FOY17 v Minister for Immigration & Anor [2018] FCCA 1798 (4 July 2018)

Last Updated: 4 September 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOY17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1798

Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority acted unreasonably in its exercise of the discretion under s 473DC of the Act – whether the Authority failed to perform its review function – no jurisdictional error made out – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.36, 473DC, 476.

Cases cited: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142. WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131.

Applicant:

FOY17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3934 of 2017

Judgment of:

Judge Street

Hearing date:

4 July 2018

Date of Last Submission:

4 July 2018

Delivered at:

Sydney

Delivered on:

4 July 2018

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones Parish Patience Lawyers

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

(1) Direct that the extract of the recordings from which the recording is being played to the Court be placed on a USB stick and delivered to the Court’s associate by close of business on 6 July 2018 and will be marked Exhibit B.
(2) The application is dismissed.
(3) The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 3934 of 2017

FOY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 21 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant arrived in Australian on 5 February 2013 as an unauthorised maritime arrival. The applicant in summary claimed to be hiding from the Awami League due to his and his family’s involvement with the Bangladesh Nationalist Party (“BNP”) and his involvement with a tailoring union. The applicant claimed that he had been attacked and threatened and that a friend of his who was also a member of the BNP had been killed on 22 April 2015. The applicant claimed that he was unable to return to the family home as his family were also attacked and Awami League members continued to visit and make threats and demand money.
3. On 23 March 2017, the applicant was invited to attend an interview with the Department. The applicant attended the interview on 6 April 2017 and provided documents to the delegate on 26 April 2017. The applicant’s representative provided further documents on 23 June 2017. The delegate refused the applicant’s application for a Safe Haven Enterprise visa.

Interview conducted with the Department

4. The transcript of the recording of the interview with the Department has been put into evidence and extracts from the recording at particular points identified in support of an argument that there was a failure by the Authority to properly exercise its powers under s 473DC of the Act have been played to the Court. The transcript reveals at the commencement the interviewer raising with the applicant whether the applicant could understand the interpreter and the applicant confirming that the applicant could. The transcript and the recording both reveal the applicant answering at times in English. No complaint was made by the applicant during the transcript of the interview and having read the transcript and listened to the extracts of the recording, I do not accept that at any time as alleged that the interpreter was interrupting and jumping in before the applicant had finished. Further, it is apparent that the applicant understood what was occurring from reading the transcript and the answers are not said, in any material respect, to be inaccurate or incorrect.
5. Criticism is made that on occasions, rather than referring to the first person, the answers are given by reference to the third person. In that regard some questions asked by the interviewer were put in the third person. The reference to the third person has not in any way materially changed the substance of the question or answer or materially affected the ability of the applicant to properly adduce his evidence and submissions. I do not accept that anywhere in the transcript or interview there is any material transcription error in respect of the substance of the applicant’s claims.
6. The criticism that the interpreter was summarising instead of translating referred to passages in which there was a protracted answer and reflect clarification being sought by the interpreter in the course of that protracted answer. That is not one in respect of which any error is identified in the summarised response and I do not accept that the clarification apparent in the course of the recordings played gave rise to any denial of a proper opportunity for the applicant to present his evidence and submissions. I do not accept that it was correct to suggest that the interpreter was not translating what was said in circumstances where the translator sought to clarify what was being said.
7. It is apparent from having heard the recording that what is translated was the substance of what the applicant had in fact said. Whilst it is correct that there has been some discussion by the interpreter with the applicant in the course of giving an answer, for the reasons I’ve already given it is not apparent that there has been any material failure to accurately interpret what was said and even taking the transcript as a whole. Taking into account the principles identified by the learned Allsop CJ in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [10], there is no unfairness evident from the transcript or the recordings in the present case to support a finding that there was any material deficiency or any material professional deficiency in the standard of the translation and interpreting that took place at the interview.
8. The Court has also taken into account what was said in that regard in WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]. This case is not one where there have been established errors that were material so as to cause any unfairness in the conduct of the interview as contended on behalf of the applicant. It is also material in that regard that no complaint was raised by the applicant. This was also a consideration identified and taken into account by the Authority in response to the issue of interpretation raised with the Authority after the Authority had sent out the letter following the adverse decision by the delegate inviting the applicant to comment.
9. By email dated 31 July 2018, the applicant responded to the letter from the Authority and did make complaints in respect of the interpretation and alleged that the Bengali interpreter was very poor at getting the applicant’s point across to the interviewer. It was also suggested the interpreter was biased in some answers. No basis for that allegation has been identified. The standard of the interpretation and the answers do not in any way support conduct by reason of which a fair minded lay observer might reasonably apprehend that the interpreter was in some way biased in the interpretation that took place, nor was any such argument advanced by Mr Jones.
10. The email suggested that the applicant would talk about bad things the government party would do and that the interpreter was hesitant or unhappy to explain this. No example of any such failure to interpret what the applicant had said has been identified. The submissions referred to the finding by the delegate that the applicant’s involvement in the BNP were vague and lacked detail, and the applicant contended, “I would also explain my situation in detail to the interpreter and the interpreter would only give few words answer back to the case manager.” That proposition also is not supported by what is in the transcript or the recording that was played.
11. The proposition was advanced that in the interview there was alleged there was confusion by the delegate that the applicant got confused regarding the time his father was attacked and the submission advanced that the confusion came from the translation from the interpreter. No such passage in the transcript or the recording supports that proposition.
12. The submission also referred to the delegate in which, “During the interview the case manager would ask a long question to the interpreter and the interpreter would only ask me a very short question and this would lead to shorter answers.” That proposition is not supported by the transcript or the recording. It was also advanced that the interview was one in which the applicant had given more detailed answers and that the delegate had been ill-informed in the interview because of the interpreter. Again, no example of any such failure is identified in the transcript or in the recording. The proposition was advanced in the submission that translations between the interviewer and the applicant were lost. Again, no such example of any such proposition has been identified in the transcript or in the recording.

