NAUV v Minister for Immigration & Multicultural & Indigenous Affairs

Macpherson & Kelley forwarded the application to DIMA on 15 May 2001. 12 In par [26] of the applicant's affidavit of 26 September 2001, he asserts that there is error in question 8. He claims to have told Ms Chau that his first preference was Algerian, not Arabic which is wrong. He says that he does not know whether the interpreter or Ms Chau made the mistake. Nothing is said in the affidavit about question 7. 13 The Minister's delegate who considered the application for a protection visa was Steven Thompson. He interviewed the applicant with the assistance of an Arabic interpreter from Lebanon. It is common ground that this interview was tape recorded, but notwithstanding a proper enquiry no record of the interview can be found. The applicant's affidavit says that this interview occurred on 29 June 2001; a chronology with which I was provided by both parties refers to the interview as having occurred on 1 July 2001. Nothing turns on this discrepancy in dates. 14 In the applicant's affidavit of 26 September 2003 the following appears: '15. When I was interviewed about my protection application by my case officer, Stephen Thomson, on 29 June 2001 in Stage 1, I was given another Arabic interpreter from Lebanon whom I could not understand. It was hard work even communicating and I would have given a lot more detail about why I had to wait for almost 18 months before I escaped from Algeria if I had realised that this would be held against me. Later in July 2003, I did explain these things when Amnesty International asked me. Steven Thompson brought a tape recorder with him and recorded the interview. He also brought in his own computer and typed everything as we went. 16. The interpreter kept asking me to keep repeating what I said because I spoke in Algerian. I said "Why don't you stop the interview because you can't understand me" but the interpreter said "If you talk slower and quieter I will understand you". I tried my best to talk slowly and not get upset but this did not help because the interpreter could not understand me. I asked for a French interpreter many times during the interview. I said "You don't understand me - I'm sure you don't understand me" but they said "No we are ready to do the interview for you now". They would not take any notice and we continued using Arabic though it made no sense. So the interview took a very long time about 3 hours I think, going over and over the same things all the time. 17. I believe the translation difficulties and misunderstandings caused by having an Arabic interpreter for the interview would make it impossible for Steven Thompson to work out much of what I was trying to say. He would have no way of telling whether what I said was accurate or truthful.' 15 The respondent did not seek to cross-examine the applicant upon his affidavits, nor was any evidence in response filed. 16 On 22 July 2001 the applicant and others escaped from the Villawood Detention Centre. The applicant remained at large until he returned to Villawood on 6 February 2003. 17 The applicant's claim that he had a well-founded fear of persecution if returned to Algeria had two substantial foundations. First, his past association with the GIA. Second, he feared imprisonment by the Algerian authorities by reason of his evasion of military service in 1994 because he feared retribution from the GIA if he joined the army. 18 The applicant's affidavit of 3 October 2003 describes the nature of his past association with the GIA. According to the affidavit the applicant was captured by the GIA but refused to participate in the GIA's terrorist activities. According to the statement submitted to the delegate, he was conscripted by the GIA and forced to participate in its terrorist activities. The difference between the two versions is attributed by the applicant to language problems. 19 The differences between the various accounts which the applicant attributes to language difficulties is summarised in the following table: 20 Original Version 14/5/2001 Evidence (French) (Arabic) (French) First abducted First abducted First abducted 1994 1992 1992 Cousin arranged Uncle arranged Cousin arranged Release release release - Forced to engage Refused to engage in terrorist activities in terrorist activities 21 On 24 July 2001 the Minister's delegate refused the application for a protection visa. The delegate considered the claims of the applicant against the background of the situation in Algeria. The claims are apparently those made in the 14 May 2001 statement. From this perspective, the delegate came to the following conclusions: · there was once a risk of forced conscription by the GIA in the way the applicant describes; · the Algerian government has been active in trying to prevent attacks such as those feared by the applicant, and has to a considerable extent been successful; · the likelihood of the applicant being targeted by the GIA in the future is remote; · in the unlikely event that the applicant were targeted by the GIA in the future he would have the protection of the government; · the applicant has the option of relocating to a major city in Algeria where he is far less likely to come to the attention of the more violent factions of the GIA; and · any risk from either the GIA or the Algerian authorities to the applicant or to his family because of the claim of his past association with the GIA would be virtually non-existent now given the time elapsed since he left Algeria. These conclusions are reached on the implicit assumption that the applicant's claims are taken at face value. 