FEDERAL COURT OF AUSTRALIA

AZZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2037

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Background

1    This is an appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia (the Federal Circuit Court) delivered on 28 March 2019, dismissing an application to review a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision by a delegate of the first respondent not to grant the appellants Protection (Class XA) visas.

2    The first appellant (the appellant) is a citizen of Sri Lanka. He was born on 22 November 1972. He arrived in Australia on 7 September 2008. The second appellant is the appellant’s wife. The third appellant is his daughter. They made a combined application for a Protection (Class XA) visa on 12 May 2014. On 24 July 2014, the fourth appellant (the second daughter) was included in the application.

3    The appellants claimed to fear harm on the basis of the first appellant’s desertion from the Sri Lanka Air Force. The second, third and fourth appellants applied as members of the first appellant’s family unit. The appellant’s claims were set out in his application form. The application was refused on 19 February 2016.

4    The appellants applied to the Tribunal for review of the delegate’s decision on 10 March 2016, and appeared before the Tribunal on 24 February 2017 with the assistance of an interpreter. The Tribunal affirmed the decision under review on the same day.

5    The Tribunal found that the appellant’s evidence was inconsistent with the information he provided previously in his application and to the Department. The Tribunal did not accept that any person would be interested in the appellant on his return to Sri Lanka after so long and was not satisfied that the first appellant would face a real chance of serious harm or real risk of significant harm for that reason.

6    The Tribunal did not accept that people who desert the military in Sri Lanka end up working for criminals or for ministers and did not accept the first appellant’s claim that he would be approached by criminals or political interests because of his history as a deserter or due to his previous weapons training. The Tribunal did not accept that the appellant would be a person of interest to criminal or political interests and found that the appellant did not have a real chance of serious harm or a real risk of significant harm for this reason.

7    The Tribunal found that country information did not support his contention that he could enter and exit Sri Lanka on multiple occasions without coming to the attention of the authorities. The Tribunal found the appellant’s willingness to apply for and use his passport to enter and exit from Sri Lanka on multiple occasions demonstrated that he correctly considered the authorities had no interest in him.

8    The Tribunal found that the significant delay in the appellants lodging their protection visa applications, and the failure of the appellant to mention his fear of harm as to why he did not want to return to Sri Lanka, demonstrated that the first appellant did not have a genuine concern for his wellbeing on return to Sri Lanka.

9    The Tribunal accepted that the appellant had been in the Air Force and that he left the Air Force in late 2001.

10    However, the Tribunal did not accept that he would be imprisoned for leaving the Air Force, nor that the authorities would seek to prosecute him for deserting 16 years earlier.

11    Because the Tribunal was not satisfied that the appellant would face a real chance of serious harm or a real risk of significant harm due to his desertion from the Sri Lankan Air Force in 2001, it affirmed the decision under review.

12    By application filed 9 March 2017, the appellants sought judicial review of the decision of the Tribunal. The appellants were unrepresented and the application relied on 15 separate grounds.

13    The Minister summarised the procedural history before the primary judge as follows.

14    On 22 June 2018, the matter came on for hearing. The first appellant, who appeared on behalf of the appellants, raised a complaint about the standard of interpretation before the Tribunal. The judge ordered that the first respondent provide an audio recording of the Tribunal hearing to the appellant and that the appellant file and serve written submissions. The matter was then adjourned until 24 August 2018.

15    On 19 July 2018, the appellant filed written submissions alleging four interpretation errors.

16    On 24 August 2018, the matter came on again before a judge, who adjourned the matter to allow the first respondent to file further evidence.

17    On 27 September 2018, the first respondent filed a transcript of the hearing before the Tribunal and affidavit evidence of an independent translator concerning the four alleged interpretation errors. I will set out that evidence below.

18    On 28 March 2019, the matter again came on for hearing before the primary judge. The appellant confirmed that he sought only to rely on the four alleged interpretation errors, not the other 15 grounds.

19    His Honour delivered ex tempore reasons dismissing the application. Written reasons were published on 10 April 2019.

The appeal

20    The notice of appeal filed 18 April 2019 in this court relies on five grounds:

1.    The learned federal circuit court judge failed to consider that the applicant did not understand the interpreter at the MRT hearing.

2.    The main thing final day there were few law student and was very busy environment on the court so I really frustrated in front of the judge. And my mind got stucked with all the thing, I forgot what I wanted to say.

3.    Most of the time judge also misunderstood us, because we haven’t get enough time to explain for the interpreter and the judge. Without the lawyer and with a lack of knowledge it is the hardest part to give them proper answer to them.

4.    I am always can not calm down myself with a big stress, without a lawyer, because when the judge or interpreter has done any mistake, unfortunately I failed to argue with that. I have language barriers as well.

