SZRGA v Minister for Immigration and Border Protection

Summary of background facts 3 The appellants are a Turkish family who arrived in Australia on 1 February 2011. On 25 February 2011, the first appellant lodged an application for a protection (Class XA) visa (the visa), which included his family. In a submission dated 25 February 2011, which had been prepared by the appellants' representative, it was claimed that they feared persecution on the basis of their religious beliefs, being members of the Alevi minority in Turkey. On 9 April 2011, a further submission was made by the appellants' representative in support of their protection visa application. It was relevantly asserted in that submission that the first appellant had experienced physical harm at the hands of the police in his hometown on 30 November 2008 and 19 December 2009. He claimed to have been detained, physically assaulted and had a gun placed in his mouth. 4 On 13 May 2011, the Minister's delegate refused that application. On 1 June 2011, the appellants lodged an application for review of the delegate's decision by the Tribunal. On 17 February 2012, the Tribunal affirmed the delegate's decision. On 19 December 2012, the FCCA set aside the Tribunal's decision and remitted the application to the Tribunal for redetermination according to law. 5 On 20 December 2013, the Tribunal (differently constituted) again affirmed the delegate's decision. On 14 January 2014, the appellants sought judicial review in the FCCA of the Tribunal's second decision. 6 Although the delegate ultimately rejected the appellants' visa application, the delegate accepted that the first appellant was an Arab-Alevi from Turkey and that he may have been discriminated against there because of his religion, including being detained by the police on two occasions, which included him suffering physical mistreatment on one of those occasions. The delegate found, however, that the first appellant's claims regarding lack of freedom to practise his religion were vague and lacked detail and did not amount to "serious harm" for the purposes of s 91R of the Migration Act 1958 (Cth) (Act). The delegate also rejected the alternative claims for complementary protection. 7 As noted above, the delegate's decision was affirmed by the Tribunal twice. It is only the second of those occasions that is relevant. In that decision, the Tribunal accepted that the first appellant was an Alevi Arab and that he faced ostracism and discrimination at school, in the community and in business. The Tribunal did not accept, however, the first appellant's claim to have been detained by the police on two occasions or to have been subject to ill-treatment by police. This finding is in contrast to the earlier findings on this issue by the delegate. In explaining why it did not accept the first appellant's claims that he had been detained by the police twice and to have been ill-treated on one of those occasions, the Tribunal explained that the incidents were not referred to in the initial visa application or in the appellants' representative's accompanying letter dated 25 February 2011, in which the appellants' claims were summarised. The Tribunal noted the first appellant's explanation as to why these claims were not made previously, which was that he was "fearful of speaking out against the authorities especially as he has family in Turkey" (see [37] of the Tribunal's reasons for decision). The Tribunal observed that the first appellant had spoken out "against the authorities in regard to a number of other matters and that this, together with some other relevant matters, caused the Tribunal to conclude that it did not accept that the first appellant would not have included key elements of his claims in his initial visa application. The Tribunal reasoned that the incidents would have been raised earlier if in fact they had occurred. 8 It is convenient to explain in more detail the alleged mistranslation of the first appellant's answers to questions during the course of the Tribunal hearing. It should be noted that in the FCCA the appellants were permitted to read an affidavit of Suat Kocyigit, which annexed extracts from the transcript of the Tribunal hearing in which the Tribunal raised some matters with the first appellant, together with translations from Turkish into English of the first appellant's responses. Mr Kocyigit listened to the audiotape of the Tribunal hearing and provided his own translation from Turkish into English of particular passages which the interpreter had translated at the hearing. 