The Authority

13. The Authority in its reasons referred to the background to the visa application and referred to the material provided under s 473CB of the Act. The Authority referred to the email dated 31 July 2017 claiming that the interpreting was very poor and did not convey the applicant’s points. The Authority referred to the applicant expressing concern that the interpreter was a supporter of the government party in Bangladesh and therefore biased against the applicant and that the applicant was concerned that the interpreter did not fully interpret his claims, as the applicant explained the situation in detail but the interpreter would only give a few words back to the delegate and that the delegate was ill-informed during the interview due to the interpreter.
14. The Authority expressly turned to consider whether it should exercise the powers under s 473DC of the Act and identified the absence of a duty to get, request or accept new information, although it has the discretion to invite a person to give new information in limited circumstances. The Authority expressly referred to the fact that the applicant was advised in the interview at the start that if he had any difficulty in understanding the interpreter or thought the interpreter did not understand him then he could advise the delegate. The Authority correctly identified that there was no indication from the interview recording that the delegate had issues with the interpreting and the applicant did not indicate at any stage of the interview that he had concerns with the interpreting or that his claims were misrepresented. The Authority noted that the applicant was also given ample opportunity to present his claims and indicated that he presented all his claims for protection and had responded to the concerns and questions raised by delegate. The Authority noted that sometimes the respondent would answer questions in English before the interpreter was able to interpret the question. Further, the Authority referred to the interpreter during the course of the interview also clarified with the applicant any responses that were unclear.
15. The Authority also referred to the fact that the applicant was given seven days with a possibility of an extension of time to present further information following the interview. The Authority noted there was no indication in the referred material that the applicant was subject to an unfair interview or poor interpreting and although the Authority has the discretion to invite the applicant to give new information at an interview, the Authority was not satisfied that the circumstances of the case warrant the exercise of the discretion.
16. The Authority, in affirming the decision under review, accepted the applicant’s father and uncle were BNP members and they had held positions with the local BNP during the time the BNP was in power and that his father may have been involved in ongoing political matters between 2006 and 2008. The Authority also accepted the applicant’s father may have been attacked in 2008 due to his involvement. The Authority, however, noted a number of confusing inconsistent claims that raised questions as to the applicant’s credibility. Those inconsistencies and the failure of the applicant to raise certain claims earlier in the application process led to the Authority not accepting the applicant’s claim that he was sent to his grandfather’s house in 2006 for safety, that he was with his father when his father was attacked in 2008, that his father was attacked a second time after 2010 where the BNP were involved and is still in hiding. The Authority was not satisfied the applicant ever had any involvement in the BNP or was attacked in 2011 due to his family associations.
17. The Authority did not accept the applicant had been a leader of the local tailoring union that led a strike for better workplace conditions or that he had to leave his work position due to issues with employers arising from his claimed representation of his colleagues. The Authority did not accept the applicant was fearful of union representatives, as the Authority concluded that claim to be implausible given that the applicant continued to work at the same workplace.
18. The Authority was not satisfied the applicant faced harm arising from workplace disputes, his status as a failed asylum seeker involving the Bangladesh police or anyone else on return to Bangladesh. The Authority found the applicant did not meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

