Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-10-16|Before: Selway JJ

REASONS FOR JUDGMENT MANSFIELD & SELWAY JJ: 1 The question now raised in this appeal is whether the Refugee Review Tribunal ('the Tribunal') erred in its consideration of the appellant's application for a protection visa under the Migration Act 1958 (Cth) ('the Act') because, it is contended, the translation services provided both before the Tribunal and in certain material relied upon by the Tribunal were inadequate. The appeal point does not seek to criticize the decision of the primary judge when considering whether the Tribunal had committed reviewable error, because the particular point now raised was not raised before the primary judge. On the facts of this case that ground is not made out and the appeal must be dismissed.

The Factual Context 2 The appellant is from Iran. He arrived in Australia on 8 October 2000. He was, and is, an 'unlawful non-citizen' for the purposes of the Act. The respondent was taken into detention and remains in detention. 3 The respondent speaks the Farsi language. It is accepted that at all material times his knowledge of the English language was inadequate for him either to understand what was being said to him in English or to communicate in English that which he wished to communicate. 4 On 17 October 2000, the appellant was interviewed by an officer of the Department of Immigration and Multicultural Affairs ('the Department'). An interpreter in the Farsi language was provided by the Department. The appellant's claim, as interpreted into English, was that he had to leave Iran because of his involvement in political activities. It will be necessary to return to the details of that claim later in these reasons. However, the substance of his claim has remained consistent. It is that he joined with a friend in delivering 'packages' containing anti-government political documents. He was subsequently seized by the Iranian security forces, threatened with death and held for a period of eight days. During this period he was interrogated. He was bashed. He was only released after having been held for eight days when his father put up the title deeds to the family shop. The reason given to the appellant by those holding him was that he had been involved in political activities. He understood that his friend had also been arrested. 5 On 24 October 2000, the appellant applied for a protection visa. A criterion for the grant of such a visa is that the respondent is satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2)(a) of the Act. The basis for the claim made by the respondent was that he had a well-founded fear of persecution by reason of his actual or imputed political beliefs and activities. 6 Also on 24 October 2000, the appellant completed a statutory declaration. It would seem that a different interpreter from the one used at the initial interview interpreted the statutory declaration. Whilst broadly consistent with the statement given in the initial interview the statutory declaration expanded upon and differed from the record of the initial interview in various respects. 7 The respondent's claim for a protection visa was initially considered by a delegate of the Minister. On 8 December 2000, the delegate rejected the appellant's claim, primarily on the basis that his allegations, even if true, did not show that the appellant had a well-founded fear of persecution for a Convention reason. 8 The respondent applied to the Tribunal for a review of the decision of the delegate. The Tribunal heard the review application by video link. It interviewed the appellant. The hearing took place on 23 February 2001. Again the information provided by the appellant to the Tribunal was broadly consistent with that given at the first interview, but differed from it and from the information given in the statutory declaration at least to an extent. The same interpreter as had assisted during the first interview assisted during the hearing before the Tribunal. The Tribunal's decision was given on 15 March 2001. The Tribunal concluded that the appellant did not have a well-founded fear of persecution for a Convention reason. Fundamentally this was because, on the country evidence that was before it, the Tribunal concluded that if the appellant was at real risk from the Iranian authorities then he would not have been allowed to leave Iran in the first place. Even on his own story the appellant accepted that he had been allowed to leave lawfully and without hindrance. But the Tribunal went further. The Tribunal concluded from the fact that the appellant was allowed to leave Iran lawfully that the appellant's evidence of what had happened to him was not credible. It will be necessary to return to the reasons why it reached that conclusion in due course. 9 The appellant sought a review in this Court of the decision of the Tribunal. The application was heard by the primary judge. The grounds of review before his Honour involved an argument that the Tribunal had misunderstood the meaning of 'persecution' in the Convention and the Act. The primary judge rejected that argument. The appellant appealed to a Full Court. The appeal was dismissed: see Miandoab v Minister for Immigration & Multicultural Affairs [2002] FCAFC 12; [2002] FCA 106. 10 During the hearing before the Full Court, the appellant (who was unrepresented) first raised the question of the adequacy of the interpretation during the Tribunal hearing. The Full Court observed that the complaint did not relate to the reasons for judgment of the learned judge at first instance, and was assertive only. There was then no application to amend the notice of appeal, or to support the complaint by evidence, nor any request for the opportunity to do so: see O 52 r 36 of the Federal Court Rules. The appellant sought leave to appeal to the High Court. It would appear that the respondent consented to the appeal being allowed and for the matter to be remitted to this Court for further hearing of the appellant's complaint about the adequacy of the interpretation services provided at the Tribunal hearing, including whether leave should be granted to allow the appellant to raise that issue before the Full Court. The appeal was allowed by consent, and the matter remitted to this Court on that basis. 11 In this Court the appellant has sought to amend his appeal grounds in order to raise the question of the adequacy of the interpretation services in the hearing before the Tribunal, and additionally the question whether the Tribunal erred in relying upon an allegedly incorrect translation of the initial interview, in order to find inconsistencies in the various accounts given by the appellant. The respondent opposes the amendment. It does so on the basis that neither ground has any substance; that no explanation has been made as to why these grounds were not raised in the initial hearing before the learned judge at first instance; and (at least in relation to the second question sought to be raised) that this was not an issue raised before the High Court. As to the last matter, as the interpreter was, in each case, the same, it is appropriate to treat the matters raised in the High Court as also raising the issue of the adequacy of the translation of the first interview. The respondent could hardly say that it has been taken by surprise at these developments. As to the other matters raised by the respondent, it would seem to us that these were proper matters for the consideration of the respondent before it consented to the High Court appeal being allowed. Having done so, it is not for this Court to make orders which would have the effect of defeating the order of the High Court allowing the appeal. 12 We give the appellant leave to amend its Notice of Appeal in terms of the Notice filed herein on 27 May 2003.

