CJB16 v Minister for Immigration, Citizenship, Migrant Services and... [2023] FCA 44 | Case summary

Federal Court of Australia|2023-02-03|Before: Mr J, Burley J

The application for leave to rely on the draft further amended notice of appeal be refused.
The appeal be dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 THE APPLICATION FOR LEAVE [7] 2.1 The appellant's contentions [7] 2.2 The decision of the IAA [10] 2.3 The interpretation issue [16] 3 CONSIDERATION [20]

INTRODUCTION 1 The appellant is a male citizen of Sri Lanka of Tamil ethnicity and Roman Catholic religion who arrived in Australia on 25 September 2012 at the age of 26 years old as an irregular maritime arrival, and applied for a Safe Haven Enterprise visa (protection visa) in September 2015. On 15 June 2016, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused to grant the appellant a protection visa. 2 On 16 June 2016, the matter was referred to the Immigration Assessment Authority (IAA) for review. On 29 July 2016, the IAA affirmed the delegate's decision. The appellant then applied for judicial review of the decision of the IAA by the Federal Circuit Court of Australia (FCCA). On 16 April 2020, a judge of that Court dismissed the application: CJB16 v Minister for Immigration & Anor [2020] FCCA 845. The present proceedings are constituted as an appeal from that decision. 3 The appellant is represented by Daniel Taylor, solicitor, who has been responsible for the conduct of the appeal. The Minister is represented by Mr Kay Hoyle of senior counsel. 4 The proceedings in this Court have an unfortunate history. On 14 May 2020, the appellant filed a notice of appeal relying on two grounds, neither of which was argued before the primary judge. On 18 October 2021, an amended notice of appeal was filed, replacing one ground with another that also had not been advanced before the primary judge. In January 2022, the appellant filed an affidavit affirmed by Mr Taylor annexing a partial transcript of the appellant's protection visa interview of 29 March 2016. The relevance of the affidavit was obscure, because it had no bearing on the grounds advanced by the appellant at that stage. Subsequently, further affidavits from Mr Taylor, the appellant and Mr Vethanayagam, an interpreter, were filed. On 14 April 2022, Mr Taylor annexed to an affidavit a further draft amended notice of appeal (amended draft appeal). That version wholly abandoned the grounds advanced in the earlier drafts and replaced them with the following single ground, also not advanced below, which contended that the primary judge erred in failing to find that the decision of the IAA was affected by jurisdictional error (particulars omitted): …because the finding of the Authority [at 8] that "… I find that he stayed in Nelliyadi until he departed for Australia in September 2012" was affected by real and material interpreting errors of substance, which had a material adverse impact on credibility and the ultimate decision on review. 5 The appeal was initially listed for hearing on 4 May 2022. The appellant then sought leave to rely on the amended draft appeal and leave to adduce fresh evidence on appeal in the form of affidavits from Mr Vethanayagam, the appellant and Mr Taylor, none of which had been in evidence before the IAA or the primary judge. The Minister opposed the grant of leave. He also opposed the tender of the partial transcript and the further evidence of the appellant. It proved to be necessary to adjourn the hearing so that a full transcript of the interview could be provided, and the Minister given an opportunity to file submissions in response to the recalibrated application brought by the appellant. The proceedings were adjourned for hearing until October 2022. The appellant agreed to pay the Minister's costs of the adjournment. 6 Subsequently, the parties filed further submissions prior to the hearing.

