AIN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appellant's interlocutory application, dated 13 July of 2022, be dismissed.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs of the appeal, including the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 On 9 January 2019 the second respondent ("the Tribunal") affirmed a decision of a delegate of the first respondent ("the Minister") made on 9 October 2015 not to grant the appellant a protection visa. On 30 January 2019 the appellant commenced a proceeding in the Federal Circuit Court of Australia for review of the Tribunal's decision. On 3 September 2019 the appellant's application for review was dismissed with costs. The judge who heard and determined the proceeding delivered oral reasons. He also ordered that "the transcript of the published oral reasons may be released forthwith to any party if so requested without further settling of the published oral reasons". The reasons included in the appeal book appear to have been made available to the parties in accordance with that order. The record of the reasons for judgment does not appear to have been either corrected or certified by his Honour. However, no party raised any issue as to the correctness of the transcript of his Honour's reasons, and the appeal has been conducted on the basis that the draft reasons for judgment in the appeal book are an accurate record of the reasons for judgment delivered by his Honour orally at the time of making his orders. 2 I note that the appellant was not represented at the hearing before the Tribunal, nor at the hearing before the primary judge. However, he was represented before me by his solicitor who prepared written submissions filed on 23 June 2022. Subsequently, the appellant also filed an interlocutory application seeking leave to rely on evidence that was not before the primary judge. The affidavits read in support of that interlocutory application were made by the appellant on 18 September 2019, 17 June 2022 and 13 July 2022. 3 It is apparent that, in making his interlocutory application, the appellant did not comply with r 36.57 of the Federal Court Rules 2011 (Cth). However, the interlocutory application was received, the affidavits filed in support of it were read without objection, and the application was heard concurrently with the appeal. I will say more concerning the interlocutory application later in these reasons. 4 The appellant is a citizen of India who applied for a protection visa under s 36 of the Migration Act 1958 (Cth) on 2 December 2014. The delegate's decision was the subject of an application for review by the Tribunal filed by the appellant on 4 November 2015. The appellant appeared before the Tribunal on 27 July 2018 to give evidence and to present arguments in support of his application. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. 5 In his application for a protection visa the appellant stated that he was born in Jammu, that he belongs to the ethnic group Jatt Sardar, and that he is of the Hindu religion. In his application he indicated that he left his country illegally on 14 November 2013 and arrived in Australia as a visitor shortly thereafter. He stated that he lived in Jammu from 1989 until 2011 and that he then lived in Calcutta from 2011 until 2013. He further indicated that his father lived in Italy and that his mother, younger brother and sister were living in India. He stated that he was still in contact with both his mother and his father. 6 In his protection visa application, the appellant further stated that he left India in 2013 because he lives in a border area where there is a terrorist problem. The appellant also stated that he feared that, if he were to return to India, he would be killed by terrorists or forced to join them and, in the event that he did join them, he would be killed by the Indian army. He claimed that the terrorists had hit him and forcibly tried to take him, and that even when he had moved to Calcutta they had threatened him on the phone, telling him that they would kill him if he returned to the village. He further claimed that terrorists freely move around the State, taking money and looting and killing people. He claimed that many of his friends had been killed. He also claimed that neither the police nor the army could provide necessary security. 7 Before the Tribunal, the appellant provided further background in relation to various threats that he claimed had been made against him. The claim before the Tribunal was that he was taken from the family home by the terrorists and taken to a warehouse and beaten because he would not join them. Before the Tribunal, the appellant claimed that he left Jammu in 2007 or 2008 because the terrorists were "after him" but returned when his mother told him that the situation had settled and the terrorists were no longer enquiring after him. He claimed that when he left the area the terrorists threatened his father and brother and terrorists had slapped his mother when they came to the house and she told them that the appellant was in Calcutta. The appellant stated that the army still asks his mother where he is and they tell her that if they have suspicions about anyone they take them away for investigation. 8 The Tribunal found the appellant entered Australia in November 2013 using a passport in a name that was not his real name. The Tribunal found the appellant clearly knew that he was travelling on a passport in another person's name when he entered Australia. 9 The Tribunal accepted that apart from a period in 2007 or 2008 when he left the village the appellant lived with his family in the family home in Jammu until 2011, when he went to stay and work in Delhi. He later went to stay and work in Calcutta prior to travelling to Australia in 2013. 