow these grounds are not made out. There was no error on the part of the primary judge.

The parties’ submissions

23    The appellants submitted that grounds one and two amounted to an allegation that the primary judge erred in failing to find that the Tribunal failed to consider the claims made concerning the daughter’s safety in the context of considering whether it was reasonable for the appellants to relocate. They submitted that, in addition to the wife’s claims based on religious practice, the wife had also claimed to be a member of a caste classified by the Indian government as the “Other Backward Community” (OBC) or “Other Backward Class” and had claimed that the daughter was “also at risk of harassment and attacks”. They submitted that a claim based on the daughter’s caste was expressly made or, at least, clearly arose from the materials.

24    The appellants further submitted that, even if the Tribunal had understood that the wife was not claiming that she herself would be persecuted because of her caste membership, the Tribunal did not consider whether the daughter would be subject to harm upon relocation because of her caste membership. The appellants contended that the husband and wife had said at the Tribunal hearing that they could not relocate because of the risk to their children’s safety and that the Tribunal had not considered that issue. They submitted that, while the Tribunal was not satisfied that “health or education would make it unreasonable for the applicant wife (and family) to relocate”, that finding did not take into account the safety of the children. The appellants said that the children’s claims of safety should have informed the Tribunal’s decision as to whether it was reasonable to relocate. They argued that raising internal relocation safety concerns was not synonymous with the absence of persecution or significant harm but that safety was a reason why relocation was not reasonable in the circumstances.

25    The Minister submitted that the task for the Tribunal in considering the reasonableness of relocation is largely driven by the case sought to be made by the appellants, relying on Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443. The Minister further submitted that the wife did not make a claim to fear harm on the basis of her caste, either on her own behalf or on behalf of her child, independent of her broader claims concerning politics and religion. He contended that the information provided by the wife concerning her caste was provided in the context of her claim to fear harm on the basis of her religion and was not a claim that she faced harm based on her (or her daughter’s) caste membership.

26    The Minister argued that no claim was raised on behalf of the daughter independent of the claims made by her parents. He submitted that the claim that the daughter was “also at risk of harassment and attacks” was based upon the risk of harm said to be faced by her parents. The Minister contended that the Tribunal considered the claimed risk of harm and the reasonableness of relocation in respect of all of the appellants based upon the claims made by the husband and wife on behalf of the family and, in doing so, did not overlook the daughter.

Consideration

27    The resolution of these grounds depends on whether the daughter’s claims were independent claims or whether they depended on the parents’ claims.

28    To resolve that issue it is necessary to consider in further detail the claims made by the appellants and in particular those made by the wife who, the appellants contend, raised the issue of the children’s safety.

29    In the Wife’s Statement provided to the Tribunal the wife said that:

(1)    she belongs to an OBC caste in Kerala called the “Christian Other Backward Community”;

(2)    the majority of people in her village are Hindu and, unlike other groups that receive welfare support from the government, the OBC is the subject of discrimination. She said that “[t]he government favours its own people and does not help lower caste people or members of the OBC (other Backward Castes) like me”; and

(3)    she fears that if she is forced to return to India she will be at risk of harm because of her caste and her religious beliefs which would place her daughter in danger.

30    After setting out, among other things, her family background, her education and her work history, including her involvement in teaching bible classes converting people to Christianity, at [34]-[36] of the Wife’s Statement she said:

34.    I am seeking protection for my daughter in Australia, as I am vulnerable to harassment and attacks for reasons of my race, religious works and assistance to the Scheduled Castes and Schedules Tribes in Kerala. I fear for my life if I am forced to return to India and the terrible consequences this may have for my daughter, who is also at risk for harassment and attacks.

35.    I have committed my life to Christianity and have converted a lot of people from Muslim and Hindu backgrounds, but the most important thing in my life is the life of my child. Since I have been in Sydney I have attended the Holy Trinity Catholic Church in Granville, and also I am conducting prayer meeting twice in a month. And I am conducting adoration and Holy mass.

36.    I ask the Australian government to protect me and my family.

31    At the Tribunal hearing the following exchange took place between the Tribunal member and the wife:

Tribunal Member:    Ok. Now the country information that I have seen indicates that failed asylum seekers who are returned to India are not harmed. However it is my understanding that the reason you think you will be harmed is because of your claims that we have discussed. Is that correct?

Interpreter (wife):    There are a lot of people suffering when going back so we cannot get everything in the computer when we search about that suffering.

