SZNMT v Minister for Immigration & Citizenship

The notice of appeal 25 The notice of appeal filed in this Court contained four grounds of appeal. Again, these grounds were overlapping and repetitive. There was an allegation of "numerous errors of law", and the failure to exercise proper procedure, on the part of the Tribunal. The appellant alleged that the federal magistrate had "ignored some legal issues which were not clearly explained" in his Honour's judgment. He alleged denial of natural justice by the federal magistrate and that there was "no reason to make decision in favor [sic] of the respondent." The appellant alleged a denial of procedural fairness and a failure to act in accordance with the provisions of the Convention. He also alleged actual or apprehended bias, as well as repeating the allegation of denial of procedural fairness. 26 Although these grounds were not the subject of any particulars, the appellant expanded upon them in his written outline of submissions and his further written submissions, as well as in oral argument through an interpreter on the hearing of the appeal. The points raised can be dealt with under the following headings.

The use of the interpreter 27 Section 427(7) of the Migration Act provides: If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter. 28 The use of the word "may" in this provision is apt to confer on the Tribunal a discretion, rather than an obligation. See s 33(2A) of the Acts Interpretation Act 1901 (Cth). The appellant's argument that the Tribunal was obliged or required to compel him to use the interpreter during its hearing cannot be sustained. A decision-maker's exercise of a discretion, or failure to exercise a discretion in a particular way, may be set aside by a court with powers of judicial review, but only in certain circumstances. The principles upon which an appeal court can overturn the exercise of a discretion by a court are set out in the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 29 The powers of a court reviewing the exercise of a discretion by an administrative decision-maker are even more limited. The Court cannot decide that the decision-maker has mistaken the facts. It may be that the exercise of an administrative discretion can be set aside by a court on the basis that the decision is so unreasonable that no reasonable decision-maker exercising the relevant power could have made it. Short of errors of law or principle, or manifest unreasonableness, the decision-maker's exercise of a discretion must stand. The Court cannot substitute its own view of how the discretion should have been exercised. 30 When the Tribunal has exercised the discretion in favour of directing that evidence be given through an interpreter, jurisdictional error may occur because of the lack of competence of the interpreter chosen. This is because the applicant before the Tribunal is deprived of the opportunity to give evidence and present arguments to the Tribunal at its hearing. The Tribunal's obligation pursuant to s 425 of the Migration Act to invite an applicant to a hearing at which the applicant can give evidence and present arguments is not complied with if, having issued the invitation, the Tribunal does not provide a hearing that makes the invitation a reality. See M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [34]-[39] and the cases there cited. 31 In the present case, the Tribunal made available an interpreter. That interpreter was present throughout the hearing. For significant parts of the hearing, the appellant elected to rely on the Tribunal member's English questions and to give his answers in English. On a number of occasions, the appellant departed from this practice and relied on the interpreter to translate the Tribunal member's questions, and gave his answers through the interpreter. By this means, the Tribunal member was obviously aware that the appellant felt that he could use the interpreter when he needed to do so. There is nothing to suggest that the Tribunal member ought to have taken the view that the appellant was struggling to understand questions expressed in English, or to give responsive and coherent answers to those questions in English. There is nothing to show that the Tribunal's failure to exercise the discretion, conferred by s 427(7) of the Migration Act, to direct that communication with the appellant proceed through the interpreter was the result of any error, much less any jurisdictional error. 32 To the contrary, the transcript of the Tribunal hearing discloses that the appellant coped well with the use of English, while feeling free to avail himself of the interpreter if he wished. Further, there were several occasions on which the interpreter intervened to assist the appellant when there may have been doubt about the appellant's understanding of a particular question or his ability to give a coherent answer in English. In this way, the Tribunal member was no doubt led to believe that the hearing was being conducted in an appropriate way, so that a direction pursuant to s 427(7) of the Migration Act was not necessary. The transcript of the hearing does not support any suggestion that the appellant was afraid to admit any difficulty in coping with using the English language. He was clearly in control of the occasions on which he was prepared to answer in English and the occasions on which he wished to rely on the interpreter. No error has been demonstrated in relation to the Tribunal's failure to give a direction pursuant to s 427(7) of the Migration Act. 33 The appellant made no complaint as to the inadequacy of the interpreter's understanding of either Bengali or English, or as to the accuracy of the interpreter's rendition of the Tribunal's questions into Bengali and the appellant's answers into English on the occasions when the interpreter was used. 34 In the course of the evidence of Dr Brown, quite early in the Tribunal's hearing because Dr Brown wished to be released from attendance, it appears from the transcript that the interpreter may have been having difficulty keeping pace with the evidence, which was in the form of a monologue. The Tribunal member interrupted and the following exchange occurred: THE TRIBUNAL MEMBER: Okay. I need to stop you just there for a second. Are you following all of this, Mr [name of appellant]? Are you able to follow? THE APPELLANT: Yeah. THE TRIBUNAL MEMBER: All right, in that case, you get a rest, Mr Interpreter. THE INTERPRETER: No, no, no. I can - - - THE TRIBUNAL MEMBER: Yes. No, no, in that case you don't need to be - - - REV. BROWN: He doesn't have to - - - THE TRIBUNAL MEMBER: - - - able to whisper, Interpreter, or sequential interpretation. You can have a rest while - - - THE INTERPRETER: Okay. THE TRIBUNAL MEMBER: Reverend Brown and I are speaking. 