10 The Tribunal accepted that "there is a chance/risk of harm from terrorists to those living in the region of Jammu/Kashmir". However, the Tribunal found that this was a risk faced by the population generally in that area. Further, the Tribunal did not accept that the appellant left and cannot return to India because he, or any of his family members or friends, were targeted for harm including by terrorists as he claimed. 11 The Tribunal found that the appellant had not given credible evidence about what happened to him in India to cause him to leave there and to travel to Australia. It did not accept that he had been threatened, beaten or otherwise ill-treated by terrorists or that he moved to either Delhi or Calcutta to avoid harm from terrorists. The Tribunal found that the appellant's claims were invented by him "to give him a better chance to get a visa to remain in Australia". 12 The Tribunal's reasons referred to aspects of the appellant's evidence which it described as confusing and at times conflicting. Amongst other things, the Tribunal referred to evidence given by the appellant that one of his friends was shot by terrorists, in what the appellant's evidence suggested was a serious incident, but one not mentioned in his application for a protection visa. The Tribunal also drew attention to the appellant's evidence concerning his time in Delhi and his claim that the terrorists found him there. That claim, which the Tribunal clearly regarded as fabricated, was not one mentioned in the appellant's application for a protection visa. The Tribunal considered that if the claim was true, the appellant would have mentioned it in his application for a protection visa. The Tribunal also rejected the appellant's claims that the army was searching for him, and that they had made inquiries of the appellant's mother in relation to him. 13 The Tribunal also drew attention in its reasons to the appellant's delay in applying for a protection visa. It noted in its reasons that he arrived in Australia in November 2013 but did not apply for a protection visa until December 2014. It appears that the appellant told the Tribunal that he knew he was without a visa when he applied for the protection visa. When asked why he did not make an application for protection sooner than he did, he stated that he was not aware that there was such a thing as a protection visa until he was advised about this by people at his Temple. Additionally, when asked why he did not take steps to regularise his visa status, he stated that he was not aware of "anything" and that someone had to guide him. It is clear that the Tribunal did not accept the appellant's explanation for his delay in applying for a protection visa in circumstances where he had entered Australia under what he acknowledged to be a false passport. 14 The application for judicial review filed by the appellant stated that the Tribunal misunderstood the appellant's claims and failed to recognise the threats to his life. It also alleged that the Tribunal's decision was "not reasonable" and that the Tribunal did not have a full understanding of the situation the appellant faced. 15 Importantly, the application also stated: I was under too much pressure as the interpreter was from Pakistan and as for living in border of India and Pakistan there are too much tensions in our country. (Errors in the original) 16 His Honour considered that the findings made by the Tribunal effectively rejecting all of the appellant's claims that were relied upon in support of his application for a protection visa were open to the Tribunal for the reasons it gave. 17 Since the focus of the submissions made on behalf of the appellant in this Court, and the focus of the further evidence that he now seeks to adduce, concerns the issue raised in relation to the Pakistani interpreter, it is useful if I set out the primary judge's reasons in relation to the topic. It is apparent there was no evidence called by the appellant in support of this aspect of his case before the primary judge, but the appellant was given an opportunity and did explain the problems he claims to have experienced to the primary judge from the bar table. His Honour said, at [19] to [23] of his reasons: 19. From the bar table, the applicant raised a proposition that he had a proposition [sic] with his interpreter from Pakistan and that he could not understand the interpreter and that the tribunal could not understand him. The court asked the applicant why he had not put on any evidence to identify the alleged problems with the interpreter and the applicant did not provide any satisfactory explanation. The court asked the applicant to identify any particular matter that the tribunal or the applicant did not understand because of the interpreter. The applicant did not identify any such matter, but rather complained that he was asked too many questions about where he lived and that he did not know how to prepare properly. 20. The court also asked the applicant why he did not raise a problem with the interpreter with the tribunal, and the applicant asserted that he was too scared. There is no evidence to support the applicant's assertions that there was any material problem with the standard of interpretation at the hearing before the tribunal. 21. The tribunal's reasons are consistent with the applicant having a real and meaningful hearing in which the tribunal explored with the applicant the issues in respect of the applicant's claims. There is nothing on the face of the material before the court to suggest that the applicant, in fact, had any difficulty understanding the interpreter, or that the tribunal had any difficulty understanding the evidence of the applicant. 