The Appeal 13 Although there are a number of grounds of appeal, as mentioned above they involve two issues: (a) the adequacy of the interpretation services in the hearing before the Tribunal; and

(b) whether the Tribunal erred in relying upon an incorrect translation of the initial interview in finding there were inconsistencies in the various accounts given by the appellant.

14 At the relevant time the jurisdiction of this Court was as detailed in s 476 of the Act. That section then provided: '(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.' Section 476 was repealed and replaced by the Migration Legislation Amendment (Judicial Review Act) 2001. 15 Failure to provide adequate interpretation services in the hearing before the Tribunal could, in some circumstances, constitute a failure to observe the procedures in connection with the making of the decision that were required by the Act or the Migration Regulations as then required by s 425(1) of the Act. Section 425 of the Act provided at the time of the Tribunal hearing: '425 … (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.' 16 As the Full Court of this Court said in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at 299 [33]-[37]: 'Pursuant to s 425 of the Act the tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]; 64 ALD 395. In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541; 187 ALR 348 the Full Court of this court considered the nature of the obligation imposed on the tribunal by s 425 of the Act. The question before the court in that case was whether, if the tribunal constituted for a particular review had been reconstituted after an oral hearing, the second member was required by s 425 to invite the applicant to appear again and give evidence and present arguments to that new member. Their Honours held that no such requirement was imposed by s 425 and went on to make the following observations, (at [44]): "The right to a hearing is clearly an important and central right in the merits review system established by Pt 7 of the Act. This has been acknowledged in other contexts: see for example Amankwah v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 248 at [13]; 166 ALR 460; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [20]; 56 ALD 231. The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances. The right to be invited exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right. The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the parliament's intention that, at least generally, there should be a right to be invited to appear before the tribunal. Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the minister's submissions that the applicant's right to appear before the tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act. As we have noted, the Amendment Act provided a new right to present argument before the tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. Certainly there is nothing in the explanatory memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right." Section 425 is not a code setting out all of the requirements for a fair hearing by the tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the tribunal. It is clear that s 425 of the Act does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671. On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the tribunal. The statutory obligation upon the tribunal to provide a "real and meaningful" invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.' 17 The claimed obligation upon the Tribunal under s 425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented on by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6 [27] (Singh); Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Perera). In its written submissions the respondent, after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s 425 of the Act by reason of inadequate translation services the appellant would need to establish that: (a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant 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.

