SZQLS v Minister for Immigration and Citizenship

Ground 3 8 To understand the basis of the attack made on the judgment below under this ground, it is first necessary to make some observations concerning the obligation or obligations which attended Ms O'Connell in the conduct of her review. 9 As it happens, the appellant was, along with plaintiff M61, instrumental in highlighting the nature of the obligations which fell upon Ms O'Connell. She was obliged in the conduct of her review to afford the appellant procedural fairness: see M61 at para 90 and para 91 in particular. More particularly, and as the High Court there highlighted, at [90], fn 74, by reference to Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov) at 1092 at [24] and 1102 at [95]. Ms O'Connell was obliged to deal with the claim for refugee status made by the appellant. A failure so to do would amount to a denial of procedural fairness. 10 In effect, the appellant, by ground 3, contends that the learned federal magistrate fell into error by failing to address particularised, so-called "integers" of the appellant's claim for refugee status. That this is so is said to emerge from a reading of the reasons given by Ms O'Connell. 11 Before descending into detail in relation to the submissions in respect of this ground, it is necessary firmly to bear in mind the observations made in the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) counselling against an overly critical, narrow reading of an administrator's reasons to the end of detecting error therein, as opposed to appreciating that the task faced by the administrator in furnishing reasons is to inform the person interested in the decision as to why it has been made. It is singularly important on judicial review to adhere to the spirit of those observations in Wu Shan Liang and for that adherence to translate into a principled restraint in relation to the scrutiny of administrators' reasons. 12 In relation to Ms O'Connell's reasons, attention was particularly directed by the appellant, as it self-evidently was in submissions before the learned federal magistrate, to para 67 and para 68 of Ms O'Connell's reasons. Those paragraphs are in the following terms. 67. …The reviewer accepts that the claimant had some association with the CCWD and that he may have been checked on entering the hospital to visit patients but does not accept that these checks were more than routine checks and that the claimant was of particular adverse interest to the Sri Lankan authorities. 68: For the reasons set out above the reviewer does not accept that the claimant came to the adverse attention of the Sri Lankan authorities prior to his departure from Sri Lanka. The reviewer does not accept that the claimant faces harm from the authorities of Sri Lanka on his return for reasons of his involvement with CCWD, his participation in a university demonstration in 2005 or his involvement with student magazines or these events taken cumulatively. Nor does the reviewer accept that the claimant has a profile on the basis of his actions in Sri Lanka considered individually or taken collectively. The reference in the passage quoted to CCWD is a reference to an organisation in Sri Lanka known as the Centre for Childcare and Women's Development. 13 Paragraph 3(d) of the notice of appeal engages with those paragraphs of the reviewer's reasons. In the court below, at paragraph 29, the learned federal magistrate observed of the integer in relation to CCWD activities and involvement said not to have been taken into account: 29. To the extent that there may be something about his association with the CCWD or his questioning that wasn't dealt with by the Reviewer specifically I am of the view that those matters would have been subsumed in the findings of great generality; Applicant WAEE v Minister for Immigration & Anor [2003] FCAFC 184 at [47]. 14 The Full Court's decision in the case cited has been reported, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 (Applicant WAEE). The relevance of the paragraph, 47, to which the learned federal magistrate drew attention is best understood by reading it in conjunction with that which preceded it. Together, at paragraphs 46 and 47, the Full Court in Applicant WAEE stated: [46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225 ; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. [emphasis added] 15 Those observations were made in relation to the reasons of the Refugee Review Tribunal. They are, though, equally apt in relation to the reasons of a reviewer such as Ms O'Connell. 16 The difficulty in relation to ground 3(d), and its focus upon the way in which the learned federal magistrate dealt with paragraphs 67 and 68 of the reviewer's reasons and, in turn, in relation to the claim integer based on involvement with or activities of the CCWD, is in that very focus upon those particular paragraphs of the reviewer's reasons, to the exclusion of reading those reasons as a whole. More particularly, the difficulty in relation to the claimed failure by the federal magistrate to appreciate that this particular integer of the claim for refugee status had not been considered by the reviewer, is that the reviewer, at paragraphs 58 through to 60, makes other express findings in relation to the activities of the CCWD and the appellant's involvement with that organisation. The reviewer there states: 58. The claimant has suggested that he has an anti-government profile and came to the adverse attention of the Sri Lankan authorities prior to his departure from Sri Lanka for several reasons. These are that he participated in a university demonstration in 2005; he wrote articles in a student magazine, and he worked for an NGO [Non-government Organisation] called the Centre for Childcare and Women's Development. 59. The reviewer accepts that the claimant participated in a university wide demonstration in 2005; that he wrote in a student magazine and for a brief period in 2008 assisted the CCWD. However, the reviewer does not accept that the claimant's engagement in any of these activities considered individually or taken collectively resulted in the claimant being of adverse interest to the Sri Lankan authorities. 60. In his written statements, the claimant claims that he was singled out and targeted by the army for his participation at the demonstration in 2005, monitored when writing for a student magazine and questioned about his participation in the CCWD. In his oral testimony, these claims were not substantiated. 17 Earlier, at paragraph 22, the reviewer, in setting out the claims made by the appellant, stated: The claimant takes issue with the delegate's decision and states that he was involved with the CCWD and visited hospitals to help patients and that this is what brought him under suspicion of having LTTE association. He states in the past Tamil workers from the CCWD faced arrest by the army and that the army does not wish people to know the truth about the treatment of Tamils. 