FEDERAL COURT OF AUSTRALIA

AWP16 v Minister for Home Affairs [2019] FCA 155

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must 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

FARRELL J

1    This is an appeal from a decision of the Federal Circuit Court of Australia: AWP16 v Minister for Immigration and Border Protection [2018] FCCA 955.

2    The appellant (also referred to as AWP16) arrived on Christmas Island by boat from Sri Lanka on 20 June 2012 as an irregular maritime arrival.

3    AWP16 participated in an arrival entry interview on 25 August 2012. He lodged an application for a Protection (Class XA) visa on 29 October 2012 together with a statutory declaration dated 25 October 2012 in relation to his claims. He attended an interview with a delegate of the Minister for Immigration and Citizenship on 27 February 2013 and the delegate refused to grant him a visa on 10 July 2013.

4    On 17 July 2013, AWP16 applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision. On 16 September 2013, AWP16 provided written submissions to the Tribunal. He attended a hearing with the Tribunal on 25 November 2014. He was invited to attend a resumed hearing on 11 February 2015 but he did not attend. On 18 August 2015, the Tribunal wrote to him through his appointed agent to tell him that the Tribunal member had changed. He attended a further hearing with the Tribunal on 15 September 2015. AWP16’s appointed agent attended the interview with the delegate and each of the hearings with the Tribunal that he attended. On 24 March 2016, the Tribunal affirmed the delegate’s decision.

5    On 19 April 2016, AWP16 applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The primary judge dismissed the application. AWP16 now appeals from that decision.

Federal Circuit Court decision

6    AWP16 appeared in person at the hearing of his application for judicial review of the Tribunal’s decision.

7    The primary judge summarised the claims made by AWP16 at the entry interview, in his statutory declaration and before the delegate at J[4]-[5] and [8].

8    The primary judge summarised the appellant’s claims at the entry interview at J[4] as follows:

The Applicant was a party to an Irregular Maritime Arrival Entry Interview on 25 August 2012 (entry interview) in which he claimed:

a)    to have no guarantee for his life in Sri Lanka, there are so many problems and armed groups kidnap many people in white vans;

b)    he was kidnapped on 4 April 2012 while he was about 100m from his house after having attended a temple. A white van approached and he was dragged into the van by about 5 people and he did not know why he was kidnapped, because “they kidnap everyone”;

c)    he then went to hospital for his injuries and was there for one day; and

d)    in 2011 when he had returned to Sri Lanka after having worked in Dubai from 2002 to July 2008 he and his friend went to a shop to buy things for a temple and the Special Task Force (STF) detained him under suspicion from the morning until the next day and gave him no food or water.

9    The primary judge summarised the claims made by AWP16 in a statutory declaration made on 25 October 2012 at J[5]:

a)    he is an ethnic Tamil and a Hindu, born in the Batticaloa District of Sri Lanka;

b)    he fled Sri Lanka in 2002 “due to the ethnic conflict in Sri Lanka” and travelled to Dubai on a work visa. He returned to Sri Lanka in 2008 as his parents had informed him that the situation in the east of Sri Lanka had improved slightly;

c)    between July 2008 and February 2010 he was constantly harassed, physically assaulted and beaten by the STF of the Sri Lankan Government due to his Tamil ethnicity and perceived links to the Liberation Tigers of Tamil Eelam (LTTE) political group;

d)    during the same period he was returning from a market and was stopped by STF personnel who took him inside their camp and beat him and other Tamil males severely and the STF subsequently handed him over to the police who locked him up inside the Police Station for one night and released him the following day;

e)    as the situation was getting worse in Sri Lanka, in February 2010 he left Sri Lanka and travelled to Dubai again, returning to Sri Lanka on 1 June 2011 because his parents insisted that he get married;

f)    on 1 April 2012 after returning home from the temple he was abducted by unknown persons travelling in a white van who spoke Sinhalese. He was blindfolded, bound and beaten. On 3 April 2012 while recovering from the beating he was threatened by men speaking Tamil who asked him to give them money or they would cause him physical harm. He went into hiding at his sister’s house, and in May 2012 fled Sri Lanka; and

g)    he feared returning to Sri Lanka due to his ethnicity and he would be at risk of being targeted by Tamil paramilitary groups by reason of being a Tamil and because he had fled Sri Lanka illegally and had sought asylum in Australia.

