BAM16 v Minister for Immigration and Border Protection

Proceeding in the Federal Circuit Court (FCC) 21 On 3 May 2016, the applicant filed an application for a constitutional writ within the FCC's jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 5 April 2016 affirming the decision of the Delegate not to grant the applicant a protection visa. 22 The three grounds of the review application were: Ground 1 - The Tribunal member fail [sic] to provide me with a fair hearing. Ground 2 - The Tribunal failed to follow rules of natural justice. Ground 3 - The Tribunal committed error of law. 23 On 9 September 2016 the Primary Judge dismissed the application for the following reasons.

Ground 1 24 To the extent that this ground alleged that the applicant did not have a fair hearing, the Primary Judge found that the applicant did have a real and genuine hearing before the Tribunal where he presented his claims and evidence.

Ground 2 25 The Primary Judge found that the applicant was able to attend a hearing to advance his claims and present submissions to the Tribunal in support of his claims and, that the Tribunal identified the applicant's claims and evidence and engaged in an evaluation of the applicant's evidence and relevant country information. The Primary Judge further observed that the adverse findings made by the Tribunal were open to it on the material before it, and that as a result, Ground 2 fails to make out any jurisdictional error.

Ground 3 26 The Primary Judge concluded that Ground 3 was a bare allegation of an error of law and that he was not satisfied that the Tribunal had failed to comply with its statutory obligations or acted in excess of its power to conduct the review. 27 In relation to the submissions made orally by the applicant at hearing, the Primary Judge found that the submissions amounted to an impermissible challenge to the merits of the application and that it was a matter for the Tribunal to determine the weight it placed on country information. The Primary Judge found that there was no material before him to establish that the Tribunal failed to afford the applicant procedural fairness.

Explanation for delay 28 The various explanations proffered by the applicant for the delay include that he was 'disturbed' by the illness of his grandfather with whom the applicant had a deep emotional attachment, 'depressed and shocked' over his grandfather's subsequent death, and 'depressed and shocked' over the adverse outcome of his case and due to 'financial worries' because of a loss of Centrelink support, altogether preventing him from pursuing an appeal. 29 There is a presumption that a litigant of full age is competent to manage his or her affairs: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [26]. The contrary has not been proven and in particular, this cannot be said to be a case where a lack of capacity is clear enough so as not to require medical evidence: L v HREOC at [23]-[27]. The applicant did not provide expert medical evidence as to his claimed conditions nor evidence as to how these prevented him from filing his application. Nor was there evidence as to the applicant's financial situation. Without further justification, impecuniosity is not a satisfactory explanation for the substantial delay: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]. 30 It was further submitted that he could neither speak nor read English. The applicant also submitted that he had no understanding of the Australian legal system and laws, and thus did not understand there was a period of time for filing a notice of appeal however the applicant is in no different position to other applicants for judicial review under the Act, who have limited English language skills and are able to file their applications within the prescribed time limits: WZAWB v Minister for Immigration and Anor [2016] FCCA 1345 at [91]. 31 The Minister accepts that there is no prejudice to him if the Court were to grant an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision making: 32 I am not satisfied by the applicant's explanations for the delay. Nonetheless, I will consider the applicant's draft grounds of appeal and whether they disclose that the decision of the Primary Judge is attended by sufficient doubt to warrant an extension of time being granted.

Draft grounds 33 There are 7 grounds in the applicant's draft notice of appeal. The applicant's counsel, in written submissions, in effect, concentrated principally on two broad grounds. (1) whether an extension of time is necessary in the interests of the administration of justice; and (2) whether the applicant was denied procedural fairness and, if that is the case, the judgement of the FCC suffers from jurisdictional error. 34 Nonetheless, I will deal with all of the grounds. Several may be considered in combination.

Ground one 35 This ground asserts that the interpreter provided for the purpose of the FCC hearing was inadequate. However the applicant has not provided evidence demonstrating that misinterpretation occurred nor how any misinterpretation did in fact occur or, further, how any such misinterpretation could have resulted in the hearing being unfair. 36 Unlike other "interpretation" cases I do not have the benefit of the full transcript: cf Perera v Minister for Immigration, Multicultural and Indigenous Affairs [1999] FCA 507 at [38]-[39]. As Allsop CJ noted in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [5], albeit in the context of alleged misinterpretation before the Tribunal as opposed to the FCC: [w]hether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case. 37 His Honour considered relevant authorities on this particular issue at length, endorsing also Kenny J's examination of the place of adequate interpreting in Perera including, at [14], her Honour's statement at [38] that the question was: whether the material … is sufficient to make out [the] case that the interpretation …was so incompetent that [the appellant] was prevented from giving [their] evidence. 38 There was no proven misinterpretation. The reasons for judgment demonstrate the contrary position as to the adequacy of the interpretation. As the Minister submits: (1) the applicant first stated that he understood the Court (through the interpreter); (2) the applicant then raised an issue regarding the standard of interpretation whilst the interpreter was reading the first respondent's submissions to the applicant; (3) the Court was re-convened and the Court went through the submissions paragraph by paragraph, through the interpreter, with the applicant confirming that he understood what had been said; (4) the applicant raised no further issue in relation to the standard of interpretation; (5) the applicant made detailed submissions after hearing the submissions of the first respondent; and (6) the Primary Judge was satisfied that the interpreter was able to communicate effectively with the applicant and the interpreter's accent did not in any way prevent the applicant from having a real and genuine hearing before the Court. 39 The factual assertion as to inadequacy of interpretation is groundless. 40 Moreover, as the Primary Judge stated at [21], the applicant, after raising the issue as to purported inadequacy of interpretation, and following the approach adopted by the Primary Judge referred to, raised no further issues on this subject. 41 The applicant then proceeded to put detailed submissions before the Primary Judge following the Minister's submissions. He did not suggest that he was not in a position to argue his case because he had, for the first time, the content of the Minister's submissions interpreted for him at the hearing before the Tribunal. 42 There is no evidence to support the submission that the interpreter was not accredited by National Accreditation Authority for Translators and Interpreters. No appealable error is revealed by this ground.

