BMS15 v Minister for Immigration
[2016] FCCA 2173
•23 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMS15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2173 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming that there were interpretation problems both at the interview before the Minister’s delegate and before the Tribunal – no jurisdictional error by the Tribunal. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425 |
| Cases cited: AZAAL v Minister for Immigration & Anor [2009] FMCA 23 Minister for Immigration v WACO (2003) 131 FCR 511 SZLQV v Minister for Immigration & Anor [2008] FMCA 247 |
| Applicant: | BMS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2056 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore |
ORDERS
The application filed 23 July 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2056 of 2015
| BMS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), made on 21 June 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Turkey and had claimed protection on the basis of his Kurdish ethnicity. Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 16 August 2016. Background
The applicant, a citizen of Turkey, arrived in Australia on 20 April 2009, on a student (class TU) (subclass 570) visa.[1] On 2 December 2013, the applicant applied for a protection visa.[2] On 10 June 2014, a delegate for the Minister refused to grant the applicant a protection visa.[3]
[1] Court Book (CB) 80.
[2] CB 15.
[3] CB 80-95.
On 25 June 2014 the applicant made an application to the Tribunal for review of the delegate’s decision.[4] On 23 February 2015, the applicant was invited to attend a hearing before the Tribunal.[5] The applicant provided a response to the hearing invitation on 3 March 2015.[6] That response requested a Turkish interpreter.[7] On 21 May 2015, the applicant appeared at a hearing before the Tribunal.[8] The applicant’s migration agent also attended the hearing.[9] On 21 June 2015 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa.[10]
[4] CB 96-101.
[5] CB 319.
[6] CB 321.
[7] The response to the hearing invitation did not request that an interpreter appear in person ; CB 321.
[8] CB 325.
[9] CB 325.
[10] CB 341-375.
Applicant’s claims
The applicant claimed to fear harm because of his ethnicity as an Alevi Kurd and his Alevi religion. He also claimed to fear harm because of his political opinion as he had attended gatherings and distributed leaflets for “leftists”.
In support of his application, the applicant referred in his evidence (as set out in his protection visa application and statutory declarations, and at the hearing before the Tribunal[11] to the following claimed incidents:
a)he was abused and beaten at school including an incident where he was attacked by three students when he was 13 and another incident where he was stabbed in the thigh with a compass;
b)he was beaten by police and questioned regarding the PKK after peacefully demonstrating in front of his school in 1998;
c)he was beaten by a group of individuals with sticks in 1998 on a basketball field in Istanbul;
d)he was walking with two Kurdish friends when they were involved in a fight with four or five fascists;
e)in 2005, he was waiting at a bus station and was identified and beaten by six or seven people; and
f)various incidents that allegedly occurred, involving his brothers and father.
[11] see CB 13-27, 35-43, 313-318 and 341-375.
The applicant also claimed that as an Alevi Kurd, he would be unable to obtain employment. He also gave evidence that he was involved in peaceful protests and did not want any further involvement in politics.
Tribunal decision
Based on the country information before it and the facts of the applicant’s case, the Tribunal found that there was not a real chance that the applicant would face persecution in Turkey as an Alevi Kurd or that there were substantial grounds for believing that there was a real risk he would face significant harm for any reason.[12]
[12] CB 373-374 at [119].
The Tribunal found, noting the applicant’s multiple entries and exits from Turkey using a valid Turkish passport, that the applicant was not of adverse interest to the Turkish authorities.[13] Given this lack of interest by the authorities, together with the applicant’s non-existent political profile and lengthy absence from Turkey, the Tribunal found that the applicant did not have a profile as a result of which there was a real chance he would face persecution for a Convention reason in Turkey.[14]
[13] CB 373 at [117].
[14] CB 374 at [122].
The Tribunal accepted that the applicant might face low level discrimination in Turkey as an Alevi Kurd but found that this discrimination would not amount to persecution on an individual or cumulative basis.[15] However, the Tribunal found that based on the country information and the applicant’s evidence that he had no political profile, there was no real chance that he would suffer serious harm due to political, moral or religious convictions or matters of conscience and further that there were no substantial grounds for believing that there was a real risk he would suffer significant harm in Turkey for any such reasons.[16]
[15] CB 374 at [123].
[16] CB 374 at [124], [127].
In relation to the applicant’s evidence to have faced harm in Turkey the Tribunal found it was inconsistent and concluded that the applicant was not credible in relation to the claimed harm.[17] The Tribunal found that the applicant’s credibility was so seriously undermined that there was no credible or trustworthy evidence before the Tribunal of the applicant facing serious harm for any reasons in Turkey.[18]
[17] CB 374 at [125].
[18] CB 374 at [125].
The Tribunal found that the applicant’s delay in claiming protection and in leaving Turkey was inconsistent with a subjective fear of persecution.[19]
[19] CB 374 at [126].
Having considered the applicant’s claims individually and cumulatively, the Tribunal found that there was no real chance that the applicant would face persecution for any Convention reason.[20] For the same reasons, the Tribunal was not satisfied on the evidence that the applicant faced a real risk of significant harm.[21] Accordingly, the Tribunal affirmed the decision under review.[22]
[20] CB 375 at [128]-[129].
[21] CB 375 at [130].
[22] CB 375 at [131]-[133].
Present proceedings
These proceedings began with a judicial review application filed on 23 July 2015. The applicant continues to rely upon that application. The grounds in that application are in narrative form, but are summarised in paragraph 14 of the Minister’s submissions which I adopt.