10    The primary judge summarised the delegate’s decision at J[8]-[9] as follows:

8.    In her Decision Record the Delegate summarized the claims made by the Applicant at the interview with her on 27 February 2013 and in particular:

a)    that between July 2008 and February 2010 he had been constantly harassed, physically assaulted and beaten several times by the STF because he was a Tamil male and “they perceived all Tamil males in the north and east” of Sri Lanka “to have links with the LTTE”;

b)    on one occasion during this period he was stopped by the STF personnel who took him to a camp where he and other Tamils were beaten severely, and he was then handed over to the police who held him overnight;

c)    on 1 April 2012 he was returning from a temple when he was abducted by unknown persons in a white van and severely beaten; and

d)    that between July 2008 and February 2010 he was often taken to an army camp and made to work there by, for example, cutting wood.

9.    In the result the Delegate was concerned with significant discrepancies in the versions of events which the Applicant had given at the entry interview and at the interview with her. In particular the Delegate did not accept that the Applicant had been abducted and then extorted to pay money in April 2012 and she was not satisfied that Australia had protection obligations under either the Refugees Convention criterion or the complementary protection criterion and she refused to grant a Protection visa to the Applicant.

11    The primary judge summarised the Tribunal’s findings in its decision record (or DR) at J[12]-[17]:

12.    In the result the Tribunal did not find the Applicant to be a credible and truthful witness because, in particular, it found that there were numerous inconsistencies in the versions of events given by the Applicant leading up to and at the hearing before the Tribunal. At [30] – [36] of its Decision Record the Tribunal recorded its analysis of what it considered to be inconsistencies arising from:

a)    the Applicant’s evidence in the entry interview;

b)    the Statutory Declaration;

c)    the Applicant’s evidence in the interview with the Delegate;

d)    the Applicant’s evidence at the hearing before the Tribunal;

e)    the Applicant’s introduction at the hearing before the Tribunal of new significant claims in relation to the kidnapping in early April 2012 on his way home from the temple and the vague, muddled and unconvincing evidence that he gave at the Tribunal hearing in relation to this particular claim; and

f)    changes in the Applicant’s evidence at the Tribunal hearing when questioned about various aspects of his evidence.

13.    In light of these inconsistencies the Tribunal at [38] did not accept that the Applicant had been arrested, detained or mistreated by the STF or that he had been detained, questioned or mistreated by the police.

14.    At [39] the Tribunal found that it was not satisfied that the Applicant had a profile that would subject him to a real chance of serious harm for the reason of his actual or imputed political opinion.

15.    At [41] it rejected the Applicant’s claim to fear persecution on the basis of his ethnicity as a Tamil.

16.    At [47] the Tribunal recorded that it was not satisfied that there was a real chance that the Applicant would be persecuted because he was a failed Tamil asylum seeker, a Tamil who had left Sri Lanka illegally or a person who had applied for asylum in Australia.

17.    From [42] to [53] of its Decision record the Tribunal recorded its consideration of country information and then at [55] found that, on the basis of all the evidence before it considered individually and cumulatively, it was not satisfied that the Applicant would face serious harm amounting to persecution for Refugee Convention reasons if he were to return to Sri Lanka on the basis of his Tamil ethnicity, his actual or imputed political opinion or his membership of a particular social group.

18.    With respect to the complementary protection criterion, the Tribunal at [56] of its Decision Record did not accept that any group in Sri Lanka would have any adverse interest in the Applicant and at [62] – [63] the Tribunal concluded that the Applicant did not meet the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.

Grounds of review

12    The grounds of AWP16’s application to the Federal Circuit Court for judicial review were (as written):

1.    The Tribunal made a jurisdictional error in that it failed to discern a Convention reason.

Particulars.

The Applicant claimed he was suspected of links with the LTTE but based on the facts the AAT failed to make a finding.