18 The respondent's acknowledgment in those terms seems to reflect the views of the Court in Singh (at 6[27]) and in Perera (at 22[38]-[41]) as to the first proposition and in Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18] as to the second. The appellant did not contend that a more stringent obligation lay upon the Tribunal. It is therefore not necessary to determine whether the existing authorities go so far as the respondent acknowledged. This acknowledgment provides a useful basis for testing the appellant's argument. The respondent has filed an affidavit setting out a fresh translation by a different translator of the proceedings before the Tribunal. The appellant accepts that the new translation is accurate. 19 The translation of the Tribunal hearing now indicates those things said in English and not interpreted into Farsi, the translation of those statements said in Farsi and not interpreted into English, and those things interpreted into or from Farsi which may or should have been differently interpreted. The very substantial part of the hearing before the Tribunal appears to have been fully and accurately interpreted. There are parts where the appellant's adviser or the interpreter and the Tribunal had discussions in English which were not fully interpreted to the appellant, but they generally concerned timing or procedural matters or comments upon material. There is nothing to suggest the Tribunal regarded those discussions as evidentiary material. There are a few passages where the interpreter has sought to clarify with the appellant an answer, and only the clarified answer has been interpreted into English. Those occasions do not show the clarified answer, as interpreted into English, was inaccurate or incomplete. On a few occasions the interpreter asked the Tribunal to clarify or restate the question so he could interpret it to the appellant. They did not result in the question to the appellant being misinterpreted. The strong overall impression is that the interpreter generally fully and accurately interpreted what the Tribunal said to the appellant, and what the appellant said to the Tribunal. In reaching that view, regard has been had to the table of matters presented by senior counsel for the appellant of claimed irregularities in the interpretation at the Tribunal hearing. 20 It is clear from that translation that the interpreter experienced some difficulties in translating what the appellant was saying. The interpreter said as much. The interpreter told the Tribunal member that the appellant was 'all over the place and I cannot interpret that way'. It would appear from the context that this was a comment that the appellant was talking in parts of sentences, and not completing the sentences. The interpreter also said that 'I have to have a sentence - something I understand and can interpret. Now if someone is just giving bits, bits, bits and it is not a proper sentence it is all over the place…'. There is nothing before us to suggest that these difficulties were not real difficulties that any interpreter would have faced. They appear to have been prompted by the appellant's manner of answering questions. There is certainly nothing that would suggest that these difficulties showed that the interpreter was inaccurate or unreliable. Indeed, it would seem that the interpretation was generally fair and accurate. The interpreter, during one such exchange with the Tribunal, told the appellant that he was having difficulty interpreting the appellant's answers because his words 'have a special flowing and is up and down'. But the transcription as noted above, generally accurately records in English what the appellant said in answer to questions. 21 The only matter where it is established that the translation is inaccurate is at one point where the interpreter before the Tribunal translated what the appellant said as 'the fourth night' whereas the correct translation was 'the fourth day'. The respondent accepted that the translation at this point was in error. However, that does not assist the appellant. The Tribunal was interested in various inconsistencies in the appellant's statements about a period he said he was detained by the Iranian security services. This included inconsistencies as to dates. These are discussed in more detail below. However, there is no suggestion that the Tribunal attached any significance to the issue of the fourth day or the fourth night. The Tribunal does not even mention that issue. 22 Consequently, the translation of the hearing before the Tribunal was not so inadequate that it could be said that the appellant was effectively prevented from giving evidence at the Tribunal hearing. In fact, the converse is the more accurate view of the interpretation of the hearing. Nor could it be said that the single error that was identified was material to the conclusions reached by the Tribunal. In the result the only identified basis of review in relation to the translation of the hearing before the Tribunal under s 476(1)(a) of the Act is not made out. 23 The other argued basis for review was that there were errors by the Tribunal in relying upon the translation of the first interview when that translation contained errors. The appellant properly conceded that the mere fact (if fact it be) that there were errors in the translation of the first interview or in other material used by the delegate would not be sufficient. The hearing before the Tribunal was a hearing de novo. It was capable of curing any deficiencies of this sort in the initial interview: see Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; Calvin v Carr [1980] AC 574. It is necessary to identify errors by the Tribunal that fall within the jurisdiction of this Court under s 476 of the Act. 24 The appellant argues that there are translation errors in the first interview and that the Tribunal fell into relevant error in relying upon the transcript of the first interview as identifying various inconsistencies in the various statements given by the appellant. 25 The appellant argues that the relevant error, if established, falls within s 476(1)(a) of the Act in that the Tribunal did not comply with the requirements of s 425 of the Act. Those requirements have been discussed above. They relate to the question whether the invitation that must be afforded to an applicant to appear before the Tribunal to give evidence and present arguments is a meaningful one. That depends upon the capacity of the applicant to take part in the hearing. To that extent the section may impose obligations (including in particular circumstances an obligation to make inquiries) that could extend beyond what would ordinarily be required for a fair hearing. But s 425 is nevertheless directed to the invitation that must be afforded to the appellant. In our view on the present matter, the reliance of the Tribunal on a mistakenly translated first interview, even if it occurred, would not have breached the requirements of s 425 of the Act. The circumstances do not provide any basis for the contention that the Tribunal did not comply with s 425 of the Act. Indeed, it is difficult to conceive of circumstances in which claimed inaccuracies in the transcription of what is often called the compliance interview could affect the nature