2.1 The appellant's contentions 7 In the particulars appended to the amended draft appeal, the appellant contends that in the course of the interview the interpreter misinterpreted a question "what was your most recent address in Sri Lanka" by asking "what was the address of the last house, the place you stayed in Sri Lanka?" He contends that the sense of the question as interpreted was directed to whether the appellant slept at his address in Point Pedro rather than whether he slept there immediately prior to departing from Sri Lanka, and that his answer of "sleeping at the house" was not intended to indicate contemporaneity with the period "until coming from Sri Lanka". The particulars contend that at [9] of its decision the IAA found that there had been a discrepancy that had been material to its review. 8 The appellant submits that a finding by the IAA that the appellant had given inconsistent evidence in his interview about where he was staying immediately prior to departing Sri Lanka was a result of the alleged mistranslation. He submits that, properly understood, the appellant's evidence was that he was in Colombo immediately prior to his departure, and not in Nelliyadi, Jaffna. He submits that the case officer asked him what was the last place he stayed prior to his departure, but the interpreter merely asked him "what is your home address?". 9 The appellant submits that the merits of the amended draft appeal are such that the application for leave to amend to advance a ground not previously raised and to adduce further evidence should be allowed. In this regard he submits that it is central that the appellant did not give inconsistent evidence, but rather there were interpreting errors which led to that conclusion.

2.2 The decision of the IAA 10 The appellant's claims for protection as set out in the decision of the IAA record that he claimed to be a Tamil Roman Catholic born in Nelliyadi, Jaffna District, in Sri Lanka. In 1999 a member of the Liberation Tigers of Tamil Eelam (LTTE) informed the Sri Lankan army (SLA) that the appellant's father was providing assistance to LTTE members and the appellant's family was subsequently detained. The appellant and his siblings were released because of their young age. His father, however, was detained for several months, beaten and tortured by the SLA on suspicion of LTTE support and subsequently harassed upon his release. The appellant left Sri Lanka for Qatar in December 2004, when he was about 18 years of age, until his return for a visit in May 2010. He later returned to Qatar in August 2010 where he remained until March 2012 when he returned to Sri Lanka. When the appellant returned from Qatar in 2010, he claimed that the SLA visited his family and wanted to know who he was. His father told them he was his son and, fearing that the SLA would intensify their monitoring and that the SLA would target his son, his father advised him to cut short his visit and return to Qatar, which he did. After he left, the SLA interrogated his father. 11 In March 2012, the appellant returned to Sri Lanka, but feared kidnapping and so did not stay home at night. His father worried that he might be kidnapped by the army or its associated groups and advised him to leave Sri Lanka permanently. He decided to come to Australia. The appellant's father passed away in 2013. He fears harm from the SLA and the Criminal Investigation Department (CID) and associated groups due to being an imputed supporter of the LTTE and because he left Sri Lanka illegally and would be returning as a failed asylum seeker. 12 The IAA accepted that the appellant's father was detained and abused in 1999 and that he had been subject to ongoing monitoring and a degree of harassment from the authorities, even after the war. It also accepted that his father held serious concerns that the appellant would face the same treatment and encouraged him to leave Sri Lanka, and also that the appellant holds a genuine subjective fear, influenced by his father, that his claims are credible "with one exception". 