18 There was ample evidence before the reviewer upon which she might reasonably have made the findings set out in paragraphs 58, 59, and 60 of her reasons. One must, as the authorities require, reading her reason a whole, read paragraphs 67 and 68 of those reasons in the context, materially, so far as the CCWD is concerned of the findings earlier made in paragraphs 58, 59, and 60. Further, one must examine the adequacy of the assessment of the claim by reference to the way in which it was understood, as set out in paragraph 22 of the reviewer's reasons (see also paragraph 18 in that regard). These matters were highlighted in the submissions made in respect of ground 3(d) on behalf of the Minister. I consider that there is substance in those submissions. 19 The learned federal magistrate, albeit in a compressed way in paragraph 29, also must have considered that there was substance in the counselling against reading narrowly the reasons of the reviewer; hence the reference to Applicant WAEE. In my opinion, insofar as an integer of the appellant's claim for refugee status was involvement with or activities of the CCWD, that has been both understood and addressed by the reviewer and the challenge to that particular conclusion has been rightly dismissed by the learned federal magistrate for the reason given at paragraph 29 of the reasons for judgment below. 20 Other particulars of an inadequate consideration by the reviewer are also furnished under ground 3. What was said in the Full Court in Applicant WAEE at paragraphs 46 and 47 and by the High Court in Wu Shan Liang applies just as much to these particularised bases of challenge as it does to paragraph 3(d) of the notice of appeal. 21 As to the other bases upon which ground 3 is founded, it is convenient first to refer to ground 3(c) namely, that based upon an asserted accusation that the appellant's father had been accused of assisting the LTTE. This basis for the claim was not ignored by the reviewer, as paragraph 11 of her reasons discloses. She there states: He states we was born in Jaffna and lived there until 1995. He states that his father was accused, a point in time, of assisting the LTTE so his family continued to move for fear of their safety and for this reason they moved to Mullaitivu, where he continued his studies. The family next moved to Vavuniya where his father started a hotel business and the claimant continued his studies. He states that people were killed in front of his father's hotel in 2007 and that his father was blackmailed. He states that his father discontinued the business in 2008. 22 It is true, as was stated in the appellant's submissions, that there is no further development of this basis for the claim in the reviewer's reasons. That though, is hardly surprising because nowhere is there to be found any identified and developed submission by or on behalf of the appellant to the reviewer, or earlier, relying upon these asserted events in his father's experiences as a basis upon which the appellant had a well-founded fear himself of persecution. Against that background, it does not, in my opinion, transgress the procedural fairness requirement highlighted in Dranichnikov that the reviewer did nothing more than note what had been asserted but was left undeveloped in terms of a basis for a well-founded fear of persecution. 23 What the reviewer has also done is to make a general finding in relation to the bases for the appellant's claims. At paragraph 57, the reviewer states: The reviewer does not accept that the claimant has a profile as an LTTE associate or ally, or as anti-government or has been imputed with any of these profiles by the Sri Lankan authorities. In other words, another way of reading the reviewer's reasons is that Ms O'Connell, whilst cognisant of the assertion in relation to the father's having been accused, does not make anything of that in terms of that providing a foundation for a fear on the part of the appellant of persecution on the basis of having a profile as an LTTE associate or ally. 24 However one approaches ground 3(c) there was no error on the part of the federal magistrate in discounting that as a basis upon which there had been a failure to consider the appellant's claim. 25 As to grounds 3(a) and (b), these matters were addressed by the learned federal magistrate at paragraphs 21 and 22. His Honour there refers to particular paragraphs namely, 25, 48 and 71 of the reviewer's reasons, by reference to which it is plain that Ms O'Connell did consider both the ramifications for the appellant, in the event of his return to Sri Lanka of his move from Christmas Island Immigration Detention Centre to Villawood Immigration Detention Centre having been filmed and published by the media as well as what, if anything, to make of his fears based on his having discussed his High Court case by telephone with members of his family in Sri Lanka and his fears that the telephone conversations were monitored by Sri Lankan authorities. 26 As to the latter ground, the learned federal magistrate observed at paragraph 25: This was only a suspicion in the mind of the applicant. He did not suggest to the tribunal what might transpire as a result or even what he is alleged to have said to his family that might enhance his claim to fear persecution. Given the vague nature of the claim it would appear to have been dealt with by the Reviewer [72] CB 250 when she says: "[72] In particular the reviewer does nto accept that the Sri Lankan authorities would impute him with a political opinion by reason of his asylum seeking in Australia. That is, the reviewer does not accept the claimant's claim that he would be viewed as a person who had information or secrets to give to the Australian government and would in this sense be attributed with an imputed political opinion as anti-government or that his actions here in Australia would lead the Sri Lankan authorities to consider him to be an associate of the LTTE." [sic] [emphasis in original] 27 I agree with this particular assessment of the federal magistrate of this particular aspect of the appellant's claim. When one looks to the basis upon which it was founded, it is, indeed, as the learned federal magistrate observed, only a suspicion in the mind of the applicant, based on nothing more than his asserted hearing of clicks during the course of telephone conversations. There was no evidence at all of any monitoring. 28 The learned federal magistrate was entitled to conclude that this basis for the claim was vague and necessarily subsumed in an assessment by Ms O'Connell that she did not accept that Sri Lankan authorities would impute to him a political opinion by reason of his asylum seeking in Australia. This basis of the claim was, to say the least, shadowy. The reviewer was entitled to deal with it in the way in which she did, in other words, in a generic way. 29 It follows from the forgoing that I do not see any merit in ground 3 of the notice of appeal.