The applicant advances five grounds of review which take issue with the standard of interpretation. The grounds refer to the “immigration department” and “immigration officer”. The applicant contends that he requested a face-to-face interpreter but was provided with a telephone interpreter which he claims was “detrimental” to the hearing process. In addition the applicant contends that he and the interpreter were always “misunderstanding” each other and that the interpreter “messed up” his communication.
The application is supported by two affidavits by the applicant. The first affidavit filed with the application I received as a submission. I received the second affidavit filed on 19 November 2015 subject to relevance.
I also received as evidence the court book filed on 9 August 2015. Only the Minister filed written submissions in accordance with procedural orders made by a registrar. I invited oral submissions from the applicant today.
The applicant complains about interpretation problems at the hearing before the Minister’s delegate. As I explained to the applicant, any such problems are beyond the scope of this proceeding. The delegate’s decision was reviewable by the Tribunal and was a primary decision as defined in the Migration Act. This Court has no jurisdiction to review that decision.
The applicant also refers to interpretation problems at the Tribunal hearing. The extent of those problems appears to be that some words were missing from the translation into English at that hearing. Those words are set out at Annexure B to the applicant’s second affidavit as follows:
1411293.1 copy
1. There are a lot of kurds like myself.They don t speak kurcish.
2. After all happened .I had nodeal of Kurdish.only time I had learned language to spent englih and some Russian.
1411293.2
1.jop application .I say hidir.they don t hire me.
(errors in original)
In my view, those words do not point to, let alone establish, any jurisdictional error.
First, if those words were not translated, that does not establish that the general standard of interpretation at the Tribunal hearing was inadequate. The sentences appear to be isolated and inconsequential. Secondly, there is nothing to indicate that any lack of awareness by the Tribunal of those words had any impact on the Tribunal decision. I am satisfied that the interpretation problems pointed to by the applicant do not establish any issue of a breach of s.425 of the Migration Act 1958 (Cth) (Migration Act).
In other respects, I agree with the Minister’s submissions.
Insofar as it can be construed that the grounds of application take issue with the standard of interpretation before the Tribunal, there is no evidence before the Court that the interpreter did not appear in person at the Tribunal hearing. Moreover, the applicant was represented by a migration agent before the Tribunal who provided post-hearing evidence and submissions which did not seek to cavil with the standard of interpretation at the Tribunal hearing.
To the extent that it can be inferred that the applicant contends that he was denied a hearing under s.425 of the Migration Act by reason of the quality of the interpretation received, whether any inadequacy in translation deprives an applicant of the opportunity to have a hearing in accordance with s.425 of the Migration Act involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole.[23]
[23] SZHEW v Minister for Immigration [2009] FCA 783 at [52].
Even on the applicant’s own evidence, he has not identified how the sentences set out above, if they were missing from the interpretation before the Tribunal, related to a matter of significance to his claims and have a sufficient connection to the Tribunal’s decision. In the absence of any evidence to indicate to the contrary, the applicant has not established that the standard of interpretation at the Tribunal hearing was so inadequate that he was prevented from giving evidence to the Tribunal or that any errors made in the interpretation at the Tribunal hearing were material to the conclusion of the Tribunal and adverse to the applicant.[24] Accordingly, it cannot be said that the hearing before the Tribunal was not “real and meaningful”.[25]
[24] Appellant P119/2002 [2003] FCAFC 230 at [16]-[17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration (1999) 92 FCR 6 at [38], [45]; Soltanyzand v Minister for Immigration [2001] FCA 1168; Minister for Immigration v WACO (2003) 131 FCR 511 at [69]; SZOYU v Minister for Immigration [2012] FCA 936 at [29]-[32].
[25] Appellant P119/2002 [2003] FCAFC 230 at [16].
Insofar as the grounds of the application contend that the Tribunal did not take “enough time” to understand the applicant’s situation, this contention is without substance. The Tribunal’s decision demonstrates a clear and thorough consideration of the claims and material before it. The Tribunal’s findings, including the comprehensive adverse credibility findings, were open to it on the evidence before it. The applicant has not identified any manner in which the Tribunal has failed to discharge its statutory obligations under the Migration Act.
The Minister notes that at [130][26] of its decision, the Tribunal refers to the risk that the applicant would suffer harm “in Iran” and his removal from Australia “to Iran”. The Minister submits and I accept that this is clearly a typographical error which did not affect the exercise of power by the Tribunal.[27] The remainder of the Tribunal decision clearly indicates that the Tribunal understood the applicant was making claims in relation to Turkey and assessed the risk of harm if he were to return to Turkey notwithstanding the isolated reference to Iran at [130]. Such an isolated reference which does not affect the reasoning of the Tribunal, will not amount to jurisdictional error.[28] The Tribunal undertook an “un-distracted, focussed and deliberative assessment of only those facts and circumstances referable to the case”.[29] This is not a case where the merits of the applicant’s claims were “infused with notions which are erroneous and thus irrelevant to the applicant’s case”.[30]
[26] CB 375.
[27] cf. SZRBA v Minister for Immigration (2014) 314 ALR 146; SZTGE v Minister for Immigration & Anor [2014] FCCA 1458.
[28] SZLQV v Minister for Immigration & Anor [2008] FMCA 247 at [21]-[24]; AZAAL v Minister for Immigration & Anor [2009] FMCA 23 at [29]-[34]; SZOMG v Minister for Immigration & Anor [2010] FMCA 1016 at [31]-[33].
[29] SZIFI v Minister for Immigration [2007] FCA 63 at [44].
[30] SZIFI v Minister for Immigration [2007] FCA 63 at [33].
I find that the applicant has failed to demonstrate that the decision of the Tribunal was affected by any jurisdictional error. The decision was therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,800. The applicant asked questions concerning his options for payment of the costs, but did not oppose a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 August 2016
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