SZRMQ v. Minister for Immigration and Border Protection & Anor [2014] HCATrans 110 (16 May 2014)

Last Updated: 20 May 2014

[2014] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S1 of 2014

B e t w e e n -

SZRMQ

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2014, AT 10.45 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC: May it please the Court, I appear in this matter with MR L.J. KARP, for the applicant. (instructed by Legal Aid NSW)

MR T. REILLY: If the Court pleases, I appear for the first respondent. (instructed by Australian Government Solicitor)

FRENCH CJ: Thank you. I note a submitting appearance for the second respondent. Yes, Mr Lloyd.

MR LLOYD: So far as our researches disclose, this Court has not considered the circumstances where inadequate interpretation at a hearing or interview will constitute a failure to accord procedural fairness. There was no dispute in the court below that there is a point at which interpretation will be so inadequate that it will amount to a failure to provide procedural fairness. This is an area where the guiding principles can be stated only at a high level of obstruction and this leaves very considerable scope for variation in the application of those principles to the facts in each case.

BELL J: How can addressing the fact sensitive details of a given case provide assistance in the application of the general principle in other cases? Do you take issue with the approach of the majority in terms of the statement of the principle?

MR LLOYD: Part of the difficulty, your Honour, is in terms of the ambit and the level of the statement of principle. If one goes, for example, to the Chief Justice’s judgment, it is put in various ways. At the bottom of page 129 it says:

That hearing was required to be fair.

We do not take exception with that. Paragraph 6 on page 130, his Honour notes that the principles or requirements are not “apt for precise delineation”, we accept that. In paragraph 10 - - -

BELL J: Just before you get to paragraph 10, do you cavil with the Chief Justice’s observation that “Fairness is normative, evaluative [and] context specific”?

MR LLOYD: No, we do not. But what we do say is when one looks at, for example, how one gets to the principle again in paragraph 10, about line 29:

The enquiry is not to investigate –

so it is elaborated by what it is not –

and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process . . . was fair.

At paragraph 15, his Honour the Chief Justice respectfully agrees with the short statement of principle identified by Justice Lee in the case cited that the:

standard [is] “to ensure that justice is done” -

Our point is that having statements of principle at that level, we do not – we obviously do not say they are wrong, but there is then scope. There are many cases – an increasing number of cases with people complaining about interpretation. This case, we say, is a good – given that any case that comes up on this subject will necessarily be a situation of applying a very broad principle to facts, this is a good case for a grant of special leave because, first of all, there are eight instances of wrongful interpretation. There is no dispute about them, what was said and what was done. They are clear instances of error.

They provide different features so the court can consider errors in different contexts. By that I mean there are instances where the questions were misinterpreted, instances where the answers were misinterpreted. There are instances where the country information was misinterpreted which was being put for comment, and there are also instances where critical asides were not interpreted at all.

BELL J: Mr Lloyd, is this not the difficulty? Do you suggest that it would be useful for this Court to pronounce some principle about the significance in every case of a mistranslation of country information by contrast with a mistranslation of a question? How could the Court develop principles at a greater level of specificity than one finds in the judgments of the Chief Justice and Justice Robertson?

MR LLOYD: I accept what your Honour says but that then leaves a position with either the Court saying this whole subject matter is just not something that this Court will ever look at because it is always going to be a situation where there is this high level of abstract principle and particular facts, and we say that given that there are different views, there are different views in this case as between the judges and the court below.

Justice Flick essentially agrees with the same principles but comes to a different result and we say it has got to a point where those out there will benefit from this Court applying the principles and seeing how this Court thinks they should be applied in a myriad of eight different fact situations.

FRENCH CJ: Given the inescapably evaluative character of the judgment concerning the effect of the combined mistranslations on the “fairness of the hearing”, it really does look as though once one has gone beyond the comprehensive treatment in the Full Federal Court, you are really asking for another throw of the dice, as it were, on the evaluative process in the High Court – I suppose this is another way of putting what Justice Bell has put to you – how can it rise any higher than that, just another evaluative decision from another group of judges?

MR LLOYD: Well, I suppose in any area where there is sort of a high level abstract principle, it develops through repetition of cases and there are some similarities from case to case. We say that the line is being drawn at the wrong point, and I accept that this Court will have to come in and apply it and it will just be another set of evaluative judgments, but we say, with the greatest respect to the majority in the court below, there were some important errors and by saying that they were not enough to amount to a lack of fairness, then that sets the bar for every single judge and every Federal Circuit Court judge to say, well, these errors of this kind, of this magnitude are not serious enough.

If I could just take the Court to two, obviously if the Court is not minded to think that the errors are sufficiently serious to have a real prospect of success, then what I have said in any event will never go anywhere. The first one I take the Court to is what is so-called “Mistranslation 3” which is on page 155. The passage runs for four pages, I will not take the Court through all of that, it is far too long in the time available. There are many errors throughout the passage but if one just starts from the beginning, we have the reviewer saying:

It’s not unusual to have these matters passed through agents . . . through travel agents or travel brokers or people like that. It’s not unusual to have passport matters handled by intermediaries –

So the proposition is this is commonplace enough. Then that is interpreted without any reference to the intermediaries -

This is how it is done usually. This was not done unusually -

Then the applicant, bearing in mind his claim was that he did not do it personally because he was feared, as he comes to develop -

Normally if to obtain a new passport, the old passport has to be handed over -

In context it is clear that he means personally because he then goes on to say -

But I did not go in person. I gave it to another person -

so that is what he is saying back. The interpreter just says -

Usually if you want to renew a new passport you always have to submit your old passport -

which does not capture the flavour of that. The reviewer obviously did not find that entirely nourishing, so at about line 41 -

My point though is that if that were not an acceptable practice –

so a double negative, it is not unacceptable practice - - -

FRENCH CJ: It is “not an acceptable practice”.