Tribunal Member:    So there's no health or education problems in India that concern you. It is merely your safety for instance?

Interpreter (wife):    Yes

Tribunal Member:    I understand what you have said. India is a massive country an absolutely massive country and I am still trying to work out why you don't think you can safely relocate within India.

Interpreter (wife):    I am a woman

Tribunal Member:    You are not a single woman now. You are a woman with 2 children, 2 young children and a husband.

Interpreter (wife):    That is the main reason. If I am on my own there is no problems with my safety.

Tribunal Member:    Sorry this is not making sense to me. If you are a woman alone in India there is no problems for your safety. Please say that.

Interpreter (wife):    It's not like that always. Only I am there nobody else is there.

Tribunal Member:    My apologies but I do not understand what you just said. I will go back to my initial question. Why don't you think you and your family can safely relocate, safely and reasonably relocate in India?

Interpreter (wife):    Now with a family it is easy to hurt us. So instead of hurting me they can hurt my husband or my children.

Tribunal Member:    And I do know that you said that your husband was attacked by persons in your parents' village in 2008.

Interpreter (wife):    Yes

Tribunal Member:    Ok, I understand what you have said. Is there anything else that you wish to talk about?

Interpreter (wife):    Only my family's safety.

Tribunal Member:    No, no so that's all you wish to say?

Interpreter (wife):    Only for my family's safety

32    At [13] of its decision record the Tribunal clarified its understanding of the claims made by the wife, noting that it understood that she was not claiming to be persecuted because of her membership of a subservient caste but because she had worked with low caste persons in India. The Tribunal noted that it had discussed religious conversion in its decision record “but given [its] aforementioned understanding, [it had] not discussed her alleged caste membership further [in the decision record]”.

33    There was no express or implicit claim made on behalf of the daughter based on her membership of the wife’s caste. The daughter made no independent claims. Her claims were totally dependent on those of the parents. In particular the wife expressly said that it was her fear of risk of harm, it seems only because of her religious beliefs and associated activities, such as attempting to convert people to Christianity, which would put her daughter in danger. Paragraphs [34]-[36] of the Wife’s Statement must be read in context and in light of all the matters included in the Wife’s Statement. Once that is done it is clear that the wife seeks protection for her daughter in Australia because of her claimed vulnerability and the bases upon which she fears harm.

34    Similarly, the exchange between the Tribunal and the wife set out at paragraph [31] above cannot be considered in isolation. The wife, when questioned about why she said she could not relocate, referred to her family but she did so after an exchange about her claims, noting that instead of hurting her they could now hurt her husband or her children. After the Tribunal member observed that the wife had in fact said that her husband had been attacked in 2008, she reiterated her concern for her family’s safety. Again that exchange cannot be said to constitute an independent claim by the children or the daughter to fear harm.

35    The Tribunal considered the wife’s claimed fear of risk of harm and the reasonableness of relocation at [68]-[69] of its decision record where it said:

68.    The Tribunal also understands that in Appellant S395/2002 by majority, the High Court held it is an error to fail to consider whether the need to act discreetly to avoid a threat of serious harm (including on relocation) constituted persecution (the Tribunal understands this authority is equally relevant to assessments under complementary protection). The unifying principle underlying the two joint majority judgments in S395 was that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. However, for the reasons set out herein, I am not satisfied the applicant wife would wish to continue to be engaged with any group in India, that may be accused of converting Hindus (or others) to Christianity. I am satisfied her substantially reduced Christian work in Australia is as a result of her new obligations as a mother to two infant children and as a wife. I am satisfied the same obligations would mean the applicant wife would voluntarily choose to only involve herself in the same type of work for the Church in India, as she is able to do in Australia. Further, based on the findings made and given the relevant events of conversion occurred in and prior to 2008, the Tribunal is not satisfied there is a real chance there would be any attempt to locate the applicant wife should she relocate in India. At any rate, the Tribunal is satisfied the applicant wife would·not have a real chance of suffering serious harm, should she safely relocate away from her home region in Kerala.

69.    The applicant husband and applicant wife also said it was not safe in India due to religion, politics and terrorism. The applicants also referred to an escalation of violence between Muslims, Christians and Hindus, though none of the country information considered by the Tribunal has satisfied it that without more, all Muslims, Christians and Hindus would have a real chance of persecution for these reasons in India. Importantly, the Tribunal was ultimately satisfied the applicants could safely and reasonably relocate within India, and not have a real chance of suffering any serious harm for any reason.