22 The delegate made the following finding in relation to the applicant's credit: 'I was not satisfied with the applicant's evidence at interview about his experiences with the authorities and the G.I.A. in Algeria. In particular, his explanation of the discrepancy between his original story that he was first abducted by the G.I.A. on 3 to 4 occasions in 1994 and then again 1995 and his subsequent advice that he was first arrested 1992 and again approximately one and a half months later. Further, during the applicant's initial interview he stated that his cousin arranged his release from the G.I.A. in 1994 after being held for 4 days. Conversely, at his subsequent legal statement the applicant has claimed that it was his uncle who arranged for his release from the G.I.A. in 1994. Despite the applicant's claims at interview that there had been a "misunderstanding" with the interpreting, I was satisfied that the applicant's account of these events was not accurate or truthful. This has implications for my readiness to accept at face value his evidence about other matters.' 23 The delegate found that: · had the GIA been serious in their wish to harm the applicant or his family, they would have done so after his claimed escape in 1994 and prior to his departure for Libya in 1996; and · if the applicant were genuinely in fear of terrorist action against him personally, he would have left Algeria at the time of the claimed threats in 1994, and not two years later. A fair reading of the delegate's reasons indicates that he did not accept the applicant's account of his forced conscription and claimed escape from the GIA, nor did he accept that the applicant was genuinely in fear of persecution by reason of his claimed association with the GIA. 24 So far as the claim based on avoidance of military conscription is concerned, the delegate found that it is highly unlikely that the applicant would be imprisoned for a period of three years for avoiding military service as claimed. It is far more likely that if he is required to undertake any form of military service, that he might be required to serve his 18 months of normal service. The delegate did not consider this to be an unreasonable requirement, nor was it a ground for a persecution claim. Given the applicant's age, it is likely that the applicant would receive an amnesty from the President of Algeria for his avoidance of military service. 25 On 24 July 2001 Macpherson & Kelley lodged an application for review of the delegate's decision with the Refugee Review Tribunal ('the RRT'). On 15 August 2001 Macpherson & Kelley advised the RRT the appeal was lodged in error and should be withdrawn. They advised the RRT that, unbeknown to them, when the appeal was lodged the applicant had escaped from Villawood Detention Centre and did not respond to their written request to authorise the filing of an appeal. Consequently, they were not authorised by him to file the appeal on 24 July 2001, and their action has subsequently not been ratified by the applicant. 26 On 27 August 2001 the RRT decided that it did not have jurisdiction to review the decision refusing to grant to the applicant a protection visa. Both parties now accept that this decision is correct. 27 On 29 October 2003 the applicant lodged an amended application under s 39B of the Judiciary Act 1903 (Cth) seeking relief in relation to the delegate's decision. It is common ground that, even though merits review of the delegate's decision was available in the RRT, there is no statutory bar to the granting of relief in relation to the delegate's decision if the applicant is otherwise entitled to it. 28 The Migration Act 1958 (Cth) ('the Act') does not oblige the delegate to invite an applicant to a hearing. There is no provision corresponding to s 425 of the Act, which obliges the RRT to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Nor is there any provision corresponding to s 427(7) of the Act, which provides that if a person appearing before the RRT to give evidence is 'not proficient in English', the RRT may direct that communication with the person proceed through an interpreter. Presumably the interview between the applicant and Steven Thompson held on or about 29 June 2001 was an 'interview' conducted pursuant to ss 56, 58 and 59 of the Act. 29 The applicant submits that the delegate's decision was vitiated by jurisdictional error as the applicant was denied procedural fairness in the process leading to the decision by the delegate. In the applicant's submission, the standard of interpretation in the interview on 14 May 2001 which led to the statement provided to the Department by the applicant's representative was such that the applicant was denied procedural fairness in the decision-making process. The same submission is put in relation to the interview between the applicant and the delegate on or about 29 June 2001. 