2.    The Tribunal is in breach of Natural Justice.

Particulars.

The Applicant’s claims were rejected but the tribunal was in breach of s.424 in that it did not put adverse information to the applicant.

First ground

13    The primary judge found that there was no arguable basis for the first ground and it failed to establish jurisdictional error. His Honour found that the Tribunal clearly considered AWP16’s claims in relation to the Liberation Tigers of Tamil Eelam (LTTE) and made a finding that it was not satisfied that any association or suspicion of association with the LTTE would mean that he faced a real chance of being persecuted or a real risk of being significantly harmed: see J[20]-[26].

14    The primary judge noted (at J[22]) that the Tribunal expressly recorded AWP16’s claims in the decision record at DR[3]-[7] and [20], including a claim that he was linked with, associated with or suspected of association with the LTTE and that at DR[39] the Tribunal stated that (emphasis in primary judgment):

The Tribunal is not satisfied that the applicant has a profile that would subject him to a real chance of serious harm for the reason of his actual or imputed political opinion. The Tribunal is not satisfied that the applicant will be imputed to be an LTTE member or supporter. The Tribunal is not satisfied that he will be perceived to be a collaborator, to hold anti-government views or to hold pro-LTTE links of a nature that would put him at a risk of serious harm. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed by the Sri Lankan authorities, paramilitary groups or anyone else for the reason of his actual or imputed political opinion or membership of any particular social group, including young Tamil males from Sri Lanka if he were to return to Sri Lanka.

15    The primary judge then noted (at J[23]) that at DR[42] and [53], the Tribunal considered the issue of association with the LTTE based on AWP16 having departed from Sri Lanka illegally and being perceived as a failed asylum seeker. In this connection, his Honour noted that at DR[47] the Tribunal stated (emphasis in primary judgment):

The Tribunal put the country information before it to the applicant at the hearing. He responded by stating that being a Tamil is like a curse. There are problems and discrimination everywhere. He stated that there are random shootings and Tamils are exposed to dangerous situations. On the basis of the evidence before it, however, the Tribunal is not satisfied that the combination of the applicant's ethnicity and his living overseas would specifically impute him with having links to the LTTE or expose him to a greater level of interest by the Sri Lankan authorities. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of any pro-LTTE or anti-government political opinion that may be imputed to him because he has lived in Australia or because he has sought asylum in Australia.

16    The primary judge noted (at J[24]) that in relation to complementary protection, the Tribunal stated at DR[56] that (emphasis in primary judgment):

For the reasons already provided, the Tribunal does not accept that the SLA, the CID or paramilitary groups have any adverse interest in the applicant. The Tribunal is not satisfied that the applicant has a profile that would subject him to a real risk of significant harm arising from his actual or imputed pro-LTTE political opinion. The Tribunal is not satisfied that the applicant will be imputed to be an LTTE member. The Tribunal is not satisfied that the applicant has a profile that would subject him to a real risk of significant harm arising from his actual or imputed political opinion.

Second ground

17    The primary judge took the reference to s 424 in the second ground to be a reference to s 424A of the Migration Act 1958 (Cth). His Honour identified the “first problem” with this ground as being its failure to identify the “information” of which “clear particulars” were not given to AWP16 and found that that would, in itself, lead to rejection of the ground. The primary judge stated that, in favour of AWP16, he had considered the decision record but found that on any basis, the ground must fail.

18    The primary judge noted that the chief basis for the Tribunal’s rejection of AWP16’s claims was its view that there are inconsistencies in the various versions of events which he gave, including the version given to the Tribunal. The primary judge found that “information” constituting those various versions was not “information” for the purposes of s 424A. His Honour relied on SZTNL v Minister for Immigration and Border Protection (2015) 31 FCR 204; [2015] FCA 463 at [53] per Griffiths J, citing SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