22. The applicant has not pointed to any particular matter that the tribunal misunderstood. The court does not accept that there was any material problem with the interpreter. The applicant alleged that he spoke a particular dialect …… [sic] was uncomfortable because the interpreter was from Pakistan. There is no evidence to support any finding that there was any material difficulty with the applicant understanding the interpreter or with the tribunal understanding the applicant's claims from evidence. 23. The applicant's assertion that the interpreter was from Pakistan does not identify a proper basis upon which the court is satisfied that the applicant had other than a real and meaningful hearing before the tribunal. There is no evidence to suggest the applicant's capacity to give evidence through the Hindi interpreter from Pakistan pursuant to section 425 of the Act, was adversely affected. Accordingly, nothing said by the applicant in relation to the Pakistani interpreter gives rise to any jurisdictional error, nor is there any substance in the submission by the applicant that the tribunal did not understand his claims. No particular claim has been identified that the tribunal failed to understand. 18 What is apparent from his Honour's reasons is that the appellant, when explaining the issue he had with the interpreter, did not identify any specific matter with respect to his situation in India or his reasons for leaving that country which could not be communicated to the Tribunal because of any problem he may have had with the interpreter. To take an example, nothing was said to his Honour, based on my reading of his reasons, which provided further detail in relation to the appellant's account of his alleged interactions with terrorists or his failure to apply for a protection visa sooner than he did beyond what was conveyed to the Tribunal through the interpreter. 19 The appellant's exchanges with the primary judge appear to have occurred at a very high level of generality. That is significant because when one considers the further evidence that the appellant seeks to rely on in this Court (where the appellant is now legally represented), it also suffers from the same difficulty. There is no specific evidence sought to be adduced by the appellant which addresses any of the various matters that the Tribunal addressed when concluding that the appellant was not a credible witness. His Honour also found that the Tribunal gave reasons which his Honour characterised as logical and rational in support of the adverse findings made, none of which could be said to lack any evident or intelligible justification. On appeal, there was no meaningful challenge to that finding and no argument developed in the appellant's submission which sought to impugn that finding. 20 As is apparent in the paragraphs in the primary judge's reasons set out above, his Honour expressly considered the appellant's contention that he was under too much pressure because the interpreter was from Pakistan. The primary judge noted there was no evidence to suggest that the appellant's capacity to give evidence through the Hindi interpreter was adversely affected. It is also apparent that his Honour took into account, as is clear from his reasons, what he was told by the appellant from the bar table. According to the primary judge, the material before the Court indicated that the appellant had a real and meaningful hearing before the Tribunal and that its reasons were consistent with him having had a real and meaningful opportunity to engage with the Tribunal's concerns in respect of the appellant's claims and that no jurisdictional error was established. The primary judge also rejected the appellant's contention that the Tribunal misunderstood his claims and that its decision was legally unreasonable. The appellant's submissions in this Court focused on the issue of the interpreter. 21 Most of the evidence contained in the affidavits read in support of the interlocutory application is directed to explaining why the appellant did not adduce the further evidence on which he now seeks to rely. In short, those aspects of his affidavit refer to the fact that he was not legally represented, and what he says is his extremely limited knowledge of Australia's legal system. In particular, he says that he was unaware that he bore the burden of proof to show the Court his "… miserable past and the material facts about the situation in Jammu and Kashmir and other parts of Indian subcontinent [sic]" which he considered to be "common knowledge". 22 In his affidavit of 17 June 2022, the appellant refers to, amongst other things, his fear of Pakistani terrorists and what he says amounts to a "fear psychosis for them". In the affidavit, he claims that he was "gripped with fear" and could not express the circumstances of his situation in India clearly to the Tribunal member. However, none of the affidavit evidence relied on elaborates in any detail upon the particular matters which the appellant suggests he was unable to express or more fully communicate. 23 In relation to the appellant's problem with the interpreter, the appellant said in his affidavit of 13 July 2022 at para 9: I did attempt to raise a few points about the situation in Jawmu and Kashmir and other material facts that may assist my case, but I was practically paralysed by fear after learning that the assigned interpreter was from Pakistan. I do not regard myself as a particularly prejudiced person, but because of my negative encounters with Islamic terrorists with ties to Pakistan, I was nervous and uncomfortable in the interpreter's presence and could not articulate my thoughts properly. Frankly, I left the hearing shaking and my brain in blank without knowing what I have [sic] said. At paras 15 to 19 of the same affidavit the appellant states: The evidence that the appellant wants the Court to receive 15. I seek to rely on my affidavits of 18 September 2019 and 17 June 2022 and have them read at the hearing. I also seek to file another affidavit in these proceedings and have them read at the hearing. 