13 Most relevantly to the amended draft appeal, the IAA said: 8 The applicant has provided inconsistent evidence on his movements in Sri Lanka between March 2012, when he returned from Qatar, and September 2012 when he departed for Australia. In his Arrival interview, Entry interview and written application the applicant stated that after returning from Qatar in 2012, he resided in Nelliyadi, Jaffna from March to July and then resided in Colombo until he departed for Australia in September. However in his SHEV interview, he provided inconsistent responses about whether he was residing at his Nelliyadi home or in Colombo before he departed for Australia. Having reviewed the totality of the evidence before me, I find that after the applicant returned from Qatar in March 2012, he resided in his Nelliyadi home until July 2012, then resided for several weeks in Colombo before returning to Nelliyadi in late August. I find he stayed in Nelliyadi until he departed for Australia in September 2012. 9 There were some other inconsistencies in the applicant's evidence (eg. the length of his father's detention in 1999), however having considered the totality of the evidence before me I am satisfied that apart from the above mentioned discrepancy I am satisfied they were either immaterial or were clarified throughout the protection process. 14 The IAA made the following relevant findings in relation to the authorities' interest in the appellant: (1) That he made two return journeys to Sri Lanka during which he provided his genuine passport with his name. He does not claim to have ever been stopped or questioned of facing any problems upon departure on these occasions; (2) That upon his return to his family in 2010, he was of interest to the authorities as a returning member of the Tamil diaspora in the aftermath of the war. He was questioned, but never taken away for further questioning or interrogation and was not otherwise harmed. He was able to depart the country. He was not of adverse interest to the authorities at that time; (3) That the appellant and his father informed the authorities that he was visiting home in 2012 for six months and when he departed after only a couple of months the authorities questioned his father about his early departure. However, the fact that the appellant was not questioned at any time after returning to Sri Lanka in 2012 and was never detained, arrested or taken to a rehabilitation camp indicates that he was not then of interest to the authorities on the basis of any LTTE links. (4) That while his father was subject to ongoing monitoring, the appellant spent "a significant period in Nelliyadi in the Northern Province in the lead up to his departure in 2012 and he does not claim that he was monitored, or was subject to any reporting conditions, questioned or harmed …"; (5) That while in Nelliyadi in 2010 and 2012 he held a subjective fear of being kidnapped and that this fear was instilled in him through his father's experiences. During this time the appellant slept in different places at night and that, apart from when he was in Colombo, he remained in the local area and was making arrangements to start up a business. Even so, he was moving around in the daytime without incident and any authorities seeking to do so could have found him; (6) That the applicant was not at risk of being kidnapped by the authorities or any other groups. The IAA did not consider that he would have been targeted by authorities if he stayed longer in Sri Lanka, including in his home area, or if he stayed at his home at night. 15 These matters led the IAA to the conclusion that the appellant's claim to have been of adverse interest to the authorities was not made out. The IAA explicitly rejected the contention that the appellant faces a real chance of being kidnapped by authorities or others "on the basis of DFAT assessments since the end of the war". It expressed further satisfaction that the appellant was not perceived as being an LTTE member himself and repeated its finding that he was not of adverse interest to the authorities. It also concluded that he was not likely to receive adverse treatment of the type that would constitute significant harm, as defined under s 36(2A) and s 5 of the Migration Act 1958 (Cth), if apprehended upon his return from Australia as a failed asylum seeker.