5.    My wife also not well, mentally and most of the time physically. So that is the reason, we did not have time to explain everything to the interpreter. Also, we do not know court knowledge.

(Errors in the original)

21    The principles which govern questions of “errors” and the like made by interpreters are summarised by Edelman J in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310 as follows:

50.    In Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, 19 [29], Kenny J said of an earlier version of s 425 that:

Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

51.    That statement has been described as the “seminal” statement in this area and has been applied to s 425 in its current form: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 [29] (Jacobson J).

52.    The legal principles concerning whether defective interpretation has caused a denial of procedural fairness under s 425 are well established. Some of the leading cases other than Perera are as follows: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1; and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. See also the illuminating article by Perry M and Zornada K, “Working with Interpreters: Judicial Perspectives” (2015) 24 JJA 207. The relevant principles are summarised below:

(1)    interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;

(2)    whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;

(3)    in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;

(4)    where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;

(5)    where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;

(6)    where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;

(7)    if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;

(8)    however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.

53.    The last point emphasises the focus on process. As Allsop CJ said in SZRMQ v Minister for Immigration and Border Protection (215 [9]):

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

54.    In some circumstances it might be the case that a process is procedurally unfair even if a conclusion cannot be reached that the irregularity might reasonably have led to an adverse finding. One reason for this is that the reviewing body, and the appellate court, does not have the benefit of all of the advantages of the Tribunal which sees and hears the witnesses and considers that evidence in the context of the whole record, usually with less time constraints. Those disadvantages of the review or appellate court could require a finding of procedural unfairness in some circumstances even if the reviewing or appellate court is unable to conclude that the irregularity might reasonably have led to an adverse finding. It is not necessary to consider that issue further in this case because, as I explain below, I consider that the irregularities in this case, when viewed as a whole, might reasonably have led to an adverse finding.

22    The first ground amounts to a complaint that the primary judge did not accept the appellant’s complaint in relation to the standard of interpretation before the Tribunal.

First alleged interpretation error

23    The first alleged interpretation error relates to the appellant’s response in bold during the following exchange:

[TRIBUNAL]: Have you got – you say there’s people who have gone and joined the underworld thugs despite the fact that the army can’t find them or that they’re working closely with the ministers. Can you find – can you explain to me why these people can’t be found by the army?

THE INTERPRETER: The ministers give security to – to these gangs as well as the underworld .....

[TRIBUNAL]: So have you got country information to support this because I’ve not seen anything of this nature?

THE INTERPRETER: There have been many ministers and there have been others who have been affiliated to the army who have been previously with the forces. So they .....

[TRIBUNAL]: But you’re talking about 30,000 people you say have been hidden by ministers which I say is complete – not – which is not true.

24    The independent translation of the appellant’s response in bold is in the following terms:

Some time ago there was a famous minister called Mervin Silva. He was caught…a famous incident at the National Television Station/Rupavahini. The minister and his disciple was beaten up at the Rupavahini/Television Station. Even this disciple was with the army before. After that, the person for the murder of Bharatha Lakshman Premachandra, was an ex army personnel called Dematagoda Chaminda.

25    The interpreter’s response in the English transcript is partially inaudible (indicated, I am told, by the ellipses), but more importantly, nothing in the Tribunal’s decision turned on this detail. The Tribunal’s concern, as reflected in its questioning and its decision, was with plausibility of the applicant’s claim that 50 per cent (approximately 30,000 of an estimated 60,000) of army deserters worked for the underworld and were hidden from the army by ministers. That detail was not material to any adverse conclusion of the Tribunal.

Second alleged interpretation error

26    The second alleged interpretation error relates to the appellant’s response in bold during the following exchange:

[TRIBUNAL]: I have significant doubts you need protection at all and the only reason you’re making this up is – do – you want to stay because of the finance. You don’t want to go back because you’ve got financial reasons.

THE INTERPRETER: If I was alone then I would have gone back. My father died. In two years he was on a sick bed. I couldn’t go.

[TRIBUNAL]: But you did. You kept on going back to Sri Lanka. You didn’t have a problem going back to Sri Lanka. You had been back to Sri Lanka. From 2002 to 2010 you went back on seven occasions.

THE INTERPRETER: These are two different things. You should understand that if I go on vacation means it’s one way of living and then if I go permanently that’s a different situation.

27    The independent translation of the appellant’s response is in the following terms:

I really can’t leave, that’s the reason for not going. My father passed away after two years of being bed ridden. Even then I couldn’t go to Sri Lanka.

28    There is no substantive difference between the two translations. In any event, whatever slight difference exists cannot possibly be material to any adverse conclusion formed by the Tribunal and is not capable of establishing any jurisdictional error.

Third alleged interpretation error

29    The third alleged interpretation error relates to the appellant’s response in bold during the following exchange:

[TRIBUNAL]: I see. Can you explain to me why you made no mention of the underworld or anything like that? You said – in your application all you said:

The authorities have no control what is happening in the prisons by underworld thugs.