16. My affidavit of 18 September 2019 provides an overview of the proceeding history before the appeal and the grounds that I consider relevant for this appeal. 17. My affidavit of 17 June 2022 provides more details on my personal background, including my ethnicity, my religious beliefs, my limited English language skills, the current situation in Jammu and Kashmir, and the history of tensions and religious conflicts between India and Pakistan, particularly in the disputed Kashmir regions. The affidavit also touches on why I am fearful of the Pakistani interpreter present at the Tribunal hearing. 18. I intend to adduce further evidence in one further affidavit with more supporting information with regard to the points stipulated at paragraph 4 of this affidavit. 19. I wish to inform the Court that much of the evidence I am seeking to rely on was contended in the Tribunal or the Federal Circuit Court. To the extent that they may constitute fresh and contentious new evidence, I respectfully submit that the evidence to be received by the Court is primarily focused on my personal background and the reasons for which I was persecuted and threated in India. I believe the newly adduced evidence may assist the Court in reversing the Federal Circuit Court's finding that I am not a refugee under the relevant International Convention, a fact of such probative value that it may well have changed the result in the Tribunal and the Federal Circuit Court. 24 No further affidavit (see para 15 above) was produced at the hearing of the appeal. In the circumstances, the interlocutory application must be dealt with on the basis that the additional evidence on which the appellant seeks to rely is found in his affidavits of 18 September 2019, 17 June 2022 and 13 July 2022. 25 The appellant's affidavit evidence does not identify any error in any statement attributed to the appellant by the Tribunal in its reasons, or any other information which, had it been conveyed to the Tribunal at the time, was capable of affecting its assessment of the appellant's credibility or which might, for any other reason, have resulted in a different outcome before the Tribunal. That of course has an important bearing on whether any of the additional evidence now relied on could have resulted in a different outcome before the primary judge, had it been adduced. 26 Section 27 of the Federal Court of Australia Act 1976 (Cth) provides: 27 Evidence on appeal In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken: (a) on affidavit; or (b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or (c) by oral examination before the Court or a Judge; or (d) otherwise in accordance with section 46. 27 Section 27 was recently considered in Northern Land Council v Quall (No 3) [2021] FCAFC 2 (Griffiths, Mortimer and White JJ). Having referred to s 27 and a number of the relevant authorities, the Court referred to what it described as relevant principles which guide the exercise of the Court's discretion under s 27. The Court said at [16]: The parties were in substantial agreement as to the relevant principles which guide the exercise of the Court's discretion under s 27. Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows: (1) The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle. (2) The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry. (3) The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of "fresh evidence". (4) The following two considerations will normally be relevant to the exercise of the discretion: (i) the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and (ii) the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence; (5) The interests of third parties and the public at large may outweigh a party's interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally. 28 It is not suggested that the evidence upon which the appellant now seeks to rely consists of material of which he was unaware at the time of the hearing before the primary judge. In fact, it is apparent from the primary judge's reasons that the appellant, at least as at the time of the hearing and before his Honour's decision, believed that the difficulties he says he experienced as a result of having been assigned a Pakistani interpreter, were relevant to at least one of the grounds of review upon which he relied. 29 More important, however, is the fact that the further evidence on which the appellant now seeks to rely would not have led to any different result before the primary judge. In fact, having regard to the nature of that evidence, its generality, and its lack of engagement with the particular issues that the Tribunal had with the appellant's evidence, it seems to me that the evidence now sought to be relied on could not have affected the outcome of the appellant's proceeding. I therefore propose to dismiss the appellant's interlocutory application. 30 In my opinion, the primary judge's decision was correct for the reasons given by his Honour. The appellant has failed to demonstrate any jurisdictional error by the Tribunal or any error by the primary judge. The orders of the Court will be that both the interlocutory application and the appeal be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.