19    Further, the primary judge could not discern from the decision record that the Tribunal took into account any new “information” which had not otherwise been excluded from the operation of s 424A by reason that it is country information (excluded by s 424A(3)(a)), information in the delegate’s reasons which AWP16 “gave” to the Tribunal when he filed them with his application to the Tribunal (excluded by s 424A(3)(b), see Minister for Immigration v Chamnam You [2008] FCA 241 per Sunberg J); information which AWP16 gave to the Tribunal at the hearing in response to questioning (excluded by s 424A(3)(b), see NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195 at [57]-[59] per Young J with whom Gyles and Stone JJ agreed); and information given in AWP16’s visa application which was not oral “information” (excluded by s 424A(3)(ba), see SZNQR v Minister for Immigration and Citizenship [2010] FCA 152 at [34] per Rares J and MZYER v Minister for Immigration and Citizenship (2010) 115 ALD 382 at [50]-[53] per Dodds-Streeton J).

A final matter

20    At the hearing, AWP16 claimed that the interpreter at the Tribunal was not from Sri Lanka and he believed that some of his evidence had not been conveyed accurately at the Tribunal hearing. The primary judge observed that this complaint was new and formed no part of AWP16’s grounds as pleaded. The primary judge relied on the principles applicable where there is an allegation of inadequate interpretation as summarised by North J in SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260; [2010] FCA 1280 at [27] as follows:

It is established that an appellant who alleges that there was inadequate interpretation amounting to a breach of the obligation contained in s 425(1) of the Act must show that:

(a)    The standard of interpretation at the Tribunal hearing was so inadequate that he or she was, effectively, prevented from giving evidence at the Tribunal; or

(b)    Errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.

Questions of fact and degree are involved, and a qualitative assessment must be made of the conduct of the Tribunal hearing as a whole: Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] and [22]; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723; and M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212. The judgment in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 is often cited as one of the foundation authorities on the question of the adequacy of interpretation. That judgment should now be read in view of the recent academic criticism in A Hayes and S Hale, “Appeals on Incompetent Interpreting” (2010) 20 Journal of Judicial Administration 119, at 127.

21    However, as noted by the primary judge, AWP16 had not tendered a transcript of the Tribunal hearing, notwithstanding that consent orders made on 20 May 2016 specifically provided that any evidence of a Tribunal hearing must be presented as a transcript verified by affidavit. The primary judge stated that, on that occasion, his Honour had specifically advised AWP16 that he might need to obtain a transcript of the Tribunal hearing. Further, AWP16 had not led any evidence from any witness or source which would enable the Court to consider the standard of interpretation at the Tribunal hearing on 15 September 2015. Accordingly, the Court had no evidence before it which could lead to a finding that the Tribunal hearing was affected by any inadequate interpretation.

22    On the basis that AWP16 had failed to establish any jurisdictional error, the primary judge dismissed the application.

Appeal

23    AWP16’s grounds of appeal are (as written):

1.    The Federal Circuit Court failed to find in respect of the AAT (Respondent) that the Respondent declined its jurisdiction to the applicant on the basis of grounds including the main grounds stated in the Federal Circuit Court Applicant.

A.    The Tribunal made a jurisdictional error in that it failed to take into consideration relevant materials when determining the applicant’s claim.

B.    The Tribunal is in breach of Natural Justice.

24    AWP16 appeared in person at the hearing of the appeal and he did not file written submissions. The Court was assisted by an interpreter. The Minister was represented by counsel at the hearing and written submissions were filed on 2 November 2018.

Adjournment Application

25    On 5 November 2018, AWP16 sent an email to the National Operations Manager of the Court. He sought an adjournment of the hearing of the appeal which had been listed for 9 November 2018 “to a suitable date” on the basis that he had requested a copy of the audio recording of “the tribunal hearing” from the Minister’s solicitors and it was sent to him on 29 October 2018. He said that he was “self-represented and unemployed” and that he believes that “the transcript of the Tribunal hearing is essential for my appeal on a fair and just basis”. He said that he requires adequate time to organise and get the transcript prepared.

26    The Court advised by reply email to the parties that the question of whether an adjournment would be granted would be addressed at the hearing on 9 November 2018 and that if an adjournment is not allowed, the Court would hear the appeal at that time.