30 There is no express statutory obligation imposed on the delegate to provide an interpreter for the purposes of conducting an interview, but s 56(1) of the Act obliges the delegate to have regard to information obtained at an interview in making the decision whether to grant or refuse a visa. It is implicit in the statutory scheme that if an interview is to be held, it will be one at which the applicant and the delegate will be able to understand each other; if necessary with the assistance of an interpreter. It would be unreasonable to expect that it was for the applicant to arrange for the provision of an interpreter. 31 There are authorities in the context of s 425 of the Act which establish that the obligation on the part of the RRT to invite the applicant to a hearing carries with it an obligation to provide adequate interpretation services. The authorities are collected in the decision of the Full Court in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [16] - [18]. Considerations of procedural fairness dictate that a person who has no understanding of English, or an insufficient understanding of English, should be permitted to use an interpreter at a hearing, or at an 'interview': cf Aronson & Dyer, Judicial Review of Administrative Action (2nd Ed) at p 436.7. 32 The delegate must decide, in the first instance, whether an interpreter is called for, and whether a reliable interpretation is being made. But the delegate's opinion on those matters cannot be conclusive: Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at [37]. In the present case, the delegate accepted that an interpreter was called for, as he arranged for a Lebanese Arabic interpreter to be present at the interview. 33 There is nothing in the delegate's reasons for decision which suggests that there was any perception on his part of any difficulties or inadequacies in the translation of what was said at the interview. The delegate does refer to a claimed 'misunderstanding' with the interpreting conducted in relation to the statement prepared on 14 May 2001, but the delegate rejected the applicant's claims in that respect. However, if there was a problem in relation to translation at the interview, the delegate would not necessarily be aware of it. The inference which I draw from the delegate's reasons for decision is that he did not perceive that there was a translation problem at the interview. 34 The applicant called expert evidence which establishes that there are three types of Arabic in common use in the Arab world: · Classical Arabic, which is invariant and is the language in which the Qur'an is written; · Standard literary Arabic, a simplified and modernised version of the classical language, and, today, the language of the printed word, the media, and the educated intelligentsia; and · Dialectical Arabic, the many variants of Arabic spoken by the common populace, often polluted by local words, and frequently with significant syntactical variations from the first two forms. This type of Arabic is referred to as 'darija'. 35 During the colonial period, which ended in Algeria in 1961, and for many years after that, secondary and tertiary education had been dominated by the French language. The Algerian government only made standard literary Arabic obligatory for official public communications since 1998. In the expert's opinion (which I accept) it is likely that an Algerian of the applicant's age would be more comfortable in French rather than Arabic. 36 The applicant left Algeria in 1996. His evidence is that he always used the Algerian language at home, and with his friends, and Algerian was the language he usually used in his business as a fitter and turner. The applicant lived in Libya for four years and nine months. His evidence is that he did not understand the Libyan dialect very well. He said that the Libyan dialect is Arabic mixed with Italian, while Algerian had quite a bit of French mixed in. He says that he only understood 'about 40 per cent of Libyan Arabic'. 37 The interpreters with which the applicant was provided came from Lebanon. The expert evidence is that the differences between the varieties of darija frequently leads to difficulties, confusions and misunderstandings between citizens of different Arab countries. While this is not so great a problem between people from the Arab Middle East, or between North Africans, the difficulty is multiplied many times when it is a question of speakers from North Africa and the Middle East talking darija to each other. 38 As I have said, I accept that the applicant would be more comfortable in French, than in Arabic, but he does have some ability to communicate in Arabic, and in particular Algerian Arabic. Through no-one's fault, I do not have a record of the interview between the applicant and the delegate which exacerbates the difficulty in determining whether and to what extent the interview was beset by problems of interpretation. Contrary to the applicant's submissions, no inference adverse to the Minister can be drawn from the failure to produce a record of this meeting as the parties accept that notwithstanding due search, the record cannot be found. Nor can any inference adverse to the Minister be drawn from the non-production of the notes of the initial interview, as the applicant has not put in issue the statements which the delegate attributes to the applicant on that occasion, and because the claim of public interest immunity was not the subject of challenge. 