19. The ground in the application is as follows:
    • 1. The Authority acted unreasonably in its exercise of the discretion under s 473DC.
    • Particulars
    • The Applicant complained of the poor interpreting at the interview with the delegate and also made a claim that the interpreter held a political bias against him, and that he believed that his more detailed answers would be subsequently translated from the recording and made available to the delegate. The Authority's failure to consider whether it should exercise its discretion to get further information about the interpreter and standard of interpreting lacked an evident and intelligible justification.
20. Mr Jones on behalf of the applicant took the Court to the examples upon which he relied to advance the proposition that the interpreting in the present case fell below the professional standard and that the applicant had, in substance, been denied the opportunity to properly present his evidence and submissions. In that regard, Mr Jones referred to the relevant authorities, as referred to above, and also took the Court to the particular passages and played the recordings said to support the interpreter jumping in before the applicant had finished, said to support the interpreter summarising instead of translating and said to support the interpreter discussing with the applicant and then summarising. For reasons earlier given I do not accept the proposition that the interpreter was jumping in before the applicant had finished. Further, it is apparent the applicant understood the interpreter and identified no difficulty with the interpreter in the course of interpretation.
21. It was open to the Authority to find on the material before it that there was no indication that the applicant was subject to an unfair interview or poor interpreting. Whilst there were occasions where the interpreter sought to clarify what was being said by the applicant, there is no basis to find that clarification gave rise to any inaccurate or incomplete material or incomplete interpretation of what the applicant had said. Mr Jones accepted that this was not a case where he could point to any material error and contended that it was the overall standard of interpretation and impact of the alleged problems that gave rise to the applicant not having had a proper chance to present his evidence and submissions.
22. Whilst it is apparent that the interpreter has used the third person on occasions in response to questions asked rather than the first person and that on occasions question were put by the interviewer in the third person, no example has been identified of any inaccurate or incorrect answer given in that regard. I do not accept that the interpreter engaged in summarising rather than translating as it was submitted by Mr Jones. The clarification that was engaged in by the interpreter in the course of the answers in the passages played does not reflect unprofessional interpreting or any inaccurate interpreting or in a summary then given in answer to what was said by the applicant. The applicant had a genuine and fair opportunity to give his claims and evidence to the interviewer and the standard of interpreting does not reflect any material unfairness or any material misunderstanding by the interviewer, interpreter or the applicant. The standard of interpreting overall was not inadequate or otherwise deficient.
23. The reasons given by the Authority not to exercise the power under s 473DC of the Act cannot be said to be legally unreasonable. The Authority’s decision not to exercise its powers under s 473DC of the Act cannot be said to lack an evident and intelligible justification and was open for the reasons given by the Authority as summarised above. No jurisdictional error as alleged in ground 1 is made out.

Conclusion

24. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 September 2018