9 The appellants also sought to rely upon a second affidavit by a Mert Ilgin, which provided a transcription of the audio tape of the English parts of the Tribunal hearing, however, the FCCA did not allow that affidavit to be read because the deponent was under the age of 18 years. It might be noted, however, that parts of Mr Ilgin's transcription were put into evidence because they formed part of the material which was briefed to Mr Kocyijit. Apparently no objection was taken to the material being adduced in that way. 10 The transcript recorded the Tribunal member putting the following matters (in English) to the first appellant for comment (errors in original): Tribunal: Also I wanted to ask you about information in your initial application to the department of immigration, which was in February 2011, So in you initial application, you filled in some forms and also an adviser provided some information on your behalf, you did not include any information about the two times that you had and event with the police, and you only included this information in April 2011, so this to me appears unusual, because if there is a key event to your claim, it's unclear to me why it would not be included in your application. This may lead me to conclude that if information is added later, it's been added to bolster your claims rather than that being the facts. (Emphasis added). 11 According to Mr Kocyigit's evidence, the translation of this passage from English to Turkish by the interpreter at the hearing for the first appellant's benefit was as follows (errors in original): Judge: The application you made to the Department in February 2011 and information contained in your application I will ask questions. You filled a form and the Advisor gave some information. The events you have twice lived with the police you did not mention those. You only did in April 2011. In the in the report you submitted you did not mention those very important matters similar to these are mentioned in later dates. It is only to strenghten your application which was added later on it is seen as it. (Emphasis added). 12 The transcript recorded the Tribunal member being told by the interpreter at the hearing that the first appellant's response (having been translated by the interpreter at the hearing) was as follows (errors in original): Interpreter: You might recall that I already mentioned, that I only talked about this to my wife only. I was told that you should not be disclosing what happened to any authorities, as they would be informed first. They threatened that it would cause further more harm to you. I have got brothers and sisters and my mum in Turkey. I couldn't put in my initial statement, I asked a friend's wife, to see if it would cause any problem for me if I disclosed any information of what happened, if the Turkish authorities would know. What was said by the solicitor, when I went to solicitor. I asked him if it would go back to Turkey and he said no, no such thing. He said why don't you tell what you really experienced, don't be scared he said. I felt relaxed when he said that, then I told everything from the beginning to the end, in the end I've got a family in Turkey. If I had bad intentions, I would've said all these earlier. But there's no such thing by being informed about this, by the solicitor, it gave me some relief. (Emphasis added). 13 According to Mr Kocyigit's evidence, correctly translated into English, the first appellant's response was actually as follows (errors in original): Interpreter: Now I'll say like this if you remember what I did say before I said this to my wife only. Because police had told me this there is no need to inform any court if you do we will know it first and this may result much worse results for you and he threatened me. At present now in Turkey, I have brothers sister and my mother. I couldn't put these in my initial application. Then later on my solicitor let me put it this way wife of a friend English was good and I asked her to call the Solicitor and asked him if I mentioned this Turkish Consulate Turkey or will they be informed of these I mean if if I tell what I lived through in the past. I am telling now what was said to me through friend's wife. We went to the solicitor and he told me to mention these I said if I mentioned this would they be reported to Turkey. He said absolutely no never. He said why you are not telling what you lived through really in the past. He said don't be scared when he said this to me I felt relaxed and I told every thing from the beginning to the end. I have a family living in Turkey if I had bad intention I would write these at the beginning I would have planned this before. There is no such thing absolutely but solicitor's explanations of these made me feel relaxed. (Emphasis added). 14 For completeness, it might be noted that the translated passages set out above are not in identical terms to those which were cited by the primary judge. I have relied upon the evidence of Mr Kocyigit. It appears that, although the primary judge also intended to rely upon that material, there are some typographical errors in the relevant passages set out in her Honour's reasons for judgment. However, Mr Killalea, who appeared for the appellants in the appeal, confirmed that nothing of significance turned on those typographical errors. The Minister appeared to adopt a similar position.