39 As the applicant was not cross-examined, and as his evidence was not contradicted, I accept his claims that he was hindered or inhibited in giving his account of events in the statement of 14 May 2001, and in the interview with the delegate on or about 29 June 2001 by reason of problems of interpretation. I am not satisfied that there was a total inability to communicate, if only because the 14 May 2001 statement contains some information that is likely to have come from the applicant, and because the applicant got the message across to the delegate at the interview that it was his contention that discrepancies in the 14 May 2001 statement were referable to a 'misunderstanding' with the interpretation. 40 Two factors appear to have affected the delegate's assessment of the applicant's credibility, namely the inconsistent claims as to the date of his first abduction, and whether it was his cousin, or his uncle who arranged his release. The inconsistency in the applicant's account as to when he was first abducted is not referable to a language problem as the correct date is 1992 and the reference to 1994 was at the initial interview which was conducted in French. 41 The delegate does not appear to have treated the applicant's assertion in the 14 May 2001 statement that he was forced by the GIA to engage in terrorist activities as being a matter which was adverse to his credit, or as something which detracted from his claim to be a refugee. It is possible that the inconsistent statements as to the relative who arranged for the applicant's release was a factor which adversely impacted upon the delegate's assessment of the applicant's credit. I therefore proceed upon the basis that it is at least possible that the delegate's assessment of the applicant's credibility was affected by problems in translation. 42 Errors or insufficiencies in interpretation can lead to a denial of natural justice to an applicant. Questions of degree are, or may be, involved which may be difficult to resolve. In principle there can be a denial of natural justice arising in that way even though the decision-maker is unaware of the errors or insufficiencies in question. But if the Court concludes that a denial of natural justice did not affect the outcome, then relief will be refused notwithstanding the departure from the rules: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The question is whether 'practical injustice' has been shown: Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam (2003) 77 ALJR 699 at [37]. 43 The Minister submits that in the present case no practical injustice flowed to the applicant through any deficiencies in the translation process because the delegate came to the conclusion, for reasons which he gave, that even if the applicant's claims were taken at face value, he was not a refugee. The delegate's reasoning process is summarised in [21] above. In the Minister's submission, there is no language based disadvantage accruing to the applicant in relation to those findings, which were substantially derived from 'country' information, rather than from an assessment of the credibility of the applicant's evidence. 44 The applicant, however, contends that his language based inability to convey to the delegate that he was tortured by the GIA for refusing to take part in the GIA's terrorist activities as opposed to being a person who was forced by the GIA to engage in those activities is a material matter such that there was a denial of natural justice to the applicant, notwithstanding the 'country' information on which the delegate relied. 45 During the course of argument, I indicated to the applicant's counsel a degree of scepticism on my part in relation to the applicant's evidence that an error of this nature could arise as a result of translation difficulties. However, the applicant has sworn that had he realised that the 14 May 2001 statement referred to his participation in terrorist activities he would have refused to sign it. I do not think that I am obliged to accept all that a witness says, even though the witness is not cross-examined on his testimony, but something more concrete than mere scepticism is required before I should decline to accept the applicant's sworn evidence in this respect, particularly in the absence of any evidence from the delegate, or explanation for its absence. Accordingly, I accept that the applicant suffered from the language based inability to convey to the delegate that he was tortured by the GIA for failing to take part in the GIA's terrorist activities. 46 Does this make any difference? The delegate uses 'country' information in order to derive a negative answer to the question whether there is a real chance that the applicant will be exposed to persecution by reason of his past association with the GIA. That necessarily involves a consideration of what that association was. The delegate proceeds upon the basis that the association was one of forced conscription of the applicant to participation in terrorist activities - others having been conscripted by the GIA in that way at that time. 47 That was not the case which the applicant was seeking to put. His case was that, unlike the others, he did not succumb to the GIA's pressure, but resisted it. It is possible, I suppose, that by reason of that resistance, the applicant might be regarded by the GIA with more personal animosity than others who succumbed to the GIA's wishes. I do not know. By reason of the translation problems to which I have referred the delegate did not consider this possibility. I do not think that I can conclude that the delegate would have necessarily reached the same conclusion as he did had he commenced from the premise that the applicant's relationship with the GIA was as the applicant claimed, assuming of course that the delegate accepted the claim. He may or may not have reached the same conclusion. 