of the Tribunal's obligation under s 425, but we do not wish to foreclose that possibility. Such inaccuracies, depending on the circumstances, might give rise to review on other grounds. No other procedural requirement under the Act or the Migration Regulations was identified in this matter. Accordingly the ground of review based upon s 476(1)(a) of the Act must fail. 26 In the alternative the appellant argues that the relevant error, if established, falls within s 476(1)(g) of the Act in that there was no evidence that justified the Tribunal in making the decision it did. It is clear that this ground of review can only be made out if it is established that the error is one that also falls within s 476(4). In this case the appellant is required to establish that the decision is based upon a particular fact and that fact does not exist: s 476(4)(b). It is clear from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 (see, in particular, Gaudron and McHugh JJ at 414 [56], 414 [58]) that the non-existence of one or even a number of facts is not sufficient if there remain other facts that support the Tribunal's conclusion. It must be established that the particular fact upon which the decision is based does not exist. 27 This requires some assessment of the factual errors that the appellant has identified in the translation of the first interview. There seem to be three errors identified. The first relates to various references by the appellant to his father bringing to the security services the title deeds to the shop operated by the appellant so as to secure the appellant's release. This was wrongly translated as a reference to the title deeds to 'the house'. 28 The second error relates to the translation of the word 'Etalaat' (the proper name of the security services) as 'security forces'. 29 The third relates to the date given by the appellant. It is clear that what he said was the date according to the Arabian calendar. This was interpreted as the relevant date under the Western calendar. It is not clear whether the translation was inaccurate or not. It may have been a day out. 30 The Tribunal's attention was directed to these issues. The appellant's adviser drew specific attention to the difficulties that confronted the Tribunal in relying on the record of the first interview, and gave reasons for that contention. The adviser said that the circumstances of the first interview made it 'difficult to know that this was accurately taken down'. The Tribunal's attention was also directed to the general problem of undue reliance upon the first interview. The Tribunal said that it had noted that point in detail. 31 There is some mention in the Tribunal's reasons of the inconsistency of some of the statements made in the first interview with some of the statements made later. And in this context there was reference in the Tribunal's analysis of inconsistencies to the three specific matters identified by the appellant as errors in the translation of the first interview. The appellant argued that these references showed that the translation errors that have now been identified formed an essential aspect of the Tribunal's reasoning that led to the credit finding against the appellant. 32 Nevertheless it is clear that the Tribunal did take notice of the issues raised by the adviser. The Tribunal specifically noted: 'In the course of the hearing, the Applicant's adviser presented a number of arguments in support of caution with regard to the quality of the evidence reported from the Applicant's [first interview]. Generally these arguments seem reasonable. However, there is enough consistency and continuity of information in the overall presentation of this case to indicate that the record of [interview] is, at the very least, a generally accurate account of the Applicant's sustained position…Were [the reference to house instead of shop] and the timelines the only inaccuracies, the Tribunal might agree that the whole of the Compliance interview record should be ignored. However, there are other factors which make it harder for the Tribunal to give this problem the benefit of the doubt.' The Tribunal then proceeded to discuss other inconsistencies in the statements of the appellant, particularly one relating to whether or not the security forces had told the appellant that his friend had informed on him. This issue was not one that was affected by any translation error of the first interview. 33 It would seem to be clear from the reasons of the Tribunal that matters about which there were translation errors of the first interview did not form part of the basis for the Tribunal's decision. As mentioned above, the essential basis of the decision of the Tribunal was that it was implausible that the Iranian government would have released the appellant from detention, much less allowed him to leave the country lawfully, if there was a real risk of persecution by reason of his political beliefs. But the Tribunal did not decide the matter solely on the basis of this implausibility. It proceeded to consider other aspects of the appellant's claim. The Tribunal commented: 'On a number of related factors, and notwithstanding arguments advising caution with regard the integrity of the record of the [first interview], the Tribunal had great problems with the Applicant's credibility. Looking at the period of detention, the Applicant gave significantly different accounts, after the [first interview], as to the duration of his custody, as to what was the thrust of his first interrogation, and as to who was its subject, and he also deviated in his evidence as to when or if he was ever denounced by [his friend]. The cumulative significance of these variations in his evidence prevents the Tribunal from accepting that he was detained in the circumstances claimed, and therefore it cannot accept that he was released in the manner or on the conditions he claims.' 34 None of the inconsistencies to which the Tribunal referred in the above passage was one involving any of the errors in translation of the first interview that the appellant identified. This is reinforced by the specific reference made by the Tribunal to those errors: 'The Tribunal's conclusions in this matter are the same whether one accepts that two people came to the Applicant's house to lead him to the car or three; whether he was arrested on 2 or 3 August 1999; whether he last saw [his friend] on 10 or 11 July 1999; and whether it was his family's shop or house that was posted as a bond for his release.' 35 Even accepting that the translation errors that have been identified existed, and to that extent the three 'facts' contained within the translated record of the first interview did not exist, it is clear that the Tribunal did not base its decision on those facts. Consequently the ground of review in s 476(1)(g) of the Act has not been made out. 36 There being no other basis for review that has been identified, the appeal must be dismissed with costs. 37 The Court records the assistance it has received from counsel. It particularly records its appreciation for the submissions made on the appellant's behalf by Mr O'Connor QC who appeared pro bono. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield and Selway.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