The appeal 21 The notice of appeal raised the following three grounds (errors in original): 1. Her Honor erred in finding ([63]) that "... I am not satisfied that the hearing was not 'real and meaningful' when considered as a whole" 2. Her Honor erred in finding ([64.8]) that "I am not satisfied that there was any mistranslation that led to a material unfairness ... " 3. Her Honour erred by denying procedural fairness to the appellants by denying them the opportunity, at the hearing, to make further submissions on submissions made in chief. Particulars Transcript of proceedings ("T'') T14 - T36 22 Grounds 1 and 2 were not pressed. Accordingly, only ground 3 requires consideration and determination. 23 For that purpose, it is convenient to now summarise the course of the hearing in the FCCA. Mr Killalea took the primary judge at some length to relevant parts of the Tribunal transcript relating to the two incidents with the police. Mr Killalea submitted that, because of the mistranslation by the interpreter, the Tribunal had not been informed as to the first appellant's response as to why he had not initially raised the police incidents. In particular, he emphasised that the Tribunal had not been informed of the first appellant's evidence that it was the police who had threatened him if he disclosed what the police had done to him and that it was not simply a matter of Turkish authorities in general "who might exact retribution upon him". 24 It is desirable to set out from page 20 of the FCCA transcript Mr Killalea's submissions in chief on this point, noting that the submissions are made with specific reference to [37] of the Tribunal's reasons for decision (errors in original): MR KILLALEA: And what he said in Turkish, the reference to the police, is particularly material, because the - again, at paragraph 37 at 171, the tribunal says, after the impugn sentence: However, he did speak out against the authorities in regard to a number of other matters. Further - further - that it was further - the application from - or, sorry, the application form for the protection visa clearly states all information to the claim should be included. The applicant was legally advised. I take it advised by Mr Joel. In these circumstances, the tribunal does not accept that he would have not included in his application key elements of his claims, that he'd been arrested twice by the authorities because of his work in the Alevi community. So it's a very important part of his claim, and it was dismissed by the tribunal, who hadn't been informed of the particular circumstances, the particular circumstances that it was the police who had threatened him if he disclosed what had happened to him regarding the police, and that it wasn't simply a matter of authorities in general who might exact retribution upon him. The retribution was to come from the police, not from the authorities in general. And that's the - that's where the tribunal's conclusion about him speaking out against the authorities in regard to a number of other matters illustrates and makes manifest that the tribunal was not aware of the particular claims that he had made in relation to the police and why it was that he included the police in the second letter and not the first. 25 Mr Killalea's submission to the primary judge on the relevant point was then summed up by him on page 22 of the FCCA transcript: So I submit to your Honour that the tribunal itself identifying that the claims he made about the police mistreating him being a critical element to his application and that information not being given through the translation process, the translation/ interpretation process, that your Honour would find for the applicant in this matter. That's my submission, your Honour. 26 In response, Ms Watson (who appeared for the Minister) submitted to the FCCA that the fact that the interpreter had said "they would be informed first" rather than "as the police would have been informed first" did not involve jurisdictional error. She submitted that the omission of the word "police" was not significant because the substance of the first appellant's response was conveyed to the Tribunal by the interpreter. Ms Watson submitted that the first appellant's evidence was, in substance, that he had received a threat that he would suffer more harm if he disclosed to anyone what had happened to him. Ms Watson submitted that the mistranslation did not satisfy the relevant tests concerning jurisdictional error arising from a mistranslation. 27 Ms Watson's submissions are encapsulated in the following extract from page 27 of the FCCA transcript: What the applicant here has attempted to do is elevate the vagaries of the interpretation process in an interpreter choosing the word "they" rather than "police" and trying to elevate that to some basis for an argument of jurisdictional error. 28 The FCCA transcript records the primary judge then asking Mr Killalea at page 27 whether there was "[A]nything arising". The following exchange then ensued: MR KILLALEA: Yes. I just submit my friend's submission fails to count for, in a sense, what we put to the court this morning. That, we're not saying that there wasn't a proper question asked, and we agree as to the content of the question, but what the tribunal of course has to take account of, is the answer they get. And if they're - the problem that has arisen here is that the answer that comes back--- HER HONOUR: This is a submission you've already made, isn't it? MR KILLALEA: Well, it's just the way my friend put it. It's something that I think I should answer to. The argument is so tight that my friend hasn't really addressed this issue, and that is that the tribunal must listen to the answer that comes back. And the answer that comes back doesn't refer to the police. But the police incident is referred to as being a key element of his claim by the tribunal itself. I am concerned that if I haven't been able to - haven't been able in a sense to make clear my argument to