MR LLOYD: Sorry, “not an acceptable practice”, so:

My point though is that if that were not an acceptable practice the passport would not be replaced -

so the implication is he thinks, well, you have got a new passport, it must be acceptable to go through an intermediary. The interpreter says -

When you look at this, this is not something that is in common practice -

so that is the opposite of what the reviewer was asking. The applicant says -

What is that?

Which is construed as “Which one?” The reviewer is then again trying to put it -

It is not an unacceptable practice in Sri Lanka for you to return a damaged passport through an intermediary or through some service to have it replaced -

Then the interpreter says -

When you look at Sri Lanka this is not something in practice -

which again suggests almost the opposite of what is being put to him, and my client then agrees with that but he is agreeing with the opposite. Now, I accept that as the misunderstanding goes on it eventually unravels and it becomes clear what my client is saying. But then when one goes to paragraph 88, there is a summary of how the reviewer dealt with that and there is paragraph [95] there. We say it is clear from that paragraph [95] that the reviewer thought my client had changed his position from originally saying one thing and then backing down which all has implications for credit.

Justice Robertson’s response to that at paragraph 91 “has two elements”. First of all he says it was “a side issue”. Well, it might be acceptable as a side issue in the sense that we cannot say it definitely led to a wrong decision but it could have affected credit. Then his Honour – the second part of the reason is he said:

there was enough in the interview unaffected by mistranslation to found what might be read as observations by the Reviewer going to the appellant’s credit –

So that is his Honour in effect saying he has read the rest of it and he thinks, notwithstanding that the reviewer could have formed that view anyway, and so he concludes at the end of 92:

Whether or not the Reviewer could have come to a different conclusion of fact or made a mistake of fact is not the point.

Well, if by his Honour saying “could have come to a different conclusion” if there had have been better interpretation, we say that is to the point. That is very much to our point – is that it is important that maybe our client would have had a different perspective or the reviewer would have had a different perspective on credit.

BELL J: Is not important to the analysis that Justice Robertson makes of mistranslation 3 the first reason that he advances for a conclusion that this was not of itself or taken with the other mistranslations productive of an unfair hearing, that it was a side issue because the main question was the apparent inconsistency between having a forged passport, however one had obtained the forged passport, and being able to use that forged passport on many occasions to travel in and out of Sri Lanka. Now, on the face of it, one can see some considerable force to that analysis.

MR LLOYD: I accept that it is maybe not as important an issue but this Court has said – I think Chief Justice Gleeson in Aala noted the amorphous nature of credit findings. This is an issue which maybe it was not critical in the sort of logical fact finding that led to the result on critical questions of

fact but it still creates an impression. Well, that is all I say about translation 3. If I can just say one thing about mistranslation 5; in that case the reviewer twice says – and one sees it in the first and third passages extracted in paragraph 98 - the reviewer is characterising my client’s evidence as “evading discussion”. Now, that is not interpreted so my client does not get an opportunity to answer this concern or assuage the concern about evasion because they do not know about it. Justice Robertson at 100 says it was really:

no more than the expression of a passing frustration on the part of the Reviewer and provides an insufficient basis on which to conclude that the non-translation denied the appellant procedural fairness.

So it was expressed as a conclusion against the high level abstract test. We say, well, my client did not get a chance to assuage that concern and so his Honour, with respect, has drawn the line at the wrong place. That should have been enough, we say.

BELL J: His Honour’s assessment based on the transcription of a four hour videorecorded interview, is that right?

MR LLOYD: That is so. I mean, of course, the four hours is through the interpretation so it is slow. Mistranslation 3 that I have already taken the Court to goes for four pages which through the interpreter would have lasted quite a while, for probably 20 minutes or so. It is not like – although it is characterised by the majority as being intermittent and we accept that it was not continuous but there were large slabs.

We would say that his Honour Justice Flick at page 147 in paragraph 58 and perhaps more particularly 59 identified four features which were sufficient and his Honour drew the line in the right place. Now, I appreciate that I am asking for special leave to ask the Court to have another go at it but we just say in this area, it is an expanding area of migration litigation, and that there would be value for the Court to look at and express views in the area. May it please the Court.

FRENCH CJ: Thank you. Yes, we will not need to trouble you, Mr Reilly.

In our opinion, the matters of which the applicant complains in the Full Court’s reasoning to its conclusion that mistranslations in the Refugee Review Tribunal did not give rise to a breach of procedural fairness do not disclose a question of general importance which will warrant the grant of special leave, nor is the Court’s approach to the evaluation of the asserted errors in translation attended with sufficient doubt to warrant the grant of special leave. Special leave will be refused with costs.

AT 11.01 AM THE MATTER WAS CONCLUDED