PLACE: ADELAIDE (HEARD IN MELBOURNE VIA VIDEO LINK TO PERTH)

REASONS FOR JUDGMENT EMMETT J: 38 The appellant is a citizen of Iran who arrived in Australia on 8 October 2000. On 24 October 2000, he applied for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 8 December 2000, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa. On 13 December 2000, the appellant sought review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 15 March 2001, the Tribunal affirmed the decision not to grant a protection visa. 39 The appellant then applied to the Federal Court of Australia, by application dated 29 March 2001, for review of the decision of the Tribunal. On 6 August 2001, Hely J ordered that the application be dismissed with costs: see Miandoab v Minister for Immigration & Multicultural Affairs [2001] FCA 1108. The appellant, by notice of appeal dated 16 August 2001, appealed to the Full Court. On 12 February 2002, for reasons then given, the Full Court, comprising Drummond, Mansfield & Emmett JJ, ordered that the appeal be dismissed: see Miandoab v Minister for Immigration & Multicultural Affairs [2002] FCAFC 12; [2002] FCA 106. 40 The application to the Court of 29 March 2001 specified the following grounds of review: '1. There are many misunderstandings about my case story made by RRT member that are the base (sic) of his decision. 2. My RRT member has made many mistakes about the dates related to my case story.' 41 The notice of appeal filed on 16 August 2001 specified the following grounds; 'I had applied to the Court for an order for review of the RRT's decision. But unfortunately the Court ordered that the application be dismissed. However I was informed about this matter only by my lawyer. I had told my lawyer some matters about my case story to be posed in the Court. But unfortunately he hasn't considered (sic). I am sure that it is necessary that I appear in the next Court.' 42 However, in the course of the oral hearing on 12 February 2002, the appellant raised the question of the adequacy of interpretation before the Tribunal. The matter was raised by the appellant in the following terms: 'During the Tribunal hearing, halfway, the interpreter has asked a member of the Tribunal that: "I can't interpret for this person because I cannot understand him. He speaks up and down and I have problem interpreting that." But the member of Tribunal just ignored that and he said, "You just carry on and interpret as good as you can." This is all in my tape if you listen to that. How come if there is any mistake there or if the interpreter could not interpret everything correctly, isn't that playing with my life?' 43 In the course of giving his reasons for judgment on 12 February 2002, Drummond J relevantly said (at [12]): 'The appellant also complained in this Court that part way through the hearing before the Tribunal the person assigned to interpret for him said that he or she was having difficulty in being able to interpret properly for the appellant. It appears that this is the first time that this complaint has been made and that is that it was not raised in the proceedings before Hely J. This Court, being concerned with an appeal from Hely J, cannot give any effect to the assertions made by the appellant from the bar table about that matter now.' Mansfield and Emmett JJ agreed, for the reasons given by Drummond J, that no error had been demonstrated on the part of Hely J in dismissing the application for review. 44 Order 52 r 36 of the Federal Court Rules applies to any application to the Court to receive evidence in a proceeding on an appeal additional to the evidence in the Court below, unless the Court otherwise directs. Under Order 52 r 36(3), such an application is to be made by motion on the hearing of the appeal without filing or serving notice of the motion. However, Order 52 r 36 subrr (4), (5), (6), (7) and (8) provide as follows: '36 Further evidence on appeal … (4) The grounds of the application shall be stated in an affidavit.