2.3 The interpretation issue 16 I permitted the appellant to tender the transcript of the interview in support of his application for leave to rely on the draft amended appeal and his separate application for leave to adduce further evidence on appeal should leave to appeal be granted. 17 The finding challenged in the present application is at [8] of the decision of the IAA, where it said "Having reviewed the totality of the evidence before me, I find that after the applicant returned from Qatar in March 2012, he resided in his Nelliyadi home until July 2012, then resided for several weeks in Colombo before returning to Nelliyadi in late August. I find he stayed in Nelliyadi until he departed for Australia in September 2012". The appellant submits that the evidence that he gave was that he never returned to Nelliyadi in late August 2012. 18 Mr Chelliah is a paralegal who works for Mr Taylor. He annexed to his affidavit a transcript that he had prepared of the words spoken in English during the audio recording of the interview. The transcript that he took is below set out in the left column, for comparison with an extract from the affidavit of Mr Vethanayagam, who is a certified translator. Mr Vethanayagam gives evidence that he prepared a "transliteration" of an extract of the interview prepared from the audio file of the interview. His evidence is set out in the right hand column (with a square bracketed letter [P] inserted when referring to street addresses to maintain confidentiality of the appellant's identity). Chelliah affidavit Vethanayagam affidavit 263 Case officer: What was your most recent address in Sri Lanka? [00:28:39] 00:15 Case officer: What was your most recent address in Sri Lanka? 00:19 Interpreter: What was the address of the last house… the place you stayed in Sri Lanka? 264 Interpreter: [P] Road, Nelliady. The place where I lived before coming here? 00:23 Application [sic]: [P] Road Nelliady. 00:26 Interpreter: [P] Road Nelliady 00:27 Applicant: (Overlap) [P] road Nelliady 00:35 Applicant: Stayed before I came here? 00:36 Interpreter: Place where I lived before coming here? 265 Case officer: Yes. 00:40 Case officer: Yes. 00:40 Interpreter: Yes 266 Interpreter: That's a new address, interior, inside Nelliady, we rented a house. No, no, it's our own house. 00:42 Applicant: Mmm… little inside in Nelliady… (inaudible)… address… we had rented a house and stayed… 00:46 Interpreter: That's a new address. Interior… Inside Nelliady… rented a house 00:50 Applicant: (Overlap) Nelliady 00:52 Applicant: (Overlap) No… Sorry… own house… 00:54 Interpreter: No… No… It's our own house… 268 Case officer: On [P] Rd? 01:00 Case officer: On [P] Road? 01:02 Applicant: Yeah… [P] Road. 269 Interpreter: [P] Rd. 01:03 Interpreter: It's on [P] Road? 01:04 Applicant: Yes. [P] Road. 270 Case officer: And how long were you at that address for? 01:06 Case officer: And how long were you at that address for? 01:08 Interpreter: How long were you at that address for? 271 Interpreter: The new address? 01:11 Applicant: Is it in the new one? 01:12 Interpreter: In the new address? 01:13 Applicant: (Overlap) one 272 Case officer: Yes. 01:13 Case officer: Yes 273 Interpreter: Around one month. 01:16 Applicant: One month (In English) 01:17 Interpreter: Around one month 274 Case officer: Did you sleep at that address up until your departure from Sri Lanka? 01:25 Case officer: Did you sleep at that address up until your departure from Sri Lanka? 01:30 Interpreter: Until coming from Sri Lanka did you sleep there? Did you sleep? (In English) Did you sleep there? Did you sleep* there? (* synonym) 275 Interpreter: Yes, yes at home, yes. 01:37 Applicant: Being at the house? … yeah 01:39 Interpreter: Yes. At home. At home yes. 276 Case officer: What was the address before you went there? 01:42 Case officer: What was the address before you went there? 01:47 Interpreter: What was the address stayed before you went there? 277 Interpreter: Are you asking this question in 2012 or in 2004? 01:50 Applicant: Ehm… This is how it is… we… in 2012 is it? Or in 2004? 02:00 Interpreter: Are you asking this question in 2012 or 2004? 278 Case officer: You said that you were at the address on [P] Rd. for one month, so where 02:05 Case officer: You said you ah… were at the address… um… on [P] Road for one month 279 were you before that? 280 Interpreter: Before that I was in Qatar. Before coming here for one month, I was in Colombo at Maradane.