That’s all you said about the underworld in your application. That you would be harmed in the prison. And if I find that you’ve not been going to the prison then I might find that there’s no – there will be no harm to you by underworld thugs in that prison.

THE INTERPRETER: Even outside the prisons these are the problems I mentioned. They happen.

[TRIBUNAL]: So why did you fail to mention in the original application or before the – or the department mentioning about underworld – sorry, deserters from the army and air force and Sri Lankan military being in the underworld or working for the ministers. Why did you fail to mention anything of that to the department?

THE INTERPRETER: I have not written that because I have mentioned that I will basically mention them at the time of the interview.

30    The independent translation of the appellant’s response is in the following terms:

I told this at the interview the other day. I told this and even showed photographs taken from the internet, depicting how I will be treated, meaning the treatment I will receive if jailed. There were some prisoners killed in jail two years ago, and such problems exist. I also said, that even if not incarcerated I cannot stay freely.

31    While there was some detail in the appellant’s response that was not translated about what he had previously submitted to the Department, this omission was not material.

32    The appellant’s response was in the context of the Tribunal questioning him about why he had not raised his claim to fear harm from underworld figures earlier, except in the context of being in prison. The Tribunal clearly, by its questioning, was aware the appellant had claimed to fear harm in prison, and was aware of the photographs and articles from the internet submitted by the applicant at his interview.

33    The detail omitted by the interpreter at the hearing in relation to the appellant’s response was therefore not material to any adverse conclusion of the Tribunal and is not capable of establishing any jurisdictional error.

Fourth alleged interpretation error

34    The fourth alleged interpretation error relates to the appellant’s response in bold during the following exchange near the end of the hearing:

[TRIBUNAL]: I will rephrase – I will say it again. Did you ever – after you left the air force did you ever receive any paperwork? Anything about any charges or any correspondence from the air force about your departure?

THE INTERPRETER: No.

[TRIBUNAL]: Wouldn’t you think that if – there would be some form of formal letter sent to you about you going to leave and not return?

THE INTERPRETER: I haven’t received any letters..... the systems are such - is such a disorganised place. If I don’t get transferred to one – from one section to another it takes sometimes six to 12 months to get our pays organised. So it is such a disorganised place. So I don’t think that they will even notice my absence until maybe over a year. I haven’t received any letters.

[TRIBUNAL]: Okay. It has been well over a year and you’ve not received any letters. Okay. All right. That’s all I have. Thank you for your evidence. As I said, I will make a decision shortly and it will be sent to you at your address.

35    The independent translation of the appellant’s response is in the following terms:

It’s like this, if we are transferred from one camp to another, it takes around 6 to 7 months to make changes to our salary. Such are the prevalent systems. Likewise to receive a letter with regard to my absence; to be notified internally may take close to 1 year, the process takes its course step by step with relevant files moved around. Hence, I did not receive such a letter.

36    There is no material difference in the content of the translations. The appellant’s evidence was that he had not received any letter that the army was disorganised, and it would therefore take a year or more before the army would send him a letter. The Tribunal plainly understood this evidence, given the Member’s subsequent comment and the recitation of this evidence in the Tribunal’s reasons.

37    Accordingly, there is no jurisdictional error demonstrated.

38    The second to fifth grounds allege in substance that the appellants found it difficult to present their case before the primary judge, and did not have enough time to explain everything to the interpreter. The Minister accepts that these grounds should be taken to contend that the appellants were denied procedural fairness before the Federal Circuit Court.

39    I have read the transcript of the hearing before the primary judge. It is exhibit CHW-1 to an affidavit affirmed by Mr van der Westhuizen on 18 November 2019, filed at my request after the hearing.

40    It is readily apparent from the transcript that the appellants were given a reasonable opportunity to make submissions. In particular, the primary judge:

(a)    clarified with the first appellant that he appeared also on behalf of his wife and his children;

(b)    established that the appellants’ case was the case contended for in a written outline of submissions;

(c)    understood the nature of the alleged transcription errors relied upon;

(d)    directed the first appellant’s attention to the Minister’s submission to the contrary, and to the actual passages from the two versions of the transcript;

(e)    gave the first appellant time to have the Minister’s submission translated to him, before asking him to respond to it; and

(f)    gave the first appellant an opportunity to say something in reply to the Minister’s submissions.

41    It is clear from the judgment of the primary judge that his Honour understood the appellants’ arguments in respect of the four alleged interpretation errors, but, correctly, did not accept them. The fact that the appellants were ultimately unsuccessful does not demonstrate any procedural unfairness.

42    The appeal must therefore be dismissed, with costs.

Associate:

Dated:    6 December 2019

SCHEDULE OF PARTIES