(footnotes omitted)

36    The Tribunal considered the reasonableness of relocation for the appellants including the children. At [87] of its decision record the Tribunal again found it was satisfied that the appellants, including the daughter, did not face a real risk of significant harm for any claim it had accepted should they relocate. It expressly found that the appellants could “safely” relocate.

37    The appellants referred in particular to [73] of the Tribunal’s decision record and submitted that it was the closest the Tribunal came to considering the appellants’ children where it stated:

The applicant husband had worked in India, Malaysia and Australia . He was tertiary educated in India and Australia and had (as noted above), shown himself capable of travelling to and residing and working in both Malaysia and Australia. The applicant husband also speaks two languages. Further, none of the evidence considered herein, has satisfied the Tribunal that health, education or employment prospects, would make it unreasonable for the applicant husband (or his family) to relocate within India.

(emphasis added)

38    But paragraph [73] must be read in context of the whole decision including [68]-[69] (at [35] above) and [72] where the Tribunal said:

When asked at hearing, the applicant husband's only concern was that it was not safe for him and his family to relocate within India. However, and for the reasons set out above, the Tribunal is not satisfied the applicant husband would have a real chance of suffering any harm should he relocate within India. …

39    In my opinion, the Tribunal considered the reasonableness of relocation in accordance with the accepted principles – that is, by reference to the appellants’ particular circumstances as evidenced by their claims and the impact of relocation on them: see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [23]-[24] (per Gummow, Hayne and Crennan JJ).

40    Before leaving these grounds I need to address an oral submission made by the appellants about [29] of SZNCY where the primary judge said:

Mr Chia of counsel also submitted that there was a failure to take into account issues of health and education. That is contrary to the express findings made by the Tribunal which reflect taking into account these matters.

41    The appellants referred to their written submissions in the court below where they contended that “the Tribunal [did not] take into account the first and second [appellants’] two infant children in purporting to consider whether relocation was reasonable, beyond considerations of the factors of health and education” and submitted that the primary judge, in misunderstanding their submission, had erred. It is not clear whether the primary judge misunderstood the submission, whether there was any exchange between the primary judge and the appellants about the submission or whether the submission was simply dealt with in haste and so incorrectly recorded. I note that the primary judge made orders on the same day as the hearing and provided ex tempore reasons. A transcript of the hearing has not been provided and I am thus not able to consider what in fact occurred at the hearing. But, in any event, the appellants have now had an opportunity to put a similar submission before me and I have considered it in the context of grounds one and two of the appeal.

Grounds three and four

42    Grounds three and four allege that the primary judge erred in finding that the daughter did not advance a claim based on her caste membership and in finding that the Tribunal had considered whether it was reasonable for her to relocate. The appellants contend that the daughter advanced such a claim, which the Tribunal did not consider, and that the Tribunal did not consider whether relocation was reasonable for the daughter in all circumstances.

43    For the reasons that follow these grounds are not made out. There was no error on the part of the primary judge in making the findings that he did.

The parties’ submissions

44    The appellants submitted that the wife, on behalf of the daughter, made a claim that the daughter was “also at risk of harassment and attacks” which the Tribunal needed to assess against the criteria in s 36(2)(aa) of the Act. They pointed to [87] of the Tribunal’s decision record, where the Tribunal noted that it was not satisfied that the appellants had a real chance of suffering serious harm should they relocate and that “[f]or the same reasons, [it was] not satisfied they have a real risk of suffering significant harm for reason of any claim [it had] accepted, should they relocate”. The appellants contended that the Tribunal had not only not accepted that the daughter had a real chance of suffering serious harm but that it had never considered that claim at all.

45    The Minister submitted that the appellants could not succeed on grounds three and four because, for the same reasons he put forward in relation to grounds one and two, no claim was made on behalf of the daughter on the basis of her caste. That is, as set out at [26] above, it was said that the daughter made no claims independent of those made by her parents.

46    The Minister further submitted that, based on the materials, it was not entirely clear to which caste the daughter belonged. He submitted that as the wife’s claims concerning her caste were religion and location specific, the daughter would not necessarily belong to the same caste as the wife. The Minister thus questioned the proposition that the wife’s caste membership could meaningfully affect the daughter’s safety in a region other than Kerala. He contended that caste membership would not “necessarily follow the appellants to a different geographical area”. Thus, it appeared the daughter would not be a member of the same caste and community if she was not located in the same geographical location (i.e. Kerala).