(5) Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the Court to receive shall be given by affidavit.

(6) The applicant shall file any affidavit not later than 21 days before the hearing of the appeal.

(7) The evidence of any other party to the appeal shall unless the Court or a Judge otherwise orders be given by affidavit filed not later than 14 days before the hearing of the appeal.

(8) A party to the appeal shall, not later than the time limited for him to file an affidavit under this rule:

(a) lodge as many copies of the affidavit as the Registrar may direct; and

(b) serve 3 copies of the affidavit on each other party to the appeal.' 45 Thus, it was strictly correct to say that the Full Court could not 'give any effect to the assertions made by the appellant from the bar table'. There had been no evidence before the primary judge concerning the adequacy of interpretation and there had been no compliance with O 52 r 36. Thus, at that stage, there was no material before the Court to enable the Court to consider the assertions made by the appellant concerning adequacy of interpretation. In the circumstances, it was not open for the Full Court, at that stage, to deal with the complaint. 46 On the other hand, strict compliance with the Rules could not be expected of a litigant in person with little comprehension of English. It would have been possible to treat the comments by the appellant concerning the adequacy of the interpretation as an application for leave to amend the application and the notice of appeal and to adduce fresh evidence. It would then have been necessary for an adjournment so that evidence could be adduced as to the additional evidence that would be relied upon, upon the assumption that leave to amend were granted. That course was not suggested by the Minster. 47 On 24 October 2002, in the course of the hearing of an application by the appellant for special leave to appeal to the High Court of Australia, counsel who appeared for the appellant was invited to 'place some emphasis' on [12] of the reasons of Drummond J quoted above. McHugh J observed: 'The matter may have no substance in it, but it does seem, prima facie, to be an error for the [C]ourt to say that they cannot give any effect to the point because it was not raised below.' 48 In the course of the same hearing, Hayne J made the following observations: 'He had a right, did he not, to attend before the Tribunal and be heard?… He had a statutory right to be before the Tribunal and be heard by the Tribunal, did he not?… His contention … was that he was not heard because the interpreter was unable, through no fault of the interpreter, to deal with, what was it, a northern dialect, was it not?… That there is a want of statutory procedures, arguably, if that is what in fact has occurred. Now, there is a great factual premise not established but why were those not matters that the Full Court could have examined or received evidence on?' 49 After calling on counsel for the Minister to respond to the observations thus made, the High Court ordered that:

