BLG15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental to the appeal, taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The appellant is a citizen of Lebanon. He is adherent to the Muslim faith and, more particularly, the Shia branch of that faith. He came to Australia lawfully in June 2013 on a visitor visa. On 2 September 2013, he made application under the Migration Act 1958 (Cth) (Act) for that class of visa, known as a Protection Visa (visa). The then-Refugee Review Tribunal (Tribunal), came later to offer the following summary of his claim for a visa at [3] of its reasons: 3. In his application for a protection visa, the applicant essentially claimed that he entered into a Shia temporary marriage contract (motaa) with a girl from a 'Sunni-Wahabi' family. He claimed that his partner's family belong to 'Jamaa Islamie' and that they have found out about the relationship. He claimed that they are now looking for him with the intention of seriously harming him. He further claimed that Sidon is the gateway to Southern Lebanon and if he were to return to his home village he would have to pass through Sidon where many Sunni Wahabi families reside. 2 There is no suggestion either in the appeal or, for that matter, before a Federal Circuit Court that the Tribunal misunderstood the nature of the claim for the visa. On 9 July 2014, a delegate of the Minister responsible for the administration of the Act, now the first respondent, Minister for Home Affairs (Minister), refused the appellant's visa application. The appellant then applied to the Tribunal for the review on the merits of the Minister's delegate's decision. On 15 June 2015, for reasons given in writing, the Tribunal decided to affirm the decision not to grant a protection visa to the appellant. It is a feature of the proceedings before the Tribunal that the appellant had the benefit of representation by a migration agent. 3 The appellant then sought the judicial review of the Tribunal's decision by the Federal Circuit Court. On 3 July 2018, that court dismissed with costs the appellant's judicial review application. It is not necessary for the purposes of determining this appeal to canvass the reasons for the lengthy passage of time between the Tribunal's decision and when the appeal came ultimately to be heard in the Federal Circuit Court in detail. It is, though, a noteworthy feature of the case that although the proceeding was the subject of a case management hearing on 11 December 2017, it was not possible for it to be listed for hearing by that court before 3 July 2018. That may well give an indication of the particular demands on that court and the judicial resources available of cases arising under the Act. However that may be, the appellant has appealed against the Federal Circuit Court's order of dismissal. 4 The following are his grounds of appeal: 1. I accept His Honour's sympathy with me even though I went to the Court unrepresented. As yet I have not received the judgment of His Honour Judge Cameron. 2. My claim was misunderstood as on one hand the Tribunal accepted that I entered into a temporary marriage contract. 3. I continue to believe that even though the interpretation issue identified by the agent was trivial in nature in my opinion it was serious and misled the Tribunal in understanding my genuine fear of harm. 5 These grounds, in essence, raise bases of challenge to the Tribunal's decision considered but rejected by the Federal Circuit Court. The appellant did not develop these grounds in oral submissions, but I have no doubt, having heard the appellant, of the genuineness of his belief that he is entitled to a visa. 6 As is not uncommon, and this is no criticism of a man not fluent in English, much less trained in the law, he displayed, in the oral submissions which he did make, a belief - genuine, but mistaken - as to the differences and roles between the judiciary and the administrative branch of government in relation to the granting of or refusal of visas under the Act according to law. The appellant's migration agent had raised with the Tribunal, by a submission after the hearing conducted by the Tribunal, an interrogative note about the accuracy of translation into the Arabic language of evidence given by the appellant. As to this, the Tribunal stated at [23]: 23. Concerning the applicant's representative's submissions in relation to the standard of interpreting at the hearing, the applicant was assisted by a NAATI qualified and highly experienced interpreter in the Arabic and English languages. As acknowledged by his submission, the representative has limited Arabic language skills. The Tribunal, on the other hand, is proficient in the Arabic language and did not, at any point, form the impression that the standard of the interpreting at the hearing had prevented the applicant from communicating his claims clearly or without difficulty. The only example of misinterpretation the applicant's representative could offer was the one he referred to in his submission. In relation to that particular example, relying on its own language skills and the context of the applicant's evidence, the Tribunal had no difficulty correctly apprehending what was being conveyed by the applicant. Moreover, this particular aspect of the applicant's evidence did not cause concern for the Tribunal and did not form the basis of any adverse findings. The Tribunal is not satisfied that the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving evidence. Nor is it satisfied that interpreting errors have formed the basis of any adverse conclusions drawn by the Tribunal in relation to the applicant's claims. 7 It was certainly incumbent upon the Tribunal, the submission having been made, to address it. And this the Tribunal plainly did in the paragraph just cited. 8 The Tribunal's reasons also reveal that the Tribunal did not discount the credibility of the appellant based on a discrepancy in a particular part of his evidence, the translation of which was controversial. Rather, what the Tribunal stated at [16] of its reasons was this: 16. There were some discrepancies between the applicant's account of his claims at the departmental interview and his oral evidence to the Tribunal. The Tribunal also appreciates that the applicant's oral evidence to the department was at times vague and deficient in details. However, having considered the totality of his claims, the Tribunal is of the view that the variations and deficiencies in the applicant's evidence at different stages are not so significant to fundamentally undermine his credibility. 