35 The appellant attempted to characterise this exchange as the Tribunal assuming that the appellant had proficiency in English and deciding to dispense with the interpreter's services, without asking the appellant. He complained in his written submissions that he misunderstood the word "follow", thinking he was being asked whether he had the same faith as Dr Brown, rather than that he was being asked whether he understood what was being said. He also said that he was partly or completely unaware of what was being said by his witness. The appellant claimed that this was a contravention of s 427(7) of the Migration Act (although the person assisting him with his written submissions referred to s 366C(3) of the Migration Act, the provision equivalent to s 427(7) but in respect of the Migration Review Tribunal). 36 The appellant submitted that a reading of the transcript made it clear that his English was not sufficient to communicate with the Tribunal and that he struggled without the assistance of the interpreter. He referred to a passage in which he gave evidence that a named person was his partner in a business. The Tribunal member then asked "And who is the owner of the flats and of the business?" the appellant answered that the named person was. In his written submissions, the appellant said that this was an incorrect answer, as the building owner was another person. He claimed that similar confusion occurred throughout the hearing when the interpreter was not used. The appellant claimed that the Tribunal did not have power to assess his English proficiency and could not make a decision to dispense with the interpreter. He referred to an exchange early in the hearing, when the Tribunal member referred to the interpreter and asked whether the appellant was having any difficulty understanding the interpreter. The appellant replied to this question directly, in English, saying "No." The following exchange then occurred: THE TRIBUNAL MEMBER: That's fine, so you understand my questions in English? THE APPELLANT: Yes. THE TRIBUNAL MEMBER: But the interpreter's fine? THE APPELLANT: Yes. THE TRIBUNAL MEMBER: All right. If you think we're having any communication problems, whether through the interpreter or you think that we're not understanding each other's comments, it's important that you alert me to those immediately. 37 The appellant said that he was under stress and pressure and that cultural, social and religious issues could be misunderstood by reason of communication breakdown. He referred to an exchange in which the Tribunal asked him about joining the BNP when he went to school. The appellant corrected the Tribunal member by saying it was "College not school." He then responded to a question from the Tribunal member about one incident in which he had been threatened by a BNP leader who wanted an actor's job in a play. The Tribunal member then asked "Were there any serious incidents that happened while you were at the College apart from that?" The appellant gave a lengthy answer about matters that had occurred when he was working at the Notre Dame College. The appellant characterised this exchange as involving a misunderstanding. He said he thought that the Tribunal was asking him about his employment at the Notre Dame College and not about his time as a student and his political involvement during that time. He contended that the Tribunal must have understood that he had switched to a different episode of his life. Despite this, the Tribunal did not request the interpreter, who was having a rest, to take part in the conversation and help the appellant. 38 It is by no means clear from the exchange referred to in [34] that the appellant did misunderstand the word "follow". The question "Are you able to follow?" followed immediately the question "Are you following all of this...?" The appellant has not provided any material by way of affidavit that would support the allegation of fact that he was confused about the meaning of the word "follow". In the context in which the question using that word occurred, it is unlikely that he was confused. He has not provided affidavit material to the effect that he failed to understand the evidence of Dr Brown, or any evidence of any way in which his ability to give evidence and present arguments to the Tribunal was affected by any failure to understand anything that Dr Brown said. 39 It was clear that the Tribunal member was not giving the interpreter a rest throughout the entire hearing. The Tribunal member only indicated to the interpreter that he could have a rest while Dr Brown was giving his evidence. The Tribunal did not dispense with the services of the interpreter for the appellant's evidence. The Tribunal member did not tell the interpreter that he need not interpret for the appellant, and did not tell the appellant that he did not need an interpreter. The non-use of the interpreter arose from the appellant's own willingness to respond to questions in English, without interpretation of the questions. He certainly did not give the impression that he was struggling when he did so. As I have said, when he did appear to be having difficulty, the interpreter was willing to intervene and did so. 40 Contrary to the appellant's submission, s 427(7) of the Migration Act does give to the Tribunal a power to assess an applicant's proficiency in English. The occasion for exercising the discretion to direct that communication with an applicant proceed through an interpreter arises only if that applicant is not proficient in English. The only person who can assess such proficiency is the member constituting the Tribunal. 