special leave be granted to the appellant to appeal to the High Court from the orders of the Full Court;
the grant of special leave be limited to the ground that the Full Court erred in concluding that it could not give effect to the appellant's complaint that the person assigned to interpret his submissions and evidence to the Tribunal did not do so adequately. 50 On 13 February 2003, the High Court made orders, by consent, that:
the judgment and order of the Full Court of 12 February 2002 be set aside;
the matter be remitted to the Full Court for further hearing and determination of the appellant's complaint that the person assigned to interpret his submissions and evidence to the Tribunal did not do so adequately, including whether leave should be granted to allow the appellant to raise that issue on appeal. 51 In essence, the task of the Full Court, on remitter, must begin with consideration of any application that the appellant is minded to make to:
amend the original application to the Court;
amend the grounds of appeal from Hely J to the Full Court;
adduce additional evidence on the hearing of the appeal. The amendment of the original application and of the notice of appeal by raising grounds related to the inadequacy of interpretation would depend upon the outcome of any application for the exercise of the Court's discretion to permit the appellant to adduce additional evidence. 52 It is curious that the Minister, having stood by while the appellant made his assertion about the adequacy of the interpretation and the Full Court gave its reasons for dismissing the appeal, then consented to the Full Court's order being set aside. In the absence of any reasons of the High Court for setting aside the orders of the Full Court, the Minister must be taken to have accepted the observations of McHugh and Hayne JJ as a basis for consenting to the orders of the Full Court being set aside. 53 On the first hearing of the remitter on 25 March 2003, the Court directed that the Minister provide a verified transcription in English of the proceeding before the Tribunal, including the words spoken by the appellant and the interpreter in the Farsi language. The Minister consented to the making of the direction to ensure that the true facts relating to the hearing before the Tribunal were available to the Court. While the Minister was under no obligation to consent to such a direction, since it is for the appellant to satisfy the Court that a case has been made out for the indulgence now sought, it was appropriate that the Minister adopt the attitude that he did in the interests of maintaining the integrity of Commonwealth administrative action. 54 The same Full Court had been constituted to deal with the matter remitted by the High Court. Following the direction referred to above, the proceeding was then adjourned by consent, on the basis that, because of the imminent retirement of Drummond J, the hearing on 25 March 2003 would be treated as a directions hearing. The parties indicated that there would be no objection to the Full Court that was to hear the remitter being constituted by Mansfield and Emmett JJ and another judge of the Court. Since the matter that will be dealt with on remitter is a matter that was not before the Full Court at its original hearing on 12 February 2002, there would be no objection to such a course, even if the parties did not consent: see Orr v Holmes (1948) 76 CLR 632. 55 Before the date fixed for the further hearing of the appeal following the remitter, it became apparent that the Minister would not be able to comply fully with the directions given by the Court. Accordingly, on the day fixed for the further hearing, the Court conducted a directions hearing only. In the course of the directions hearing, it became apparent that the appellant sought to rely on a different question from that ventilated in the course of the hearing of the application for special leave to appeal to the High Court. The appellant said that not only was the interpretation at the hearing before the Tribunal inadequate but also that the interpretation at the compliance interview when the appellant was first apprehended in Australia was inadequate. The appellant claimed that the answers he gave on both occasions were consistent and that there was therefore an additional ground of review of the decision of the Tribunal. 56 The substance of the ground, as articulated by senior counsel for the appellant in the course of the directions hearing on 14 May 2002, was that there was a denial of procedural fairness because the interpreter who acted at the initial compliance interview, who is the same interpreter as acted at the hearing before the Tribunal, did not provide adequate interpretation services at the original interview and that led to a wrong conclusion that the appellant was an unreliable witness. It was said that, when the errors in interpretation are excluded, there is no basis for a finding that the appellant gave inconsistent evidence and was therefore an unreliable witness as found by the Tribunal. 57 In the light of the history of the matter to date, the Court gave directions for further formulation of the proposed grounds of review and of appeal and preparation of evidence as to the matters that the appellant now seeks to raise. On 27 May 2003, the appellant filed a proposed amended notice of appeal substituting the following grounds: '1. Procedures that were required by the Migration Act 1958 (Cth) ("the Act") or the Regulations to be observed in connection with the making of the decision by the Refugee Review Tribunal ("the RRT") were not observed. (Section 476(1)(a) of the Act.)

