Lamrabte v Minister for Immigration and Multicultural Affairs

[2001] FCA 851

FEDERAL COURT OF AUSTRALIA

Lamrabte v Minister for Immigration & Multicultural Affairs [2001] FCA 851

Migration Act 1958 (Cth)

ELWAFI LAMRABTE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S36 OF 2001

von DOUSSA J
ADELAIDE
6 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S36 OF 2001

BETWEEN:	ELWAFI LAMRABTE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	6 JULY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Application for an order for review dismissed.

2.Applicant to pay the respondent’s costs of the application.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S36 OF 2001

BETWEEN:	ELWAFI LAMRABTE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	von DOUSSA J
DATE:	6 JULY 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an order for review of a decision made by the Refugee Review Tribunal on 20 February 2001.  The tribunal affirmed the decision of a delegate of the respondent, the Minister of Immigration and Multicultural Affairs made on 23 October 2000 which refused to grant a protection visa to the applicant who had arrived in Australia on 4 April 2000.

2. The applicant is in detention.  The application to this court has obviously been prepared without the benefit of legal advice.  The application pleads that the applicant is aggrieved by the tribunal’s decision because “it has been an absolutely unfair decision” and “because I cannot possibly go back”.  The grounds of the application are:

   “(1)DIMA [Department of Immigration and Multicultural Affairs] advised me that the only appeal avenue is to the Federal Court of Australia.

   (2)       There are mistakes existing in the RRT decision.”

3. In a supporting affidavit the applicant says:

   “1.As a Moroccan I was disadvantaged by not being provided with an interpreter who speaks my language.

   2.I don’t believe that my solicitor worked hard enough on my behalf as I was expecting him to do something during the RRT hearing, namely by speaking which he never did.”

4. I interpret the applicant’s first complaint that he was disadvantaged by not being provided with an adequate interpreter as relating to interviews which an officer of the Department of Immigration and Multicultural Affairs conducted with the applicant in October 2000 to which further reference is made below.

5. The second complaint I understand to relate to the hearing before the tribunal.  The papers suggest that the applicant was represented by an adviser who is a migration agent, not a solicitor, but nothing turns on that.  The substance of the complaint is that the adviser in the applicant’s opinion did not work hard enough.  The reasons for decision record that the adviser was present by telephone, and also made a written submission.  At the end of the applicant’s evidence, the adviser said that he did not wish to make any submissions or ask any further questions.  This, it seems, occurred in the presence of the applicant who did not indicate a desire to say anything further at that stage.  The applicant’s adviser was also invited to submit further material and submissions after the hearing to back up matters raised by the applicant in his evidence.

6. It is convenient to deal immediately with the ground of complaint based on the conduct of the adviser. Pursuant to s 427(6) of the Migration Act 1958 (Cth) (the Act):

   “A person appearing before the tribunal to give evidence is not entitled:

   (a)to be represented before the tribunal by any other person;  or

   (b)to examine or cross-examine any other person appearing before the tribunal to give evidence.”

7. The effect of that subsection is that before the tribunal, applicants for review who are invited to attend to present evidence pursuant to s 425(1) of the Act have no right to be represented (although if they are not proficient in English they are entitled to the benefit of an interpreter:  s 427(7)):  see Crock “Immigration and Refugee Law in Australia”, (The Federation Press 1998) at p 258. In the present case it appears that not only was the applicant’s adviser permitted to be present by telephone, but the strict proscription of s 427(6) was relaxed by the tribunal when it extended an invitation to the adviser to make submissions or to ask further questions. The material before the court does not establish that procedures required by the Act or the Regulations to be observed in connection with the making of the decision were not observed. No ground for review under s 476(1)(a) of the Act is raised by the applicant’s second ground of complaint.

8. On the hearing of the review by this court it was explained to the applicant that the function of an advocate who is allowed to represent a party before a tribunal is confined to putting to the tribunal the instructions of that party.  The applicant was invited to indicate what parts of his case were not put by him to the tribunal which his agent could have, but did not, raise.  The applicant did not identify any matter. 