my friend, perhaps I haven't made it clear to the court. I might just address your Honour shortly on that for that reason. HER HONOUR: Well Mr Killalea, there's no need to make submissions that you've already made. Is it something you want to say arising from something that Ms Watson has put, I'm happy to hear you, but I don't want to hear your submissions in-chief again. MR KILLALEA: Now, my friend took you to SZRMQ and some cases - some authorities which, in a sense, indicate that the court shouldn't be looking to every error. It certainly should be looking to every error that's made in translation. My answer to that is simply that this issue has been identified as a key element to its claim and that is why it falls that the application consideration where there has been procedural unfairness. I hear my friend on the section 425 point. I seek leave to add to the amended application at ground 1, where the ground is that there has been a tribunal… denying the applicant's procedural fairness. I seek leave to add and/or fail to comply with section 425 of the Migration Act for the same--- 29 There then followed a lengthy discussion between the primary judge and both Mr Killalea and Ms Watson as to whether the appellants should be granted leave to amend their judicial review application so as to raise a complaint of failure to comply with s 425 of the Act. Leave was ultimately granted. 30 The appellants' submissions in support of their sole ground of appeal may be summarised as follows: (a) in [37] of its reasons for decision, the Tribunal stated: The Tribunal does not accept that these incidents occurred because they were not referred to in his initial application to the Department or in the accompanying advisor's claims. A few months later these claims were added to his application. When asked why this was the case, the primary applicant said he was fearful of speaking out against the authorities especially as he has family in Turkey. However he did speak out against the authorities in regard to a number of other matters. Further, the application form for the protection visa clearly states that all information about the claims should be included. The applicant was legally advised. In these circumstances the Tribunal does not accept that he would not have included in his application key elements of his claims - that he had been arrested twice by the authorities because of his work in the Alevi community; (b) in his response as to why his claims against the police were not raised by him initially, the first appellant said that the police had threatened further and serious harm to him if he disclosed their conduct, but the translation of his response did not include any direct reference to the police; (c) the first appellant believed that the Tribunal had not appreciated his explanation that, at the time of the making of the visa application, he was fearful of disclosing the incidents involving the police but that this fear was later lifted so he then raised the matter in a subsequent letter; (d) in the FCCA, Mr Killalea sought to support the judicial review application by pointing to the Tribunal's conclusion in [37] regarding him speaking out "against the authorities in regard to a number of other matters" as demonstrating that the Tribunal was not aware of the particular claims that he had made in relation to the police and why he had not raised those claims initially; (e) Ms Watson did not address that particular point; (f) accordingly, Mr Killalea sought to explain the point in reply on the basis that the FCCA also may not have understood the point; (g) the primary judge refused Mr Killalea the opportunity to make any further submissions on the point; and (h) the Court made no reference in its reasons for judgment to the point of argument which Mr Killalea had sought to develop. 31 For the following reasons, I do not consider that the FCCA denied the appellants procedural fairness. 32 First, having regard to the closing oral submissions of both the appellants and the Minister the FCCA was entitled to confine Mr Killalea to making further submissions which were strictly in reply to the Minister's closing address and not simply restate matters already put by him in chief. 33 In my opinion, the argument which Mr Killalea claims he wished to develop but was prevented from doing so by the FCCA was, in substance, put by him several times in his closing address in chief (see [24] and [25] above). Moreover, the argument was identified in the particulars to the appellants' judicial review ground. 34 Secondly, to the extent that Ms Watson had not grasped the point that Mr Killalea sought to make on this matter and Mr Killalea wished to develop the point in reply in case the FCCA had a similar misunderstanding, Mr Killalea did in fact explain the point to her Honour, as is reflected in the third paragraph of the extracts from the FCCA transcript set out in [28] above. The FCCA plainly did understand the point sufficiently, as is reflected in the fact that, Mr Killalea having explained the point, her Honour reminded him that there was no need for him to repeat submissions that had already been made. Her Honour viewed his explanation of the point as repetitive of Mr Killalea's submissions in chief. It was open to her Honour to do so. 35 Thirdly, it is evident from the transcript that the primary judge made it clear that she imposed no constraint on Mr Killalea making proper submissions in reply, but she did not want to hear his submissions in chief again. That was a reasonable and proper approach. As the extracts set out in [28] above disclose, Mr Killalea did not claim before her Honour that any point which he wished further to develop was truly in reply and not merely a repetition of what he had already said in chief. Instead, having heard her Honour's comments on the distinction between submissions in chief and those in reply, Mr Killalea said nothing further about the point which he now says he was prevented from developing. He proceeded without demur to address her Honour on legal authorities which Ms Watson had cited. These submissions were truly in reply. 