27    At the hearing on 9 November 2018, AWP16 requested an adjournment of one month. He sought time to arrange a certified translation of the Tribunal transcript into English by an authorised translator. He had identified an appropriate translator who was willing to complete the job in a month and he had the funds to pay for the translation. If necessary, he could provide this to a lawyer to obtain legal advice.

28    AWP16 requested copies of audio recordings of his “first interview”. At the hearing it appeared that this meant the first of the three Tribunal hearings (the second of which the appellant did not attend) and the Court indicated that it was prepared to grant leave to the appellant to file translations of the Tribunal hearings and any evidence in relation to inconsistencies on which the appellant sought to rely. AWP16 asserted that he had been assigned an Indian interpreter for the “first interview” rather than a Tamil interpreter. He said that the difference in dialect and accent meant that dates, months and his other statements had been misinterpreted.

29    The Minister initially opposed an adjournment. His counsel noted that his instructing solicitors had provided the appellant with copies of the sound recording of the three Tribunal hearings within a day of receiving a request from the appellant. Counsel submitted that it is not obvious that the recordings are relevant to any of the grounds of appeal or a matter which AWP16 would seek leave to raise for the first time on appeal. Even if the recording is relevant to a new ground, counsel submitted that the ground should have been raised at first instance and that the hearing of this matter has been set down for some time and any such issue should have been raised before this time. Finally, counsel submitted that the Minister was prejudiced because he had incurred the costs of counsel appearing today which would be thrown away if the adjournment was granted.

30    The Court formed the view that it was in the interests of justice that the appellant should have an opportunity to adduce evidence of the asserted errors, in light of the fact that he had raised the issue of interpretation in relation to the final Tribunal hearing on 15 September 2015 before the primary judge and the fact that there had been a change of Tribunal member between the first Tribunal hearing on 25 November 2014 and the other Tribunal hearing attended by the appellant on 15 September 2015. However, the hearing of the appeal should otherwise proceed. If the appellant filed material in relation to the interpretation issue by 10 December 2018, a case management hearing would be held on 12 December 2018 to determine how the matter would proceed, but if no material was provided, the Court would give judgment on the basis of the evidence and submissions relied on at the hearing on 9 November 2018. Counsel for the Minister did not seek to be heard against adopting that course.

31    Although the Court explained to the appellant the different functions of the Tribunal, the Federal Circuit Court and this Court on appeal, and in particular that it was not for this Court to decide the merit of his visa application, the appellant submitted that his brother-in-law had been abducted “last month”, his father had been assaulted and authorities in his country were looking for him so that he had no security in Sri Lanka. The Court took the appellant to the grounds of his appeal and asked him to explain what he meant by them. The appellant indicated that he did not complain about the primary judge’s findings in relation to his grounds of review. His complaint concerned the interpretation in the “first interview” which had caused him great injustice.

32    Counsel for the Minister relied on the written submissions that had been filed.

33    When draft orders were provided to the parties for comment following the hearing, the appellant clarified that by the “first interview”, he did not mean the first of the three interviews with the Tribunal (that is, he already had a copy of the sound recording of that interview), but rather he wanted the sound recording of the interview conducted by a delegate of the Minister on 27 February 2013 (PV interview). The Minister indicated that arrangements would be made to provide the appellant with a copy of the PV interview.

34    In orders made on 15 November 2018, the Court granted leave for the appellant to file and serve any evidence of the Tribunal hearings and delegate interview presented as transcripts from the audio recordings verified by affidavit on or before 10 December 2018. The Court ordered any translation must be performed by an interpreter accredited in both English and Tamil by the National Accreditation Authority for Translators and Interpreters (NAATI) and the matter was listed for case management at 9:30 am on Wednesday, 12 December 2018.

Case management hearing

35    On 10 December 2018, AWP16 filed an affidavit, affirmed by him, which annexed a transcription of the PV interview held on 27 February 2013. The transcript was prepared by a NAATI accredited translator in the English and Tamil languages. The transcript records statements said by the delegate, interpreter and AWP16 in English and Tamil. On 11 December 2018, AWP16 filed a schedule which identified “errors and misunderstandings” in interpretation which were said to have occurred at the PV interview, and that schedule was marked as exhibit 1.