Ground two 43 This ground asserts that the Primary Judge did not provide the applicant with the opportunity to go through the Minister's written submissions and that he had not been provided with a copy of the submissions in advance. To an extent, this ground overlaps with the first ground, concerning as it does, in part, the adequacy of interpretation. 44 The applicant was served with a copy of the Minister's submissions on 7 September 2016 two days before the hearing by both email and express post in accordance with the orders of the Primary Judge dated 24 August 2016. 45 The FCC reasons for judgment indicate that the applicant raised before the Primary Judge, that he had not yet read the written submissions of the Minister. The Primary Judge deals with this in the way set out in his reasons at [19]-[20]: 19. The Court then identified the evidence. At the conclusion of the evidence, the applicant indicated that he had not yet read the written submissions of the first respondent. The Court directed the interpreter to read the first respondent's written submissions to the applicant. The reading of those submissions to the applicant was then commenced. Those submissions contained some 17 paragraphs. 20. When the interpreter reached paragraph 11, the applicant raised with the Court an issue regarding the standard of interpretation as he could not understand the interpreter's accent. The Court reconvened to ascertain from the applicant the nature of the problem in relation to the applicant understanding the interpreter. The Court went through, paragraph by paragraph, the submissions through the interpreter with the applicant, and the applicant confirmed that he understood what was said by the Court. The Court is satisfied that the interpreter was able to communicate effectively with the applicant, and that the interpreter's accent did not in any way prevent the applicant form having a real and genuine hearing before this Court. 46 This approach was eminently fair and reveals that the applicant had an adequate appreciation of the content of the submissions. The evidence supports the finding that he did receive a copy of the submissions prior to the hearing. 47 Ground 2 is without substance.

Grounds three and seven 48 The applicant requires leave to raise these grounds of appeal as they were not raised in the court below: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [79]. The grounds assert that the Tribunal's decision was based on 'hearsay evidence', that the Tribunal failed to consider the risk of harm faced by the applicant in the reasonably foreseeable future and that the Tribunal relied 'too much' on the material provided by the Minister. 49 As to the question of the weight given by the Tribunal to the country information, it is, as the Minister submits, well established that the choice of, and weight to be given to country information is a matter for the Tribunal: NAHL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. Furthermore, I accept that country information post-dating the Tribunal's decision is inadmissible and irrelevant to the issue of whether the Primary Judge made any appellable error. 50 The submission that the Tribunal misapplied the relevant law is unfounded. The Tribunal set out the relevant law in annexure A to its decision and made express findings that the applicant did not have a well-founded fear of persecution if returned to his home country now or in the reasonably foreseeable future. 51 I would refuse leave to raise these grounds which are, in any event, without merit.

Grounds four and five 52 These grounds asserts that the primary Judge was biased, did not provide the applicant with the opportunity to amend his grounds of review and considered only the grounds raised in the written application. 53 I have treated the allegation of bias, in context, as one of apprehended bias, based on the assertion that the Trial Judge failed to take into consideration the appellant's arguments put forward during the hearing, other than those mentioned in the written application. 54 The relevant test is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Johnson v Johnson (2001) 201 CLR 488 at 492 [11]-[12]. 55 There is no material to support such a serious allegation, nor the suggestion of a denial of procedural fairness. Orders made on 7 June 2016, provided the applicant with the opportunity to file and serve an amended application. He was afforded the opportunity, at the hearing, to make oral submissions. His submissions were considered by the Primary Judge at [22]-[28] but were found not to identify legal error. The Primary Judge's conclusions, after affording the applicant a proper hearing, are far removed from establishing apprehended bias.

Ground six 56 This ground asserts that the Tribunal failed to take into account the applicant's claim that he would face harm as a result of 'tribal animosities' due to his transportation of injured and martyred persons to hospitals. Again, he requires leave to raise this ground of appeal which was not raised below: Gupta at [79]. 57 There was no claim by the applicant, before the Tribunal, that he feared harm as a result of his transportation of injured or martyred persons. The Tribunal was not required to consider a claim not made nor one which did not squarely arise on the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[59]. His evidence before the Tribunal concerning his claimed fear of harm as a result of his employment as a taxi driver was limited to the claims that he had been threatened and that he was known everywhere. The Tribunal considered the claims made by the applicant and made findings in relation to those claims that were open to it. 58 No jurisdictional error on the part of the Tribunal has been established nor is there appealable error in the Primary Judge's reasons.

Orders 59 The application for an extension of time and leave to appeal will be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.