47    As to relocation, the Minister submitted that the Tribunal adequately took into account the daughter in assessing whether it was reasonable for the family to relocate. He submitted that the Tribunal was aware of, and made express reference to, the children and repeatedly found that the appellants, including the daughter, would be able to safely and reasonably relocate. The Minister submitted that there was no obligation for the Tribunal to separately take into account the safety of the children and that its findings concerning all of the appellants disposed of the basis of the risks claimed to be faced by the whole family.

Consideration

48    As was recognised by the parties, there is some overlap between the matters canvassed in grounds three and four and those in grounds one and two, in particular, whether the daughter made an independent claim for protection based on her caste membership. My findings and comments at [33]-[34] above apply equally to these grounds. I am not satisfied that the daughter made any independent claims, including any claim based on caste membership. Her claims were entirely dependent on the claims of her mother.

49    The Tribunal set out and applied the test for complementary protection under s 36(2)(aa) of the Act at [84]-[94] of its decision record. The issues which arise when considering the reasonableness of relocation as part of a complementary protection claim are the same in assessing claims for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act. It was open to the Tribunal to rely on its earlier factual findings in relation to that issue where the same facts and circumstances were relied on by the appellants for both refugee and complementary protection claims: see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [37]; DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [54].

Proposed ground five

50    The appellants seek leave to rely on ground five of their amended notice of appeal by which they allege that there were interpretation errors during the Tribunal hearing that denied the appellants a reasonable opportunity to give evidence and present arguments before the Tribunal. While not specified in the ground itself, the appellants assert in their submissions that the interpretation errors amounted to breaches of s 414 and s 425 of the Act.

51    The appellants also seek leave to rely on an affidavit of Jackson-Fernandez Philip-Fernandez, an interpreter in Malayalam and English, sworn on 14 November 2017 (Interpreter Affidavit) in support of ground five. Mr Philip-Fernandez gives evidence that he has listened to a recording of the appellants’ Tribunal hearing, read the transcript of the Tribunal hearing and identified five points in the hearing where interpretation errors were made. Mr Philip-Fernandez annexes a transcript of part of the Tribunal hearing which includes those parts where he says the interpreter erred.

52    The Minister objected to the appellants raising ground five and to the whole of the Interpreter Affidavit on the grounds of relevance and prejudice. He submitted that if the Court did not allow the appellants to rely on ground five, it followed that the Interpreter Affidavit was not relevant. He also submitted that he was prejudiced because it had been served so late in the proceeding, although there was no evidence of the prejudice.

53    The Minister has not demonstrated that he is prejudiced by the Interpreter Affidavit beyond a mere assertion. As further discussed at [77] below there is no evidence to that effect nor was there any request for an adjournment to address it. The Interpreter Affidavit is relevant to the determination of the issue of whether the appellants should be permitted to raise a new ground on appeal. It is relied on by the appellants and the Minister to make good their opposing arguments. Accordingly, I will allow the appellants to rely on Mr Philip-Fernandez’s affidavit.

Parties’ submissions

54    The appellants submitted that ultimately the question of whether leave should be granted depended on whether it was expedient in the interests of justice for them to be permitted to rely upon the new ground of appeal. They relied on the factors identified in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 (SZKCQ) at [9]-[10] as being relevant to the exercise of the Court’s discretion to grant leave to rely on a new ground.

55    As to why the ground was not raised before the primary judge, the appellants submitted that they were not aware of the full extent of the interpreter’s errors at the time of the Tribunal hearing or at any time thereafter. While they noted that they were represented before the primary judge, they contended that they were unrepresented at the time of the commencement of the appeal and submitted that because ground five relies on facts that were not available to them until much later, even if they were represented, they could not have raised the issue earlier. The appellants submitted that the fact that ground five relies upon factual information which only became available some time after the Tribunal’s decision was a reasonable explanation as to why, at least for the period between the Tribunal hearing and the appellants’ discovering the factual basis, the ground had not been raised earlier.

56    The appellants contrasted the decision in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [105] where Jessup J said that the two new grounds sought to be introduced there were:

… based wholly upon the terms of the written reasons of the reviewer given on 4 July 2011 … [and were] both purely legal grounds, consisting … of administrative law arguments which were always available to the appellant to the extent that he had competent legal representation. It is not as though either of the grounds depend upon factual information which became available only some time after the reviewer’s decision.

