High Court of Australia (Source: Wikipedia)
When people arrive in countries like Australia, seeking to be recognised as refugees and offered protection, it is obviously important that they are able to communicate their experiences and respond to any doubts the authorities may have about their claims. Given the centrality of language and communication, this area has created interest for sociolinguists in a variety of refugee-receiving countries around the world. Indeed, it is the focus of my own PhD research, here in Australia.
In reviewing the literature, I’ve come across a burgeoning body of research from Australia and abroad that centres on issues related to intercultural communication, interpreting and language analysis. These studies identify significant challenges for asylum seekers and other participants in the system.
However, one asylum seeker’s recent appeal to the Federal Court of Australia brought up an even more fundamental concern. Beyond the provision of interpreters and training in cultural awareness, there seems to be a much more basic challenge facing those seeking to access the justice system: knowing the language and the culture of the court and the law itself. Judicial officers, who are in a superior position in terms of their knowledge, therefore arguably have a heightened responsibility to facilitate unrepresented parties as they attempt to navigate what can be a very “foreign” environment.
SZWBH v Minister for Immigration and Border Protection sets out the experience of an asylum seeker who had sought judicial review after his application for a protection visa was unsuccessful. In Australia, if a visa application is unsuccessful, the applicant can apply for a judicial review of this decision in the court. The court cannot consider the merits of the application. Instead, it acts as a “check and balance” on the executive wing of government, assessing whether decisions made by government officials – including those made by the Immigration Department – were made following the legally required procedures (Crock & Berg, 2011, p. 613). If a migration decision is not reached in the appropriate manner, this could constitute what is known in legal language as “jurisdictional error”, requiring the decision to be made again.
The Sri Lankan asylum seeker, known as “SZWBH” (in Australia, applicants for protection visas are no longer referred to by their names in published decisions), had no legal assistance or representation when he sought review in the Federal Circuit Court, but was provided with an interpreter. After his application for review was summarily dismissed, he appealed to the Full Court of the Federal Court.
The later Federal Court appeal decision sets out the earlier exchange between SZWBH and the Federal Circuit Court judge, Justice Street.
HIS HONOUR: SZWBH, the court has looked at the grounds in your application and having read the decision of the tribunal, it doesn’t appear to have a sufficient prospect of success to warrant a further hearing date and the court is minded to consider whether your application should be summarily dismissed now. To make clear the position, I have a concern that the grounds you’ve identified do not properly identify any jurisdictional error. Is there anything you wish to put to me as to why there is a jurisdictional error by the tribunal?
THE INTERPRETER: [For court proceedings involving interpreters, the interpretation in English, as recorded in the transcript, is the accepted official record of the communication as it took place, to the exclusion of the other language(s) spoken by participants]. Yes, I wish to put to the court certain things.
HIS HONOUR: Now is your opportunity to do so.
THE INTERPRETER: I described to the Department of Immigration that my younger brother, younger sister and her husband were killed. I also submitted that certificates relevant to those killings and I put forward a claim stating that because of those incidents the police will be targeting me as I was seen as being opposed to the police.
HIS HONOUR: Yes.
THE INTERPRETER: Therefore, I plead to this court that I have come here to seek refuge and protection, and therefore, I urge this court to grant me protection and allow me to stay in this country.
HIS HONOUR: Is there anything else you want to say as to why there was a jurisdictional error?
THE INTERPRETER: I have certain doubts whether the tribunal delved into an inquiry as to my younger brother was killed.
HIS HONOUR: Yes.
THE INTERPRETER: There are more – therefore, I ask your Honour to consider my claims and look into the decision and make a favourable decision.
HIS HONOUR: Yes. I’m confined to jurisdictional error by the tribunal. Is there anything else you can put to me as to why there’s jurisdictional error?
THE INTERPRETER: I do not have anything further to tell your Honour.
HIS HONOUR: Thank you SZWBH.
Refugees at sea (Source: Wikipedia)
Demonstrating respect for the judicial process, the solicitor representing the Minister stepped in to acknowledge SZWBH’s disadvantageous position. She suggested that he may need more time to access all relevant documents and offered to help him put together a court book, given the Minister’s superior access to the relevant material. Nonetheless, without giving the parties the opportunity to do this, the judge summarily dismissed the case, arguing that the proceedings had “no reasonable prospect of success”. The whole Federal Circuit Court proceedings were complete within 30 minutes of when they had begun.
With the help of pro bono legal assistance, SZWBH appealed this decision to the Federal Court. The response of Justices Mansfield, Tracey and Mortimer was close to scathing. They pointed out that it was highly unusual for a judge to summarily dismiss a case at the first hearing, without giving the party any opportunity to prepare a proper response. They argued that where the party involved was “an unrepresented Tamil asylum seeker” this was offensive to the Constitutional powers and responsibilities of the judiciary (para 55).