36    At the case management hearing on 12 December 2018, AWP16 confirmed that he did not intend to rely on transcript in relation to any of the proceedings of the Tribunal. When he was asked what point he wished to make based on the materials he had filed, AWP16 said that the identified errors in interpretation at the PV interview had affected his life badly, which I take to be a complaint that the errors deprived him of a positive outcome. AWP16 confirmed that he had spoken to a lawyer about his matter but did not intend to be represented in the proceedings. He said that he was upset and depressed.

37    Counsel for the Minister submitted leave should not be granted for AWP16 to raise a new ground of appeal based on the evidence of what transpired at the PV interview. Counsel submitted that this matter had not been raised before the primary judge and it should have been raised there in the first instance. Further, it is not clear how any errors in translation before the delegate would manifest as a jurisdictional error of the Tribunal having regard to the fact the Tribunal conducts its own review including its own hearings. Although it may be possible that an error by the delegate could taint the Tribunal’s decision such that the Tribunal’s decision was beyond jurisdiction, it is not apparent that that has occurred in the present case.

38    Counsel submitted that the translation errors identified in the schedule were not material and are instead variations in translation resulting from judgment or taste. In BZAID v Minister for Immigration (2016) 242 FCR 310; [2016] FCA 508 at [52], Edelman J (then a judge of this Court) makes clear that interpretation is an expert exercise involving judgment and that it is not necessary nor possible to achieve perfection. The schedule does not demonstrate a great frequency of claimed errors or that any errors that were made were significant or material, and there is nothing to suggest that the Tribunal’s factual findings, for example, relied upon any matter in the schedule.

39    Counsel submitted that the orders made on 15 November 2018 put the appellant on notice that the purpose of the case management hearing was to hear submissions as to whether the appellant may be entitled to raise these grounds and determine that issue. The Court should not grant leave for the issue to be raised because the material filed by the appellant does not demonstrate sufficient deficiency in the interpretation to give rise to an arguable point and the Court should reserve and proceed to give judgment. If the matter were to proceed further, the Minister would be prejudiced on the issue of costs.

40    When AWP16 was asked again to tell the Court how any mistranslation by the interpreter in the PV interview affected the Tribunal’s decision, the appellant said that at a Tribunal hearing he raised his claim that a number of mistakes had taken place at the PV interview but the Tribunal member did not pay attention. He submitted that “the dates are wrong”. He said that in his country, if you pay money to the police department, or the CID (Criminal Investigation Department of Sri Lanka) or other authorities, you can get a certificate in favour of you but he had not obtained any forged documents. He submitted that he had been a witness to many incidents and had a lot of information but that had not been properly interpreted.

Should leave be granted?

41    There is no transcript of the proceedings in the Federal Circuit Court in evidence. The primary judge’s reasons indicate that the appellant claimed that there were interpretation issues at one of the Tribunal hearings, not the PV interview. In those circumstances, by seeking to rely on alleged errors in translation during the PV interview, the appellant is seeking to raise a new ground and rely on new evidence, albeit that he now says that the relevance is that he tried to raise the issue of inadequate interpretation in the PV interview at a Tribunal hearing. The appellant elected not to have translated relevant parts of the sound recordings of the Tribunal hearings which were sent to him by the Minister’s solicitors.

42    In general, a party is bound by the way they have run their case in the Court below, unless justice demands otherwise, and it is common that more latitude is given to litigants who are not represented by a lawyer in allowing them to raise a new ground in recognition of the difficulties they face and (in migration cases) the serious consequences which flow from a decision adverse to their interests: see Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 at [89]-[90] and the cases there cited. Leave is also required to rely on new evidence in an appeal and the factors to be taken into account were summarised by Rangiah J in Anne v Ask Funding Ltd (2015) 240 FCR 229; [2015] FCA 1111 at [63].

43    In relation to the PV interview, I accept the Minister’s submission that it would be necessary to show that the errors in translation so affected the Tribunal’s consideration of AWP16’s protection claims that its jurisdiction miscarried. It is notable that the Tribunal found that the appellant was not a credible or truthful witness on the basis of “numerous inconsistencies” in his evidence (at DR[29], [36] and [38]).