41 The appellant did not make clear, by affidavit evidence or otherwise, that his case suffered from any inaccuracy in his evidence about the ownership of the building in which the business was conducted. As to the exchange set out in [37], it is clear that the appellant was answering the Tribunal member's question about an incident in which he had been threatened by a BNP leader while he was a student. The fact that the appellant then went on to talk about what had occurred while he was employed at Notre Dame College does not support the argument that he was confused in the exchange. He did not refer to any cultural, social or religious issue on which he had given evidence in English that was inaccurate. He gave no evidence about how any stress or pressure from being involved in the Tribunal hearing affected his use of English. 42 Contrary to the appellant's submission, the Tribunal does not have an absolute obligation to ensure that an applicant whose first language is not English suffers no disadvantage at all for that reason. Some disadvantage is inevitable when an applicant has no English or a command of English that is less than fluent. The Tribunal's obligation is to afford procedural fairness. This involves doing what is reasonable to alleviate the disadvantage. The Tribunal's obligation includes exercising the discretion conferred on it by s 427(7) of the Migration Act when it sees that there is confusion or misunderstanding in communication. The present case was not one in which such confusion or misunderstanding appeared to the Tribunal. The appellant opted to use English when it suited him, and to use the interpreter when he wished to do so. The interpreter remained available and intervened to assist the appellant when he thought the appellant was having any difficulty. No disadvantage to the appellant from conducting the hearing this way has been demonstrated. The appellant has failed to show that the Tribunal did not comply with any statutory or other obligation in relation to the use of the interpreter. He has failed to show that the way in which the hearing was conducted, with respect to the use of the interpreter, gave rise to any denial of procedural fairness or provided any indication of bias on the part of the Tribunal member. The federal magistrate was correct to reject any challenge by the appellant to the Tribunal's exercise of its powers, based on the way in which the interpreter was used.

Failure to give information 43 The appellant made a number of allegations of failure to comply with s 424A of the Migration Act. That section provides: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. ... (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review... 44 In [102] of its reasons for decision, the Tribunal referred to a claim, made both in a letter of Dr Brown and again in the appellant's post-hearing submission to the Tribunal, that he feared reprisals from Muslims for having arranged for a local Muslim girl who worked for his mother to go to a Christian school. This was information that the appellant gave to the Tribunal for the purpose of the application. Section 424A(3)(b) excluded it from any obligation of the Tribunal pursuant to s 424A(1). 45 The appellant also relied on s 424A of the Migration Act in relation to what he described as the Tribunal's reliance on an extract from the reasons for decision of the Minister's delegate. The Tribunal did set out in [32] of its reasons for decision a summary of the reasoning of the Minister's delegate. There is nothing to indicate that anything in that summary was information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate's decision. All that the Tribunal was doing was giving an account of the history of the proceeding before it. The appellant also relied on s 424A of the Migration Act in relation to what the Tribunal said about the activity of his former migration agent. 46 At [117]-[119] of its reasons for decision, the Tribunal recounted the allegations about the migration agent's preparation of a false case for the appellant and said that it appeared that the appellant was apprehensive about making any complaint. The Tribunal recorded its impression that the appellant's concerns were genuinely held, despite its doubts about other aspects of his credibility. There is nothing to indicate that anything the appellant said was a reason, or a part of the reason, for affirming the decision of the Minister's delegate. Further, any information the Tribunal had about the former migration agent was given to it by the appellant for the purpose of the application, and so was the subject of s 424A(3)(b). 47 The appellant also alleged that the Tribunal had failed to comply with s 424A of the Migration Act in relation to the letter from Notre Dame College and the audiotape of his interview with an immigration officer. The Tribunal did raise with the appellant in the course of its hearing the contents of the letter from Notre Dame College. The only information in that letter adverse to the appellant was the information that he had not engaged in any political activity while at Notre Dame College. As the appellant had expressly abandoned in the Tribunal hearing any attempt to rely on the Convention ground of political opinion, the information in the letter was not something that the Tribunal could have regarded as information that would be the reason, or a part of the reason, for affirming the decision of the Minister's delegate. Although the Tribunal set out in [29] of its reasons for decision a summary of what the appellant had said to the immigration official, which was contained in the recording of the interview, there is nothing to indicate that the Tribunal derived from the recording of the interview any information that fell within s 424A(1)(a) of the Migration Act. The purpose of summarising the interview in the Tribunal's reasons for decision again appears to have been to set out the history of the proceeding. 