There was a miscarriage of justice at the RRT hearing because the interpreter had difficulty in interpreting adequately the RRT Member's questions and the Appellant's evidence in response to those questions. (Section 476(1)(a)).
There was also a miscarriage of justice at the RRT hearing because the RRT Member relied upon the report of the initial compliance interview of 17 October 2000, which contained errors in that it recorded information purportedly given and statements purportedly made by the Appellant but which were interpreted inadequately by the interpreter at that initial Compliance interview. (Section 476(1)(a)).
The mandatory procedural requirement provided for in section 425(1) of the Act (ie. "The Tribunal must invite the Applicant to appear before the Tribunal to give evidence … relating to the issues arising in relation to the decision under review") has not been adequately complied with, by virtue of the inadequacy of the interpreter's interpretation services. (Section 476(1)(a)).
Proper procedures were not followed at the RRT hearing. The RRT should have ensured that the Appellant was provided with an interpreter who could and did interpret the Appellant's evidence adequately. The RRT should have stopped the hearing and arranged for a hearing at which the Appellant would have the adequate interpretation services of another interpreter. (Section 476(1)(a)).
The proper procedure was not followed at the initial compliance interview in that the interpreter who acted at that interview (who is the same interpreter who acted at the RRT hearing) did not provide adequate interpretation services, and this has led to the wrong conclusion by the RRT that the Appellant was, on the whole of the evidence before the RRT, an unreliable witness. (Section 476(1)(A).
The person who purported to make the decision did not have the jurisdiction to make the decision. (Section 476(1)(b)).
The RRT made a jurisdictional error. It acted in excess of jurisdiction by allowing the hearing to proceed despite the inadequacy of the interpretation services provided to the Appellant. (Section 476(1)(b)).
There was a denial of procedural fairness by the provision of inadequate interpretation services at the RRT hearing and/or the initial Compliance interview, and this involved failure to comply with a condition of the exercise of decision-making power, and jurisdictional error (see S157/2002 v Commonwealth of Australia [2003] HCA 2, paragraphs 25 and 45; and Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82). (Section 476(1)(b)).
The RRT decision was not authorised by the Migration Act or the Regulations (section 476(1)(c)), for the reasons set out in grounds 1 to 9 above.
There was no evidence or other material to justify the making of the decision by the RRT (section 476(1)(g)).
If the questions asked of the Appellant in Farsi by the interpreter and the answers given in Farsi by the Appellant to the interpreter at the initial Compliance interview on 17 October 2000 and the RRT hearing on 23 February 2001 had been adequately interpreted, there would not be any inconsistencies in the Appellant's statements, and there would be "no evidence" to justify the adverse finding on credibility against the Appellant. When the interpreter's errors in interpretation are excluded, there is "no evidence" for the finding that the Appellant is an unreliable witness, that finding must be set aside, and the decision of the RRT to deny the Appellant a protection visa is unable to be justified. (Section 476(1)(g)).

statements made in English that were not interpreted into Farsi;
the English interpretation of statements made in Farsi that were not interpreted into English;
more precise interpretations of certain statements that had originally been interpreted either from Farsi into English or vice versa. 59 Mr Kazemi is accredited as a Level 2 interpreter by the National Accreditation Agency for Translators and Interpreters and has been employed as an interpreter from the Farsi language into English and from English into the Farsi language for approximately 12 years. Mr Kazemi confirmed that the transcript as amended contained a full translation of all statements made in Farsi at the hearing before the Tribunal and expressed the opinion that the interpretation from Farsi into English and vice versa of what was said at the Tribunal hearing was of a good standard. 60 In his second affidavit, Mr Kazemi referred to a written record of interview exhibited to him. He said that, although it was not a complete transcript of what was recorded on the relevant tape, it was an accurate summary or record of the questions and answers in English. There was also exhibited an English translation of the questions asked and answers given in Farsi in relation to the following questions in the original application for a protection visa:
Why did you leave your country of nationality (country of residence)?
Why did you choose Australia as your destination?
Do you have any reasons for not wishing to return to your country of nationality (residence)? 61 Mr Kazemi was not cross-examined on any of the material in his affidavits. His evidence indicates that there is no substance in the proposed new grounds of appeal. I have read in draft the reasons of Mansfield and Selway JJ. I agree that, for the reasons given by their Honours, if leave to amend were granted, the appeal should be dismissed. However, in the circumstances, I would not grant leave to amend. Accordingly, the appeal should be dismissed for the reasons given on 12 February 2002. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Counsel for the Appellant: R K O'Connor QC (Pro Bono)

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 420, 425, 451, 476

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Cases Cited (20)