DZAEQ v Minister for Immigration
[2015] FCCA 399
•25 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZAEQ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 399 |
| Catchwords: MIGRATION – Judicial review – jurisdictional error not identified by applicant – no error found. |
| Legislation: Migration Act 1958 (Cth), s.424A Federal Circuit Court Rules 2001, r.16.01 |
| Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 SZRHL v Minister for Immigration and Citizenship and Another (2013) 136 ALD 641 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FLC 818 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142 SZQUH v Minister for Immigration & Citizenship [2012] FCA 1265 SZNYF v Minister for Immigration and Citizenship [2010] FCA 839 SZQBN v Minister for Immigration and Citizenship [2013] FCA 276 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259 Aon Risk Management Services Ltd v Australian National University (2009) 239 CLR 175 Ex Parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | DZAEQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 34 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 18 February 2015 |
| Date of Last Submission: | 18 February 2015 |
| Delivered at: | Darwin |
| Delivered on: | 25 February 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr Anderson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 the application filed 14 August 2014 is dismissed.
That the applicant pay the respondents’ costs in the fixed sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 34 of 2014
| DZAEQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a judicial review of the decision of the Refugee Tribunal made on 18 July 2014, affirming the delegate’s decision not to grant the applicant a protection visa.
The applicant appeared at the hearing representing himself and had the assistance of an interpreter.
It is challenging for any unrepresented litigant to conduct court proceedings but is particularly difficult in the area of migration because of the technicality of the legislation and the nature of a judicial review.
The Legislation
The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows:
The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.
It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).
The Act provides for classes of visas: s 31. Visas may be permanent or temporary: s 30. One class of visa is a protection visa: s 36(1). The criterion for a protection visa is provided for in s 36(2). It relevantly provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.
Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.
If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.
Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.
The applicant’s claims
The application for judicial review was filed on 14 August 2014. The applicant does not refer to any grounds other than jurisdictional error. He gives no particulars. A Registrar made directions on 10 September 2014 which included a direction permitting the applicant to file an amended application and further evidence including a transcript. The directions also required both parties to file written submissions. The applicant did not file any further documents.
At the commencement of the hearing I explained the nature of a judicial review to the applicant. I explained to him that the process is quite different to the interview conducted by the Delegate and the hearing before the Tribunal.
The Tribunal decision is lengthy, being 74 pages long. Part of the Court Book includes a CD of the interview with the delegate. The applicant acknowledged receiving a copy of the CD when the Court Book was served on him.
Counsel for the first respondent provided a typescript of portions of that interview. One of the complaints that the applicant made before me was that he was asked yes or no questions at the interview and the hearing and did not have the opportunity to properly respond. The transcript contradicts his assertion.
I listened to the portions of the interview extracted in the transcript. Whilst it is clear that the typist missed a couple of words and had trouble understanding a few words which I could hear, the transcript accurately reflects the interview. The applicant pointed out two errors on the second page of the transcript. A typographical error appears twice where “LTCE” is typed instead of “LTTE”. It is clear from the sound recording that the applicant was asked about the LTTE.
The applicant also says the transcript shows problems with the interview because at the bottom of page 2 of the transcript it refers to his sister living in Boola. He says such a place does not exist. In fact the transcript refers to “Boola…”. It is clear from listening to the CD that the name is quite a bit longer than that and is hard to decipher particularly as it is referring to a place name. The “…” indicates this.
The other difficulty with the applicant’s assertion that he was not given an opportunity to explain himself properly when interviewed and at the hearing is that his representative filed detailed written submission in response to the s 424A letter sent by the Tribunal. The Tribunal decision itself contained lengthy extracts from those submissions and then critiques them. Therefore to the extent that the applicant is seeking to raise a complaint about lack of procedural fairness, that complaint must fail.
Identification of possible error in the Tribunal’s decision
The written submissions of the first respondent helpfully identify a potential mistake in the Tribunal’s decision. This was much of the focus of oral argument before me.
The Tribunal’s findings and reasons appear at [182] to [246] of its decision. At [200] to [203] the Tribunal discusses the applicant’s claim about attending the CID building in Colombo. The last line of [202] reads: “Further, the information about going to Colombo with his uncle had not been given in the entry interview, statutory declaration or the delegate’s interview.”