48 The appellant also referred to the Tribunal's acceptance that the appellant had been attending the Presbyterian Church, and engaging in bible studies, while in Australia. He suggested that the Tribunal's finding that it did not "accept the implied claim that he has also promoted or defended the church and its practices" involved the Tribunal relying on information that fell within s 424A of the Migration Act. The Tribunal's conclusion that it did not accept a claim, whether the claim was express or implied, is not "information" for the purposes of s 424A(1)(a) of the Migration Act. The conclusion is merely the end result of the Tribunal's reasoning process. The same can be said of the Tribunal's finding that the appellant "may be critical of aspects of church life [in Bangladesh], and disappointed that the Catholic Church did not provide assistance with his protection visa application", which the appellant sought to bring within s 424A. 49 There was therefore no failure to comply with s 424A of the Migration Act. The appellant's attempts to rely on such failure to comply as evidence of the Tribunal's bias against him and denial of procedural fairness must fail. The federal magistrate was correct to reject these grounds of the application before him, to the extent that they were based on s 424A.

Misunderstanding the Tribunal's task 50 The appellant alleged that the Tribunal applied the wrong test in determining his case, by failing to ask itself whether there was a real chance that he would suffer persecution if he returned to Bangladesh. He also alleged that the Tribunal did not apply the correct meaning of the term "persecution". He asserted that: The Tribunal did nothing more than use the template of the usual recital of the law relating to the convention and the four elements to the Convention definition but failed to show in its reasoning how the concept was in fact applied to the claims made by the applicant and evidence given by the applicant in support of his claim. 51 This submission appears to have been based solely on the proposition that the Tribunal should have found that the appellant was at risk of being persecuted for his religious faith and perhaps his political opinion. The Tribunal certainly did set out the law in the form of a standard passage, used in reasons for decision by most, if not all, members of the Tribunal. There is nothing to show that it failed to understand the task it had to perform, or that it applied any wrong test. The fact that the appellant is dissatisfied with the result is not indicative of error by the Tribunal in these respects. The appellant did not point to any specific passage in the Tribunal's reasons for decision that might demonstrate an incorrect approach to the Tribunal's task. To the extent that this argument was encompassed by the grounds of appeal, it must be rejected.

Relevant and irrelevant considerations 52 The appellant alleged that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations. The allegation of taking into account irrelevant considerations appears to mean nothing more than that the Tribunal reached the wrong conclusion on the facts. The allegation of failing to take into account relevant considerations concerned a specific passage from the 2008 Human Rights Report of the US Department of State. That passage was as follows: Although the government was secular, religion shaped the platforms of certain political parties. Discrimination against members of religious minorities existed at both the governmental and societal levels, and religious minorities were disadvantaged in practice in such areas as access to government jobs, political office, and justice. - - - - Religious minorities were disadvantaged in seeking government jobs and political office. Selection boards for government services often lacked minority group representation. 53 Even if the appellant had referred the Tribunal to this passage, and the Tribunal had accepted it, the content of the passage would not have assisted the appellant to establish that he had a well-founded fear of persecution for reasons of his religion. Discrimination of the kinds mentioned in the passage does not amount to persecution, either within the meaning of that term as construed in the authorities, or within its meaning of "serious harm", as defined in s 91R(1)(b) of the Migration Act. The kinds of examples of "serious harm" given in s 91R(2) demonstrate this. 54 There is nothing to show that the report referred to in the appellant's written submissions was a consideration required by the Migration Act to be taken into account by the Tribunal in the present case. What is a relevant consideration that a decision-maker is bound to take into account is to be determined by an examination of the statute conferring the function on the decision-maker. See Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 per Mason J. It will be rare that a particular item of evidence will achieve the status of a relevant consideration that the decision-maker is bound to take into account. In the present case, the Tribunal certainly took into account evidence about the conditions under which Christians live in Bangladesh. At [80] of its reasons for decision, the Tribunal quoted from the US Department of State report entitled International Religious Freedom Report for 2008 - Bangladesh. The passages it quoted were more helpful to the appellant's case than the passage to which he referred in his written submissions would have been. Nevertheless, the Tribunal found that there was no real chance that the appellant would be met with serious harm as a Christian in Bangladesh. 55 The appellant cannot succeed on any ground relating to the failure to take into account relevant considerations, or the taking into account of irrelevant considerations. His attempt to reargue the facts cannot be entertained in this Court, and could not be entertained in the Federal Magistrates Court.