The appellants submitted that in their case ground five did depend on factual information which only became available sometime after the Tribunal’s decision.

57    The appellants submitted that there was merit in granting leave to rely on ground five. They submitted that one of the key issues in the Tribunal’s decision was whether the second appellant would seek to engage with a group which attempted to convert people to Christianity in India. They noted that the Tribunal found at [58] of its decision record that the second appellant attended church and “prayer groups” twice a week and that it concluded that, now she has two infant children, it did not accept that the wife would not engage with groups seeking to convert people to Christianity on return to India.

58    Relying on the Interpreter Affidavit, the appellants submitted that the wife had in fact said that she was “not just going to church … [but] doing [their] charity works through Marian Japamala Sakhyan” and that the Tribunal member had understood this to mean that she went to church “more than once a week”. The appellants submitted that the fact that the wife not only went to church but also did charity work was not considered by the Tribunal. The appellants contended that the husband said a similar thing but it was not interpreted into English. The appellants argued that these errors in themselves materially affected the Tribunal’s decision and, cumulatively, all of the interpretation errors resulted in the hearing being unfair.

59    The appellants submitted that it was not necessary to establish a breach of s 414 or s 425 of the Act that the Tribunal made an error of fact based upon an error in interpretation. The appellants submitted that rather, what mattered was that they had not had a reasonable opportunity to present their case. They contended that what they had actually said in Malayalam had not been properly interpreted into English at the hearing which, in turn, affected whether they had a reasonable opportunity to present their case.

60    The Minister submitted that the appellants had failed to provide an adequate explanation as to why ground five was not raised before the primary judge, that it would prejudice the Minister’s ability to respond and test the evidence if leave was granted and that the appellant had failed to demonstrate that the ground has merit.

61    In relation to merit the Minister submitted, relying on Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [65] (Gill), that in order for the proposed ground to be made out it was necessary for the appellants to demonstrate that the interpretation errors were material to the Tribunal’s decision but that they have not done so. The Minister noted that the appellants have not properly particularised their assertion that the Tribunal overlooked their charity work in Australia.

62    The Minister referred to the following exchange included at p 9 of the Interpreter Affidavit:

Interpreter:    We collect money from the prayer group and we send money to India, who are poor. There are a lot of poor people.

…

Interpreter:    I can get some evidence from the prayer group.

Member:    This is the fourth protection visa application. Unless I think it is particularly important, I may not be prepared to provide further time to lodge further documents.

The Minister submitted that it was apparent, based on that exchange, that the Tribunal understood and considered the appellants’ submissions concerning charity work but found that they were not “particularly important” or persuasive. The Minister further submitted that that was unsurprising as the issue for determination before the Tribunal did not concern charity work but whether or not the appellants would attempt to convert people in India.

63    The Minister further submitted that another difficulty for the appellants is that they are competent in English and that, had there been material errors in the interpretation, one would have expected them to have raised the issue at the time, which in fact they did at certain points during the course of the Tribunal hearing.

Consideration

64    The Court will only grant leave to raise a new ground on appeal not raised before the primary judge if it is expedient in the interests of justice to do so: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46].

65    In SZKCQ Flick J recognised that “the serious consequences that may attend the wrongful refusal of a protection visa”, or as his Honour put it, a consideration of the importance of any litigation to any of the parties, was of central relevance to the question of whether leave should be granted in the circumstances of that case before the Court, and in the case before me. At [10] his Honour then referred to other considerations relevant to the exercise of the discretion as follows:

Other considerations more generally relevant to the exercise of discretion have been identified by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166], 147 FCR 51 at 85 as including:

1)     Do the new legal arguments have a reasonable prospect of success?

2)     Is there an acceptable explanation of why they were not raised below?

3)     How much dislocation to the court and efficient use of judicial sitting time is really involved?

4)     What is at stake in the case for the appellant?

5)     Will the resolution of the issues raised have any importance beyond the case at hand?

6)     Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)     If so, can it be justly and practicably cured?

8)     If not, where, in all the circumstances, do the interests of justice lie?