44    I accept the Minister’s submissions that the differences in translation identified in the schedule were primarily directed to matters of judgment or taste. I am satisfied that, notwithstanding the difference in the translations identified in the schedule, the sense of AWP16’s evidence was conveyed and that the meaning of the words was comprehensible, despite differences of syntax and phrasing.

45    In relation to the types of mistranslations asserted by AWP16 at the hearings on 9 November and 12 December 2018, the schedule refers to only one date error – and that was an error made on the day of the PV interview in relation to the date of the PV interview itself. There is no evidence of a mistranslation of any other date mentioned by AWP16 in the course of the PV interview. AWP16 does not say how his account of incidents he had witnessed was improperly interpreted, and the differences in the translations set out in the schedule do not reveal any material difference in the account. There is no mention of forged documents in the Tribunal’s reasons or in the schedule. There is no mention in the Tribunal’s decision record of any complaint by AWP16 of mistranslation errors during the PV interview. Further, when inconsistencies in his evidence and the introduction of new claims at the Tribunal hearings was put to AWP16 pursuant to s 424AA of the Migration Act, he responded that he was in a distressed state and was not sure what he had said (at DR[32]). On my reading, none of the matters raised in the schedule is evidence of a material mistranslation during the PV interview on the basis of which the Tribunal might have been misled about the appellant’s claims or misconstrued the claims made at the PV interview. The delegate’s decision record is consistent with the preferred translations in the schedule. There is therefore no basis for a finding that the Tribunal’s jurisdiction miscarried because it was misled as to the evidence given by AWP16 at the PV interview due to errors in translation.

46    In relation to the Tribunal hearings, the appellant did not arrange for translation of the hearings conducted on 25 November 2014 and 15 September 2015, the two hearings attended by him. The appellant’s claim that he raised the issue of mistranslation in the PV interview at the Tribunal hearings cannot be substantiated in the absence of any mention of that claim in the Tribunal’s reasons. For completeness, I note that the Appeal Book contains records of who attended each of the Tribunal hearings and, for the hearings attended by the appellant, the record indicates that the interpreter present was accredited as a NAATI level 2 or 3 interpreter in the language/dialect described as “Tamil (Sri Lankan)”.

47    I am not satisfied that there is sufficient merit in the appellant’s claims concerning interpretation errors in the PV interview or any Tribunal hearing to grant leave to rely on a new ground or to admit new evidence.

Grounds in the notice of appeal

48    At the hearing on 9 November 2018, the appellant appeared to abandon the grounds pleaded in the notice of appeal. As AWP16 was not legally represented, I will nonetheless briefly address those grounds.

49    The pleaded ground appears to contain a general claim of error by the primary judge in not finding that the appellant had made out the grounds of review followed by paragraphs designated “A” and “B”, which I take to be particulars of the general claim.

50    It is difficult to see how particular A – a failure to have regard to “relevant materials” – relates to the grounds pleaded in the Federal Circuit Court. No “relevant materials” are identified. I perceive no appealable error in the primary judge’s reason for rejecting the first ground of review for the reasons that his Honour gave as summarised above.

51    In relation to particular B of the ground of appeal and the second ground of review in the Federal Circuit Court, the appellant provided no particulars of the claimed failure of natural justice. The primary judge appears to have given the appellant the benefit of the doubt by considering whether the ground related to a possible breach of s 424A of the Migration Act by reason of the Tribunal failing to put “adverse information” to the appellant. I perceive no appealable error in the primary judge’s approach or findings. Further, the Tribunal gave the appellant the opportunity to comment during the hearing in relation to inconsistencies in the evidence he had given, purportedly under s 424AA, albeit that the Tribunal’s disbelief of a claimant’s account, and its subjective appraisals, thought processes or determinations do not fall within the term “information”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18].

52    The pleaded grounds could not be made out on the information available to this Court.

Conclusion

53    The appeal must be dismissed as each of the grounds fail and the appellant has not been granted leave to rely on further grounds relating to errors in interpretation. I will order that the appellant pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    21 February 2019