19 Finding coherence in Mr Taylor's submissions was challenging. It would appear that the appellant contends that, by looking at lines 274 to 277 of the Chelliah transcription and comparing that with the evidence of Mr Vethanayagam, one can see that the question asked by the case officer in English is translated differently. He submits that the answer given by the appellant cannot be used as a basis for the finding of the IAA that, in spite of the claimed fear of kidnapping in Jaffna, the appellant returned there and departed from Jaffna. He submits that there is no evidence upon which to make a credit finding adverse to the appellant.

CONSIDERATION 20 It is convenient first to consider the application for leave to appeal on a ground not raised before the primary judge. 21 The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (Kiefel, Wineburg and Stone JJ), as follows: [46] … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38]. [47] In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 22 The correct approach to the evaluation of the prospects of success of a ground proposed to be advanced on appeal for the first time is to consider the proposed ground of appeal at a reasonably impressionistic level, and enquire whether it is "sufficiently arguable" or has "reasonable prospects of success": see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63] (Mortimer J). Care, however, should be taken not to over-categorise or over-conceptualise matters which inform and affect the interests of the administration of justice: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; 169 ALD 579 at [136] (Allsop CJ). 23 In my view, the application for leave to advance this ground of appeal should be refused because, for a number of reasons, it is not in the interests of justice to permit it to be advanced. 24 The merits of the ground are poor and not such that it is in the interests of justice to permit them to proceed. 25 The purported mistranslation concerned whether the appellant slept at a particular address prior to his departure. In both versions, the appellant answered in the affirmative. 26 The basis upon which an error of translation may be taken into account in the context of judicial review of a decision of the IAA was considered recently in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 388 ALR 389 at [4]-[23] (Kiefel CJ, Gageler, Gordon and Steward JJ). Two limited circumstances in which a misinterpretation during the course of a protection interview may give rise to jurisdictional error were identified. The first arises from the condition of reasonableness implied into the procedural duty of the IAA to review the referred decision. The conditions for the consideration of new information under s 473DD(b)(ii) of the Migration Act may be met if the IAA is satisfied, relevantly, that there is credible information about the referred applicant not previously known to the Minister, which may have affected consideration of the claims had the new information been known to the Minister, and "exceptional circumstances" justify its consideration: s 473DD(a); DVO16 at [19]. That is not the case advanced. The second, which is apposite in the present circumstances, arises if there may be non-compliance with the overriding duty of the IAA to conduct a de novo "review" of the referred decision pursuant to s 473CC of the Migration Act. As the majority said at [23]: Just as mistranslation of words spoken during a protection interview has the potential to result in the delegate failing to understand and therefore to consider the substance of a claim in fact raised by the applicant in his or her own language, so the same mistranslation has the potential to result in the Authority failing to understand and therefore to consider the substance of the same claim. Mistranslation in that way has the potential to result in the Authority failing to discharge the core element of its overriding duty, namely to assess the claims to protection in fact made by the applicant against the criteria for the grant of the visa in determining for itself whether or not it is satisfied that the criteria for the grant of a visa have been met. 27 The IAA records at [8] that in his arrival interview, entry interview and written application the appellant said that after returning from Qatar in 2012, he resided in Jaffna from March to July and then resided in Colombo until he departed for Australia in September 2012. That finding is supported by the documents identified. In the part of the translation to which the appellant draws attention, according to the Vethanayagam affidavit, the interpreter translates (1) the question "Did you sleep at that address up until your departure from Sri Lanka?" as "Until coming from Sri Lanka, did you sleep there?", then next (2) the appellant asks for clarification by asking "Being at the house?..... yeah" which the interpreter translates as "Yes. At home. At home yes." 28 It is difficult to see any material mistranslation in this exchange. There appears to be no substantive difference or distortion from the meaning of the question in English as set out in (1). Nor can there be any substantive criticism of the interpretation of the answer given, after the rhetorical question "Being at the house?" in (2). It may be that the appellant subsequently became confused about the evidence that he was giving, particularly in answers to questions about the address and ownership of the place where he stayed, but that cannot be said, on the basis of the materials relied upon by the appellant, to be based on the manner in which the interpretation took place. 29 Nor can it be said that the alleged mistranslation had any real significance in terms of the effect of it upon the review conducted by the IAA. In this regard, the fundamental claim made by the appellant was that he feared that he would be of adverse interest to the authorities upon his return to Sri Lanka. That claim was rejected on the basis that, although it was accepted that the appellant had a subjective fear of harm, this was not supported by the objective evidence because the country and other information available to the IAA led it to conclude that he was not and would not be a person of interest. In this regard, the IAA found that he had not been questioned or prevented from moving around freely when he visited Sri Lanka, he had not been detained at the airport upon arrival and departure, despite using his passport and his own name, and the country information available did not indicate that persons of his profile were of interest. 30 Finally, it is not apparent how the alleged mistranslation, if found, could have been material within MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Even assuming that the IAA incorrectly understood the evidence of the appellant insofar as it concluded at [8] that he was staying in Nelliyadi, Jaffna, until he departed for Australia in September 2012, the appellant has not demonstrated that the location of his point of departure for Australia had any material bearing on the conclusions of the IAA in relation to his substantive claims. 31 Furthermore, there is little to commend the manner in which the appellant's case was advanced which would indicate that leave to rely on the new ground of appeal should be granted. It is apparent that his legal representatives had in their possession all of the materials necessary to evaluate the proposed ground of appeal well before it was put forward, in the days before the appeal was listed for hearing. I am not satisfied that there has been a proper explanation for the delay. 32 In the circumstances leave to appeal on the only proposed ground now advanced must be refused, the appeal must be dismissed and the appellant must pay the first respondent's costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

Migration Act 1958(Cth)ss 5, 36(2A), 437CC, 437DD

CJB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (11)

Cited By (1)