The Federal Court especially emphasised the challenges SZWBH faced in navigating the court system, arguing that:
The grounds on which the appellant made his application to the FCC did not clearly allege jurisdictional error on the part of the Tribunal. This is, perhaps, not surprising given that the appellant was acting without legal assistance and had an imperfect understanding of the English language. So much may be inferred from the terms of the application and the fact that the services of an interpreter were required at the hearing. It is also relevant to note, as the Tribunal had done, that the appellant had been a cleaner in Sri Lanka and had only been educated to year 11 standard (para 25).
Even as a qualified lawyer and recent law student, I can admit that I find explaining jurisdictional error difficult. In fact, Crock and Berg (2011) argue that articulating a clear explanation of jurisdictional error is “one of the most difficult tasks for any administrative lawyer” (p. 645). It is no small wonder then that SZWBH struggled to employ the term when arguing his case.
Fortunately, the Court recognised the attempts SZWBH had made to communicate his arguments and the very real challenges he faced in doing so in a way that strictly employed formal legal language. The Federal Court judges neatly summarised the situation:
Serious issues relating to the procedural fairness of proceedings must arise in circumstances such as the present in which an unrepresented applicant whose primary language is not English and who may be assumed to be unfamiliar with curial processes is called on, without notice, to mount arguments resisting the summary dismissal of his application (para 32).
Happily, the Full Federal Court was therefore able to right the wrong of the Federal Circuit Court judge’s decision, and remit the review back to a different judge to be made again. However, this case makes obvious the very real difficulties that may be faced by unrepresented parties, especially in situations where the judge apparently desires a case to be dealt with “expeditiously”. SZWBH’s experience demonstrates that equal access to justice requires much more than the provision of interpreting and that unfortunately, sometimes what is lawful may be far from fair or just.
Further Reading
Crock, M. & Berg, L. (2011). Immigration, Refugees and Forced Migration: Law, policy and practice in Australia Annandale: The Federation Press
SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88
SZWBH v Minister for Immigration & Anor [2015] FCCA 436
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An update: a recent Honours Thesis by Keyvan Dorostkar has explored the variation in refugee judicial review decisions in the Federal Circuit Court. He finds a huge variation in success rates between different judges, and argues:
“it can reasonably be expected that a level of natural variation and discrepancy exists in patterns of judicial decision-making from to judge to judge, without conceding that judicial impartiality and the rule of law have been violated. Inconsistencies in decision-making beyond the acceptable levels, however, are theoretically unjustifiable and practically create the perception that the outcome of cases depend more on the luck of which judge is assigned to the case. In this paper, I argue that the acceptable levels of inconsistency are exceeded when public confidence starts to diminish. More transparency in the judiciary can be one of many reform projects that can maintain public confidence despite the broad patterns of inconsistency.”
The thesis can be downloaded from SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3536740
While statistics alone cannot found a claim of unfairness or bias (and no one seems to be suggesting that this is how statistics were used in the case above), one aspect a court considers in a bias application is the perception of bias. If a judge has a track record that suggests a tendency to be unfair in certain circumstances, that may well give rise to a perception of bias. That alone is a big problem, without having to then assess whether in a particular case the judge was or was not actually biased.
True Anders,
Fortunately, in the case of SZWBH we can turn to the expert legal analysis of the superior court (the Full Federal Court). SZWBH was among the fortunate minority who manage to access pro bono legal assistance for an appeal. This created the opportunity for the higher authority (the Full Federal Court) to assess the decision making of the Federal Circuit Court judge, leading to some very harsh criticisms of his conduct in summarily dismissing the case.
Well here we go again making reference to statistics.
But the fact of the matter is that we have no idea how “the 8 other FCCA judges” would have ruled had they had the same cases. We just don’t know, do we?
Also, there is an important theoretical question buried here.
If two judges come to different conclusions in seemingly identical cases, must we then necessarily assume that one of them is wrong? There was an interesting discussion in “Law and Philosophy” (if I remember correctly) many years ago about this question and there was fair consensus that such a conclusion is invalid.
Anders
More interesting are the numbers of summary dismissals and consequently how fast the judge has gotten through his caseload), in contrast with the 8 other FCCA judges. The ABC reported that “Between January and June this year, he delivered rulings in 286 cases. The other eight judges who sit on the Federal Circuit Court in Sydney delivered 357 cases combined.”
Indeed, for SZWBH, this was the real sore point. There are strict time restrictions on appealing to the court, so asylum seekers must put together their basic application very quickly. Then they gather all the documents on which they are basing their claim. These documents are often assembled by the immigration department and provided to the court after the initial hearing date. This is common practice. However, instead of giving the parties an opportunity to prepare the documents, the judge dismissed the case at the very first hearing, in just 30 minutes.