48 Accordingly, I reject the Minister's submission that the denial of natural justice constituted by the inadequacy of the translation services could not have affected the outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4], [56] - [60], [79] - [81], [104], [132], [211]; Gibson v Repatriation Commission [2000] FCA 739. 49 Under the Act, merits review of the delegate's decision is available by a specialist tribunal (the RRT). Ordinarily, where de novo review on the merits is available which will resolve fully and directly any complaint which would be dealt with in judicial review, it should first be exhausted. Save in exceptional circumstances, prerogative relief will be withheld on discretionary grounds where other suitable remedies are available and have not been used: Boral Gas (NSW)Pty Ltd v Magill (1993) 32 NSWLR 501 at 508-512; NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 487 at [28]. The discretion to grant prerogative relief may nevertheless be exercised where there is an error going to jurisdiction that is patent, and not based on any contested or contestable facts: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [13]. 50 In Re Refugee Tribunal; Ex parte Aala (supra) the High Court affirmed that the issue of constitutional writs under s 75(v) of the Constitution is discretionary, although the discretion is not to be exercised lightly against the grant of a final remedy, particularly where the officers in question do not constitute a federal court. If a clear case of want or excess of jurisdiction has been made out, and the prosecutor is the party aggrieved the writ will issue almost as of right, although the Court retains its discretion to refuse relief if in all the circumstances that seems the proper course. 51 At [50] Gaudron and Gummow JJ said: '... prohibition may be refused by this Court where the administrative structure incorporates provision for an internal "appeal" and, whilst there was a denial of procedural fairness at the first stage, an appeal was taken and there was a full and fair hearing on that appeal. The judgment of Mason J in R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation (1981) 147 CLR 471 is authority that, in such a case, prohibition to the first decision-maker may be refused on the footing that any denial of natural justice at that level has become irrelevant. For that conclusion Mason J cited in support the decision of the Privy Council in Calvin v Carr [1980] AC 574.' At [53] their Honours said that delay, waiver, acquiescence or other conduct of the prosecutor in the course of the administrative proceeding may be relevant to the exercise of the discretion. 52 The Act provides for a full review of the delegate's decision on the merits before the RRT. Before the RRT, the applicant's lack of proficiency in the English language would have led to the appointment of an interpreter. Any errors or misunderstandings arising from language difficulties which may have impacted on the preparation of the 14 May 2001 statement, or in the interview with the delegate could have been identified, and to the extent necessary, explored. In Aala at [56], Gaudron and Gummow JJ quoted with approval the following passage from the judgment of the Court in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400: 'For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.' 53 The right of review by the RRT for which the Act provides is a far more convenient and satisfactory remedy than that which the applicant now seeks to invoke. It is beside the point that the applicant is now out of time to seek that remedy, as this is due to his own conduct in absconding. Some two years have elapsed between the applicant's escape, and the institution of these proceedings on 7 August 2003; a delay which must necessarily impede the proper investigation of language difficulties which the applicant has sworn that he experienced in May and June 2001. The claim to a remedy is based upon contestable facts albeit that no evidence was adduced in opposition to the applicant's claim. Questions of degree are involved. 54 There is no satisfactory explanation for the applicant not pursuing the course of merits review before the RRT. Had he sought judicial intervention before pursuing that remedy, it would have been refused on discretionary grounds. By escaping from detention, and remaining at large for as long as he did, the applicant has effectively waived any complaint he might otherwise have had in relation to the procedures adopted by the delegate. By his conduct the applicant decided to put himself outside the law. Having done so, and for so long, he cannot now claim the law's protection. Relief should be refused on discretionary grounds. 55 The application is dismissed with costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Applicant: Mr S Prince (appearing pro bono)

Solicitor for the Applicant: Stephen Blanks & Associates

Solicitor for the Respondent: Australian Government Solicitor