36 Fourthly, if contrary to the above, even if the primary judge prevented Mr Killalea from making additional submissions to those which he had already made on the relevant point, no procedural unfairness occurred. The requirements of procedural fairness do not mean that a party in litigation such as this proceeding in the FCCA can elect not to develop an argument in chief and instead store up the full argument for reply. Procedural fairness requires a party to be given a "reasonable opportunity" to present evidence and to make submissions (see Shrestha v Migration Review Tribunal [2015] FCAFC 87 at [38] per Mansfield, Tracey and Mortimer JJ and International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [54] per French CJ). In my view, Mr Killalea was afforded a reasonable opportunity to present the appellants' arguments. As I have already indicated, I consider that the argument which gives rise to the appeal was, in substance, put to the primary judge several times. In oral address before me, Mr Killalea submitted that the relevant passages from the FCCA transcript should be viewed as merely representing the equivalent of "heads of agreement" and that he did not "expose" the full argument. I do not accept that submission. But even if I did, I repeat that the failure to develop the argument in chief reflected a judgment by Mr Killalea himself and did not reflect any constraint imposed by the FCCA on how he presented his clients' case in chief. 37 Fifthly, I do not accept the appellants' contention that it was inappropriate for the primary judge to require the appellants to present their case in a manner which conformed with well-established principles regarding the distinction between a case being presented in chief as opposed to reply. In particular, I reject their submission that these principles had either no, or lesser, application in a judicial review proceeding than in civil or criminal proceedings generally. No authority was cited to support this contention. 38 Sixthly, as Gleeson CJ emphasised in an oft-quoted passage in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37], the concern of the law regarding procedural fairness is to avoid practical injustice (see also Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [57] per Gageler and Gordon JJ). I consider that no practical injustice has been demonstrated by the appellant here in circumstances where: (a) the primary judge did not prevent the appellants' solicitor from fully developing the submissions which he wished to make in chief in respect of [37] of the Tribunal's reasons for decision. To the extent that the argument was not fully developed in chief, that was a judgment made by the appellants' solicitor who could have had no reasonable expectation that he would be permitted to develop the argument further in reply, at least without first obtaining the Court's leave; (b) no limitation was imposed by the primary judge on Mr Killalea making closing submissions which were truly in reply; (c) in any event, in my view, Mr Killalea did develop the point he wished to make, not only several times in chief but also in his exchange with the primary judge on the subject of what the point was that he wished to develop; and (d) in the appeal, Mr Killalea has not identified anything of substance or significance which he wished to add to what he had already put to the primary judge and which he claims he was prevented from doing so. 39 I do not accept the appellants' submission that the primary judge failed to deal with the point of argument which Mr Killalea had sought to develop. The issue was squarely addressed by her Honour in [59] of her reasons for judgment, where her Honour made express reference to the first appellant's submission "that his response was that the police threatened that things would be worse for him if he disclosed what had happened with the police and that was the reason that he made no mention of those events in his initial application or to his representative at that time". Her Honour also made express reference in that paragraph to the first appellant's explanation as to why he subsequently caused the police incidents to be included in his representative's letter dated 9 April 2011, as well as to his submission that it was the interpreter's inadequate translation "which resulted in the RRT not being informed that it was the allegations of adverse police conduct which were not raised" earlier. 40 Furthermore, in [67] of her reasons for judgment (see [19] above) when, in summarising the Tribunal's reasoning, her Honour stated that the Tribunal did not draw any distinction between the applicant being threatened by authorities or the police. That comment was made in the specific context of the primary judge's analysis of the significance the Tribunal attached to the fact that the first appellant had not included claims that he considered to be critical to his visa application when it was initially lodged. It is evident from several paragraphs in the Tribunal's reasons for decision that it viewed the police as falling within the broader concept of "authorities" (see, for example, [37], [38] and [40]). 41 Her Honour's appreciation of the fact that the two alleged incidents involved the police and a mistreatment of the first appellant is further evident in [69] of her Honour's reasons for judgment (see also [19] above), which further analysed the Tribunal's reasons for rejecting the first appellant's claims. 42 Finally, it should be noted that the Minister submitted that, if there was procedural unfairness, the Court should decide for itself whether the primary judge correctly concluded that the Tribunal did not breach s 425 of the Act. It is unnecessary to take this step in circumstances where the appellants' complaint of procedural unfairness has been rejected.

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)