9. The first ground of complaint raised by the applicant, that he was disadvantaged by not being provided with an adequate interpreter, requires an examination of the several claims which the applicant put forward at different times in support of his application for a protection visa on the ground that he was a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees. 

10. The applicant arrived in Australia on 4 April 2000 aboard an unauthorised boat.  He was interviewed on 10 April 2000 by an officer of the Department of Immigration and Multicultural Affairs (the Department).  The record of that interview indicates that it was conducted in Arabic.  The applicant said that he understood the introductory questions put to him, and that he accepted the accuracy of the record of interview which, at his request, was read back to him.  He said he was born in 1976, that he is single, and that his parents and six brothers and one sister reside in Morocco.  He said he speaks Arabic and Barbaric (Berber).  He said he left Morocco because he had financial problems.  He explained this to mean that he had been working since he was fifteen years old but had saved nothing and had nothing.  He said his parents could barely support the family which lived in one room.  He said his family were paid little and they got no support from the police who supported the rich people.  He gave examples of the lack of police support by saying that if he needed a document he would have to pay a bribe to officials, and that on one occasion when he was riding a motorbike without a helmet he was unable to pay a $US10 penalty requested by the police so they took his motorbike.  He said he had no other problems with the police and none of his family have experienced problems with the authorities.  They had no political or religious problems.  He said that he came to Australia as it is the best country in the world where people are treated with respect and there is no discrimination.  He was asked if he had any reason for not returning to Morocco.  He said that he would rather die as he would be sent to prison if he returned and in Morocco if a person goes to prison on their return they have no respect.  He said that he departed Morocco on a valid passport, but that by entering Australia illegally he would ruin the reputation of Morocco and that is why he would go to prison.

11. Six months later the applicant made application for a protection visa.  In his application dated 13 October 2000, he answered questions indicating that he left Morocco illegally with the assistance of a person and had difficulty obtaining travel documents.  He expanded upon that in a statement dated 14 October 2000.  That statement is in English and is signed by an interpreter.  That statement says that he left illegally as he could not obtain a visa and the intelligence were looking for him. 

12. The statement of 14 October 2000 raised entirely new claims.  He said that he left Morocco because he encountered problems that made it very difficult for him to continue to live there.  The first problem was that he was wanted by the State and the second problem was that two families wanted to kill him.  In relation to the first claim he said that on 2 January 2000 he and three friends were in a café watching the TV.  The King was opening a new football stadium because they were joining in the World Cup bid for the year 2006.  The applicant said to his friends, “How could this King join the World Cup when his people do not have enough bread to eat, they are hungry?”  His friend said to him, “Why are you saying that?”  The applicant yelled, “What will they do to me, damn him, (the King)”, I said, “Damn the King, damn his ancestors and damn anyone who follows him”.  His friend took him from the café to calm down.  Later that evening on his way home, his brother intercepted him and told him that the intelligence were looking for him at the house.  His brother advised him to go to his Uncle’s house in the south of Morocco which he did.  Three days later his brother came and told him the intelligence were still looking for him.  One week later his brother returned yet again saying the problem had escalated, that his two friends in the café were arrested and sentenced to fifteen years imprisonment and their families were blaming the applicant and wanted to kill him.  He decided to leave the country.  His brother arranged tickets for him.  He said that he had approximately one thousand dollars which he had saved and his siblings and mother gave him a further five thousand dollars.  He travelled by Jordan and Indonesia to Australia. 

13. On 15 October 2000 when he was interviewed by an officer of the department, he stated that he had not mentioned these claims when he first arrived in Australia as he had been told not to give the real reason as he might be sent back to Morocco.  He repeated his claim of having criticised the King in a café, that intelligence were looking for him, and that he feared return and imprisonment. 