Other issues 56 In his oral submissions on the hearing of the appeal, the appellant made it perfectly clear that he wished to challenge the correctness of the Tribunal's decision by arguing that it should have determined the facts more favourably to his case than it did. I endeavoured to explain to him that the function of this Court, and the function of the Federal Magistrates Court, did not include investigating the facts and determining them differently from the way they were determined by the Tribunal. 57 The appellant said that he needed another hearing before the Tribunal to explain more about the issue of the Muslim girl he sent to a Christian school. The Tribunal said at [103] of its reasons for decision that it found his claims and evidence regarding this (and other incidents) to be "confused and often vague." Neither this Court nor the Federal Magistrates Court has power to set aside a decision and remit the case to the Tribunal for further hearing simply to give an applicant for a protection visa a second opportunity to state his or her claims more fully than he or she stated them to the Tribunal in the first place. The appellant could only succeed in the Federal Magistrates Court if he could establish jurisdictional error on the part of the Tribunal. Effectively this means that the Tribunal has failed to discharge its statutory function of reviewing the decision of the Minister's delegate. The Tribunal in the present case did discharge that function. The federal magistrate did not find any jurisdictional error on the part of the Tribunal. The appellant has not demonstrated any error on the part of the federal magistrate. He needed to demonstrate such error in order to succeed on his appeal. 58 The appellant also attempted to argue that he had not received a proper hearing before the Tribunal because he was nervous and tense and not able to express himself properly. He conceded that the Tribunal had not cut off his answers, so as to deny him the opportunity to say all he wanted to say. He did allege that the Tribunal brought the hearing to a sudden end. This assertion is not borne out by reference to the transcript of the Tribunal hearing. Towards the end of the hearing, the Tribunal member said "unless there's anything you want to add regarding specifically, persecution, I'll call the hearing to a close now". The Tribunal member then raised the question of the appellant's allegations about his former migration agent. The appellant then asked whether he could provide the Tribunal with anything written. He told the Tribunal member that he had matters he wished to submit in writing. Although indicating that it was not satisfactory that the appellant had left it to the day of the hearing to make new claims, the Tribunal member allowed him one week to make further submissions. 59 The appellant's oral submissions at the hearing of the appeal did not support the proposition that there was jurisdictional error on the part of the Tribunal. I have also examined closely the Tribunal's reasons for decision. I am unable to detect any jurisdictional error on the part of the Tribunal. I have also read closely the reasons for judgment of the federal magistrate. I have been unable to detect any error on the part of the federal magistrate. 60 In his written submission after the hearing of the appeal, the appellant attempted to raise an issue about the letter from Notre Dame College, suggesting that a Tribunal officer had assured him that the Tribunal would provide him with a copy of that letter before it made its decision, but the Tribunal had not provided him with that copy. He referred to provisions of the Migration Act relating to the Migration Review Tribunal, not the Refugee Review Tribunal. This submission travelled beyond the grant of leave to the appellant to make a further submission in writing, which was limited very specifically to references to the transcript of the Tribunal hearing. The submission raised a new issue. Because it was submitted without leave, I do not deal with the submission.

Conclusion 61 The appellant has failed to establish that the Federal Magistrates Court was in error in dismissing his application to that court. He has failed to establish that the federal magistrate should have made a finding of jurisdictional error on the part of the Tribunal. Accordingly, the appeal must be dismissed. 62 No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. Accordingly, the appellant will be ordered to pay the Minister's costs of the appeal. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.