Ground 4 30 Ground 4 is also, on analysis, a procedural-fairness ground; procedural fairness in the sense that, if accepted, the inadequacy of translation or assimilation of the answers given in Tamil would mean that the appellant had not been afforded truly an opportunity to be heard by the reviewer. 31 In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Perera), Kenny J discussed, at some length, and in the context of the obligation specified with respect to the Refugee Review Tribunal in s 425 of the Migration Act 1958 (Cth), the question of whether inadequacy in interpretation might lead to a transgression of the obligation found in that section. It was common ground between the parties, and rightly so in my opinion, that her Honour's observations were relevant by analogy to the question as to whether the translation undertaken in the interview which Ms O'Connell conducted of the appellant was such as to give rise to a denial of procedural fairness to the appellant. In Perera, at para 45, her Honour observed: It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision: cf Yi Gui Stone v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Hill J, 28 June 1996). Similarly, in Tran, the Court held (at 991), that in order to succeed, the accused had to show that: "the lapse in interpretation which occurred was in respect of the proceedings themselves, thereby involving the vital interests of the accused, and was not merely in respect of some collateral or extrinsic matter, such as an administrative issue relating to scheduling." 32 Later in time, in WALN v Minister for Immigration and Multicultural Affairs [2006] FCAFC 131 at [29], the Full Court, Ryan, Tamberlin and Middleton JJ, stated: 29 To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry; see Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, at [18]. Those authorities were applied in Appellant P119 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230 and WACO Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, at [63]-[68]. See also SZJZE v Minister for Immigration and Citizenship [2007] FCA 1653 per Middleton J. 33 In short, then, the appellant's submissions were directed to the end of establishing by reference to the interview of the appellant by Ms O'Connell either or each of the following: (a) that the standard of interpretation at that interview by the reviewer was so inadequate that the appellant was effectively prevented from giving evidence at the hearing; or (b) that errors were made by the interpreter at that reviewer interview, which were material to the conclusions which Ms O'Connell made adversely to him. 34 These issues were the subject of extensive consideration by the learned federal magistrate at paragraphs 30 and following under the headings 'The Translation Issue', 'The Test to be Applied' and 'Application of the Test'. 35 It emerged in the course of the appellant's oral submissions that the criticism made of the judgment below was not so much that the correct test had not been identified, but rather that, in the application of that test to the interview at hand, there had been one or the other of the errors which I have mentioned. To that end, the same errors as those rehearsed at great length by the federal magistrate were identified. 36 I have separately read the interview conducted by the reviewer. The end result of that is no different conclusion on my part to that to which the learned federal magistrate ultimately came at paragraph 61. That is that, considered either individually or cumulatively the identified errors were not such that the quality of the interpretation was so severely below a required standard that the appellant was not able properly to advance his case during the hearing. Further, again considering the identified deficiencies both individually and cumulatively, I do not consider, as the learned federal magistrate did not consider, that there was an error which led to material relevant to the claim for refugee status not being put forward. In other words, I do not see reading the transcript as a whole, that there were material errors. 37 That is not to say, as indeed the federal magistrate concluded, that this translation was one of the highest quality. There is a necessarily impressionistic aspect to an assessment of these types of alleged errors. At the extreme, such errors will be easy to identify. At less than that, it is important not to seize in isolation upon any one particular error. It is also important to read what are said to be errors in context, and to appreciate that this was a free flowing conversation. 38 As for the detailed bases upon which I reach this conclusion in respect of ground 4, I am in complete agreement with the analysis made by the learned federal magistrate. It would, in those circumstances, be otiose to repeat that. 39 It follows from the foregoing that there is not, in my opinion, merit in either ground 3 or ground 4. I therefore dismiss the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.