9 The appellant's claim before the Tribunal failed for the reason that the Tribunal member was not satisfied that he faced a real chance of being harmed for what the Tribunal understandably and un-controversially termed "Convention reason" if he were to return to Lebanon. The Tribunal stated at [24]: 24. On the basis of the evidence before it, the Tribunal is not satisfied that members of Maria's family or anyone else have any interest in perusing or harming the applicant. It follows that the Tribunal is not satisfied that the applicant faces a real chance of serious harm if he were to travel via Sidon to other locations in Lebanon for work purposes. The Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed for a Convention reason, including his religion or membership of any particular social group, if he were to return to Lebanon. [sic] The basis of that absence of satisfaction is detailed by the Tribunal at [20] - [22] of its reasons. It is not necessary to detail those paragraphs for present purposes. Suffice it to say, the Tribunal concluded for reasons which are neither illogical nor irrational, that it was not satisfied of any real chance of harm either by the authorities in Lebanon or anyone else as to any interest in locating or harming him for having committed "an honour crime" before he departed Lebanon. For like reasons, the Tribunal was not satisfied that any complementary protection visa entitlement arose. 10 The learned primary judge noted an absence of any evidence before him of a translation error. That was so. His Honour also disposed of the case insofar it entailed a challenge to the rejection of the appellant's claim to participation to an Islamic temporary marriage on the basis that a claim of such marriage had been accepted, any fear of persecution had been the subject of rejection for reasons given by the Tribunal in an unremarkable way. 11 It may be readily accepted that in the event that there were a comprehensive failure of interpretation in the conduct of a hearing by the Tribunal, such that it could be concluded that a particular applicant had been denied a meaningful hearing, that there would be non-compliance with s 425 of the Act and a jurisdictional error: see Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at [38]; WALN v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]; and SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9]. In each instance, and as Allsop CJ observed in the latter case, there would arise "a question of evaluation as to whether the hearing was fair". 12 That evaluation would have to be conducted by reference to evidence as to the particular translation error or errors. The Tribunal at [23] in the passage quoted makes reference to the Tribunal member's own proficiency in the Arabic language. That provoked a thought on my part as to whether there was potentially present another type of jurisdictional error. As presently advised, it would seem to me that it would be contrary to the requirements of s 425 for a Tribunal member not to disclose knowledge of a subject language to the applicant and, for that matter, the Minister, if that Tribunal member proposed to rely on that personal knowledge for the purposes of determining the review. 13 It may also be that that particular personal knowledge would constitute information would have to be disclosed either pursuant to s 424A or s 424AA of the Act. At common law and in relation to an exercise of judicial power, it has been observed in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at p 292 that: No doubt if the magistrate speaks German he could advise the parties that this is so and put to them a translation of a particular document. If that translation be accepted, that would be the end of the matter; if not, the parties could call evidence to show the proper translation. If the case so proceeds, there will have been due observance of the requisite procedural fairness, but it would be otherwise if a magistrate translated for himself the foreign text without revealing to the parties the process which he had undertaken. 14 This was cited with approval by Heydon J in International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319 at pp 382 - 383 in this way: A court which acts on its understanding of a document in a foreign language without informing the parties commits a breach of the rules of natural justice. [Footnotes omitted] 15 A like breach of the rules of natural justice would, in my view, be committed by a tribunal so acting or acting on the basis of its knowledge so as to translate oral evidence. It would, in my view, resonate either as a breach of s 425 or perhaps ss 424A or 424AA, but it is unnecessary to pursue that subject in this case. That is because in the Tribunal's reasons an inference necessarily arises, in my view, that the Tribunal member disclosed the subject of personal language knowledge and the particular meaning derived by the Tribunal member in the course of the hearing. I base that conclusion on the Tribunal's statement at [8] of its reasons: 8. Following the hearing, on 12 June 2015, the applicant's representative made a submission in relation to the credibility of the applicant's clams and internal relocation. The applicant's representative also expressed concern with the quality of interpreting at the hearing. He stated that he has 'limited Arabic language abilities', but he was able to pick up on one error in interpreting in relation to the word 'week' which in Arabic 'is pronounced the same way as the word Friday'. He stated that the interpreter incorrectly interpreted 'I would see her two weeks in one week' as 'I would see her two times on Friday'. He observed that when he brought this to the Tribunal's attention, the Tribunal had responded that it had understood the applicant's evidence to mean that he had seen the girl twice a week. It was submitted that the Tribunal is not fluent in the Arabic language and could not have made the assumption. He submitted that he was concerned that there might have been other errors in interpreting that neither he nor the Tribunal are aware of and that the Tribunal has drawn 'indirect assumptions unrelated to the actual interpreting'. as well as what is related in the submission to the Tribunal by the appellant's agent in a letter of 12 June 2015. In that letter, the author makes reference to having brought an asserted translation error to the member's attention in the course of the hearing. Inferentially, it appears to me from the submission that the Tribunal responded in the course of the hearing by disclosing personal knowledge of the appellant's language. 16 The point is one which is not taken either in the original jurisdiction or on this appeal. To have raised it at appellate level would have been difficult, because it required for its development an evidentiary foundation. I have made reference to the subject only for completeness and so as to assure the appellant that his case has been fully considered. 17 Another way of disposing of the appeal would have been to record that the appeal to be dismissed for the reasons given by the primary judge in dismissing the judicial review application. However one reads the ground of appeals, they have no merit. This is just one of these cases where, whatever discrepancy in translation there was, it was not material and all that occurred was an absence of satisfaction, accepting a particular claimed marriage, as to a resultant, well-founded fear of persecution. 18 The appeal must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.