Conti J agreed with Madgwick J and further observed at [229] that “where the Court is able to perceive an apparency of genuineness in the circumstances of an appellant, the principles cited by the Minister, for which Coulton v Holcombe (1986) 162 CLR1 and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 stand as authority, may be conceivably susceptible to a degree of modification or alleviation”. It has been said that “the practice which has been adopted in migration cases is that leave may be granted if a point has ‘clear merit’ and there is no prejudice to a respondent in permitting the point to be agitated; an adequate explanation for the failure to take the point below is required …”: SZBJW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1356 at [22] per Jacobson J.

66    Having regard to those considerations and the circumstances of this case, I am not satisfied that I should exercise my discretion in favour of the appellants and grant them leave to rely on the new ground on appeal. My reasons follow.

67    First, no acceptable explanation has been given for why the ground was not raised below and for the delay in raising it. The appellants were represented by counsel before the primary judge but despite this did not raise the proposed ground. The appellants’ submission that they did not and could not raise the ground earlier because it relied on factual matters which were not apparent until the exchanges between the appellants and the interpreter at the hearing were translated is rejected. No explanation is given as to why the translation prepared by Mr Philip-Fernandez was not prepared at an earlier time, particularly given that the appellants were represented before the primary judge.

68    In addition to this, the wife said in her protection visa application form dated 28 May 2014 that she could speak, read and write in English. A review of the Tribunal hearing transcript further discloses that the appellants comprehended sufficient English to be able to identify during the course of the Tribunal hearing when, in their opinion, the interpreter incorrectly interpreted what they had said. For example, the following exchange took place at the Tribunal hearing as set out in the transcript annexed to the Interpreter’s Affidavit (as written):

Husband:         We have told before that we go twice a week

Wife:             That is the interpretation is incorrect

Tribunal Member:     You both speak English reasonably well and that's been fairly apparent during the course of the hearing. So if I am getting incorrect information then I would have anticipated that you would have been able to correct that fairly early on

Wife:             Can I speak then

Tribunal Member:     Yes you can speak in English

Wife:     The interpretation was incorrect because he is telling that once in a week we are going to the church, not only church the Roman Catholic is another community. So we are all conducting that. We are part of that community. We are organising Not only members of that community, we are conducting adoration and other prayers, The Marian Japamala Sakhyam we just prayer that time twice in a week but other time we just do work

Tribunal Member:     So your husband works full-time right?

Wife:     Yes he finishes his work 7 to

Tribunal Member:     So he works full-time

Wife:     Yeah. 5 days, rest of the time he is available. The other people are also working so

Tribunal Member:     I understand what you have said. I have no further questions for you. But then we could talk about the India/Nepal friendship Treaty and your capacity to...

Wife:             sorry some of the information

Tribunal Member:     No, no. Your husband and you can both speak English. If I was getting incorrect information I would anticipate that that could have been corrected fairly early on during the course of the hearing. Now I understand that you work in Australia, Is that correct? Sorry just for the record I am referring this to the applicant husband. You work in Australia, you work with English speaking people?

Husband:         Yes

(emphasis added)

69    While their English may not have been sufficiently proficient to enable the husband and wife to participate in the hearing without the assistance of an interpreter, it was sufficient for them to interact with the Tribunal member and to identify potential translation errors. That being so, their English was, in my opinion, sufficient for the husband and wife to be able to consider whether there was error in the translation and to raise the issue at an earlier point in time.

70    While ground five relies upon the identification of factual issues, the appellants have not provided a sufficient explanation for why those factual issues, that is, the interpreter’s errors, were not raised at an earlier point in time.

71    Secondly, and perhaps more critically, proposed ground five does not, in my view, have reasonable prospects of success.

72    In SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 Griffiths J considered whether, among other things, mistranslation prevented the hearing before the Tribunal in that case from being a lawful exercise of the Tribunal’s functions and powers pursuant to s 414 and s 425 of the Act. After referring to the decision of a Full Court of this Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (SZRMQ) (Allsop CJ, Flick and Robertson JJ) concerned with the application of common law procedural fairness requirements to mistranslations at [71], Griffiths J summarised the relevant principles. At [72]-[74] his Honour said:

72    In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this which raises the application of s 425 of the Act is essentially that which was applied in cases such as Perera, SZOYU, Appellant P119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in a s 425 context in the following terms at [29]:

To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry…

73    In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in s 422B(3) that, in applying Div 4, the Tribunal must act a way that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]).

74    Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.