This means the judge found that the case has no reasonable prospect of success without even waiting to see all the relevant evidence. As the FFC argued, “Legal representatives who are familiar with court processes..rightly will not expect that a judge would, without notice and of her or his own motion, deprive parties to a proceeding of any further time to regularise, refine and complete the case and contentions they wish to advance.”
For an unrepresented asylum seeker this was unthinkable, hence the FFC’s criticism and remitting the case to a different FCCA judge
Hi Anders,
I suppose it is important to lay out a few details about the context. First of all, the issue we are dealing with is one in which there is a claim of apprehended bias, as opposed to actual bias. The test for this is: “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”. Considerations may include past acts or comments of a judge (or other decision maker), or perhaps a particular membership or position they hold or have held.
This test would be applied before or during a particular case, rather than after it has been completed. Of course, we can look to past cases where relevant to support our argument. While all commentators note that the use of statistical data to support a claim of apprehended bias is extremely unusual, there does not appear any explicit legal bar on doing so. See: http://www.judcom.nsw.gov.au/publications/benchbks/civil/disqualification_for_bias.html
It is impossible to determine the question of fairness or bias without looking into the details of every single case. Fairness and questions of bias are not based on statistics. What is really worrying in this case is the fact that some people, including some who should know better, seem to think so.
“The mischief that would be created by the use of this type of statistical analysis is obvious, and it does not provide any cogent or rational foundation to identify conduct to which the fair-minded observer test should be applied.” (https://jade.barnet.com.au/Jade.html#article=403676)
Exactly! This is the real problem!
For those interested, this decision and the other decisions made by this judge have come under continued scrutiny, with the most recent criticism coming from Professor Matthew Groves (Monash University) making headlines just yesterday. See: http://www.abc.net.au/news/2015-09-10/federal-court-judge-alexander-street-accused-of-bias/6764704 http://www.abc.net.au/pm/content/2015/s4310196.htm?site=westqld
Further, there is nothing to indicate a problem with the interpreter. And after discussing the case with an expert in this field, they thought that really the points made by the applicant in the exchange included in the judgment could easily be construed as examples of jurisdictional error – eg he argues that the Tribunal appears not to have taken into consideration some important information (an example of jurisdictional error). However, the judge seemed to not want to accept this unless the applicant explicitly used legal language to spell out his argument.
So it could perhaps be argued that this is an example where the participant in a position of power creates very specific rules about how communication must take place to effectively control or limit the possible outcomes.
Hi Livia,
I would argue that at the best of times, the language and the culture of the court can be intimidating and feel quite “foreign” to those interacting with it. This is without considering what happens when English is not the first language of a participant. A conference I attended earlier this year delved into some of these issues – https://www.languageonthemove.com/language-migration-social-justice/we-all-have-a-culture-we-all-speak-a-language-the-australian-legal-system-discusses-diversity
However, in this particular case, it has been argued by others that the judge – while putting forward a legal argument – made quite a flawed decision. This was the position of the Federal Court that overturned his decision. This was also the opinion of the lawyers of another applicant, who went so far as to argue that this particular judge demonstrated apprehended bias (ie he seemed to be predisposed to dismiss asylum seeker appeals, without actually considering them with an open mind). They argued this based on statistics of his previous decisions – see the link in my previous comment. This is a similar argument to the one being made against Dyson Heydon and why he should step down as Commissioner of the Royal Commission into Trade Unions http://www.theguardian.com/australia-news/2015/aug/17/dyson-heydon-overlooked-liberal-link-but-gave-commission-witnesses-less-leeway
Thank you for this blog post, Laura!
Knowing near to nothing on this topic, I wonder, does the fault lie with the judge, with the interpreter, or with the legal system in general? And where does the literature say the issue needs to start being tackled?
All the best with your research! I look forward to reading more posts.
Livia
^That should read: “due to a lack of impartiality”
Many thanks to the colleagues who directed me towards these cases.
This is not an isolated case. Other recent appeals have dealt with summary dismissals of asylum seekers on the first court date, by the same judge. See, eg.: https://jade.barnet.com.au/Jade.html#article=400237 . In that case, the applicant had legal assistance.
In another case, counsel for the applicant argued for recusal (that the judge was unqualified to hear the case, due to impartiality) based on a statistical analysis showing that an overwhelming number of other cases had been dealt with in the same way – 252 of 254 had been unsuccessful. Of these, 163 had been dismissed on the first court date. The applicant argued that these figures suggested an apprehended bias in the judge. Perhaps unsurprisingly, the judge did not accept this argument. See: https://jade.barnet.com.au/Jade.html#article=403676