The transcript of extracts from the delegate’s interview shows two mentions of the applicant’s uncles. In his statutory declaration the applicant said he was taken to the CID building in Colombo and detained: see CB118 [9]. He does not mention his uncle in his entry interview or statutory declaration. He does mention his uncle in his interview with the delegate. In answer to the delegate’s question about why he was not arrested when they arrested his mother the applicant said “Their idea is to try to kill her but when I went to visit them I brought my uncles with me.”
As the first respondent points out in his submissions there are two possible interpretations of [202] of the Tribunal decision. One is that the Tribunal was dissatisfied about the detail of being taken to the CID building by his uncles in a car arranged by them was not being mentioned by the application. If this interpretation is accepted then there is no error.
In my view the more natural interpretation of [202] is that the Tribunal erred in the last line by stating that the applicant did not mention his uncle in the delegate interview. It is clear that he did not mention his uncle in the entry interview or the statutory declaration.
Having found an error of fact, it is necessary to consider whether or not it is so material as to amount to a jurisdictional error.
The comments of North and Lander JJ in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 are relevant here:
However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
Two recent cases have addressed this issue being SZRHL v Minister for Immigration and Citizenship and Another (2013) 136 ALD 641 and Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145. The facts in those cases were very different to this case.
In this case the error is minor. The Tribunal detailed its concern about many inconsistencies in the applicant’s evidence. The error is not material and the adverse credit findings were based on many other factors such that the minor factual error could not have materially affected the Tribunal’s assessment of the applicant’s credibility. Therefore the error of fact does not amount to a jurisdictional error.
Other issues raised by the applicant during the hearing
For the first time at the hearing the applicant raised complaint about the interpreters who assisted him. It was unclear as to which period the applicant was talking about and whether or not he was complaining about all the interpreters who assisted him since he first applied for a protection visa. The applicant says that he spoke a lot to the interpreter but the interpreter said a lot less. The applicant also said he did not know what was going on most of the time.
In order to raise a complaint about interpretation of his evidence the applicant would need to obtain a transcript and recording of his evidence before the Tribunal and would need to identify the errors in interpretation that are so significant so as to “… disclose such inadequacy or incompetence in the interpretation that the applicant can be said to have been prevented effectively from giving his evidence.”: STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FLC 818 at [1].
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 also addresses the issue of interpretation. At [41] Kenny J said:
What are the factors that might lead a reviewing court to conclude that the transcript of a Tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence? In my opinion, those factors include, amongst others, the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter.
The Full Court in SZRMQ v Minister for Immigration & Border Protection [2013] FCAFC 142 also commented on the issue of interpretations. The issue to consider is whether or not the standard of interpretation has affected the opportunity for the applicant to be heard and have a fair hearing. See also SZQUH v Minister for Immigration & Citizenship [2012] FCA 1265.
Counsel for the first respondent submitted that the applicant will have the opportunity to raise his complaint about the interpretation of his evidence if he applies to review my decision and obtains the necessary material to mount the complaint. However this is not entirely accurate as the applicant would need to seek leave to raise a new ground not argued before the Federal Circuit Court: see SZNYF v Minister for Immigration and Citizenship [2010] FCA 839 at [20]; SZQBN v Minister for Immigration and Citizenship [2013] FCA 276 at [16]-[20]. It cannot be said that the applicant has raised this as a ground of review before this Court because he has not supplied the material and submissions that would enable this Court to determine the issue.
In his oral submissions in reply the applicant asked for the opportunity to present his case more clearly. As I pointed out to him, what he is really asking for is an impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259.
The applicant did not expressly ask for an adjournment of the proceedings. If he had I would have refused the application for an adjournment because of the principles referred to in Aon Risk Management Services Ltd v Australian National University (2009) 239 CLR 175. The applicant has had ample opportunity to prepare his case.
The Tribunal made adverse findings about the applicant’s credibility. That is an issue for the Tribunal and not this Court: Ex Parte Durairajasingham (2000) 168 ALR 407.
The issue of what weight is to be given to the applicant’s claims is also a matter for the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-2.
Conclusion
For the reasons above I find that the Tribunal did not make a jurisdictional error. I will dismiss the application and make the usual order for costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 25 February 2015
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