(original emphasis)

73    At [75]-[76] Griffiths J referred to the observations of Allsop CJ in SZRMQ at [17]-[18] and those of Robertson J at [67]-[69] where Robertson J agreed with the observations of Allsop CJ that there is no requirement, at least for the purpose of procedural fairness, to establish a causal connection between a mistranslation and the decision-maker’s ultimate conclusion. At [77] Griffiths J concluded that he agreed with those observations and considered that they applied equally to a complaint of non-compliance with the requirements of s 425 of the Act. At [78]-[81] his Honour completed his analysis:

78    In my opinion, Robertson J provided further useful guidance in SZRMQ. For example, his Honour emphasised the importance of distinguishing between a case where the mistranslation or non-translation is frequent or continuous, as opposed to a case where the errors are intermittent (see SZRMQ at [70]). His Honour also drew attention, correctly in my view, to:

(a)    the importance of keeping separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see SZRMQ at [73]); and

(b)    the distinction to be drawn between a mistranslation and a lack of detail in the relevant question the subject of translation (SZRMQ at [114]).

79    A further relevant principle is that in assessing whether or not one or more mistranslations or non-translations give rise to jurisdictional error, it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected (see generally the observations of Kenny J in Perera at [29]-[31]). It may well be enough that the translation is sufficiently accurate so as to convey the idea or concept being communicated (WACO at [66]).

80    Furthermore, it is necessary to consider not only alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the overall process, but also to have regard to their cumulative effect. As Robertson J said in SZRMQ at [116]:

I turn finally to consider whether, in the aggregate, the mistranslations constituted a denial of procedural fairness. In my view, in the circumstances of this case, they did not. While care must be taken to examine whether errors in translation may have contributed to adverse findings or otherwise have been of significance to the process and thereby to a lack of procedural fairness, in the present appeal the sum of the mistranslations did not rise to that level. The errors of translation were intermittent rather than continuous and did not have a cumulative effect.

81    Finally, as noted above I did not understand the Minister to contest the proposition as stated by Jagot J in SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] that the question whether inadequate interpretation has deprived an applicant of the opportunity given by s 425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”.

74    I turn to consider the impact of the claimed five errors in translation which are the subject of ground five in light of these principles. The appellant’s submissions focused on one specific area where it is alleged that the failure in translation meant that the Tribunal did not consider an aspect of the evidence when making its findings and more generally that, cumulatively, the errors resulted in the hearing being unfair.

75    As to the error in translation which the appellants alleged resulted in the Tribunal not considering their charity work when making its finding at [58] of its decision record, jurisdictional error in relation to the Tribunal’s fact finding will only be established where the error is material to the decision which the Tribunal actually made: see Gill at [65]. The appellants have not demonstrated that the error is material to the Tribunal’s decision. Charity work was raised and discussed at other times during the hearing as is evident from the Interpreter Affidavit and set out at [62] above. As submitted by the Minister, it is apparent from that exchange that the Tribunal understood and considered the applicants’ evidence about charity work but did not consider it to be “particularly important”. That is not surprising given that the issue before the Tribunal was whether the appellants would seek to continue to convert people to Christianity.

76    As to the more general allegation taken cumulatively, the errors in translation did not result in a breach of s 414 and s 425 of the Act or in the hearing being unfair. The transcript annexed to the Interpreter Affidavit is not a complete transcript of the hearing but to the extent it discloses the flow of the hearing, the errors in translation, which have only been identified in the broadest way, were at most intermittent and did not contribute to adverse findings against the appellants. As has been recognised by the authorities, interpretation is not an exact science. The transcript annexed to the Interpreter Affidavit evidences a translation that conveyed the ideas that were put by way of question or response between the Tribunal and the appellants.

77    I should briefly address the balance of the factors relevant to the exercise of the discretion to grant leave to rely on a new ground. First, I accept that much is at stake for the appellants and that to allow them to rely on the new ground would not involve dislocation to the Court. In addition, contrary to the submission made, I do not accept there would be any prejudice to the Minister. The suggestion that he could not meet the evidence in the Interpreter Affidavit, while only faintly made, is difficult to accept in circumstances where the Court was informed that he had received a draft of it some two weeks prior to the hearing and had not sought an adjournment in the interim or at the hearing to test the substance of the proposed new evidence.

78    Taking all of those factors into account it is not, in my opinion, expedient in the interests of justice to grant leave to the appellants to rely on proposed ground five.

conclusion

79    The appeal should be dismissed and the appellants’ ordered to pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    17 May 2018