14. The respondent’s delegate refused the applicant’s application for a protection visa on 23 October 2000.  In written reasons for that decision the delegate said that after interviewing the applicant he did not find his claims to be plausible.  The delegate did not accept the applicant’s explanation for the differing reasons which he had given for leaving Morocco.  Further, the delegate noted that when he asked the applicant to give an account of the circumstances which led to him leaving Morocco, he merely repeated the paragraphs of his written statement that recorded the incident in the café, but the delegate was unable to obtain additional information.  The delegate did not accept that if the events claimed were true, that the applicant would not be able to provide more detail.  The delegate went on to say:

    “Even if I accept that the events in the coffee shop occurred as claimed, I am not satisfied that the available country information supports the claim that his friends were arrested and tried within one week of the applicant speaking his mind in a café.  If his friends were arrested for political reasons, I don’t accept that the justice system would deal with them in one week to the point of sentencing a term of imprisonment …”

    In short, the delegate rejected the truthfulness of the claims made by the applicant in his statements made in October 2000.

15. Before the tribunal the applicant was assisted by an interpreter in the Berber language.  The applicant at first repeated the elements of the café incident recorded in his statement of 14 October 2000.  He then said that he had not said that his friends were imprisoned for fifteen years and this was a mistake of interpreting.  He claimed that they were arrested for insulting the King.

16. The tribunal put to him that this was difficult to believe.  The applicant said “In my country it is known that if you are talking to someone and talking about politics or about the King, then you go to gaol”.  The tribunal indicated that it did not accept that as a true proposition because if such a situation existed then some of the human rights groups would have commented on it, but there was no mention of anything of the kind.  The applicant said:

    “These things happen all the time.  I know of someone who took a photo of the King and was gaoled.  I have some proofs and documents.  I have some proofs with my lawyer about the persons who went to gaol.
    …

    I believe it is happening – it happened to me.”

17. Later in his evidence the applicant said that he did not leave Morocco with false documents, and in fact left with his own passport.  He said that he had not previously claimed that he had left on false documents and that what he meant was that he left with someone helping him.

18. Following the hearing, the applicant’s adviser took up the invitation to make a submission, and forwarded a letter from the applicant addressed to the adviser in which the applicant claimed that he did not speak Arabic properly, but spoke a dialect of Moroccan Arabic and Berber.  He said he had a lot of difficulty during the interview with the Department which caused him to commit a lot of mistakes.  The letter continues:

    “An example of one mistake was when I was asked in the 2^nd interview about what happened to the other two people who were with me when I spoke against the King of Morocco.  I answered that they were in prison and that they possibly would be sentenced for a period of not less than fifteen (15) years;  while the interpreter said to the lawyer that the people were imprisoned and after ten (10) days were sentenced for fifteen (15) years.  The part about their sentencing I said possibly …”

19. The applicant’s complaint that he had been disadvantaged by not being provided with an adequate interpreter was therefore squarely raised before the tribunal as part of the explanation for the differing claims which the applicant had from time to time made.  The alleged inadequacy of the interpreter was one of the issues of fact considered by the tribunal in its findings and reasons. 

20. In its findings and reasons the tribunal said:

    “I have carefully considered the applicant’s claims and the history of those claims and am prepared to accept that he is a citizen of Morocco and that he is who he claims to be.  I have taken account in considering this application of the applicant’s obvious lack of education, and problems that may arise through the use of interpreters.  From a consideration of the independent evidence and the applicant’s ability to give evidence in both Arabic and in Berber I do not accept his claims of being misunderstood or of incorrect interpretation.

    I am prepared to accept that the applicant departed Morocco for economic reasons as detailed in his original statement given to an officer of the department.  I accept that he departed legally on a passport issued in his own name.  Economic reasons of themselves do not bring the applicant within the terms of the Convention definition of a refugee.

    I accept the independent evidence as an accurate reflection of the situation in Morocco.  I note that the applicant has made no claims relating to his being Berber and no claims relating to his religion.  Though he makes no claims I have, in view of the applicant’s lack of education, considered independent evidence on the position of Berbers and on the Muslim religion in Morocco and do not accept that there is any basis for such claims.

    I have carefully considered the applicant’s later claims and in particular his change in story and do not accept the later story as being true.  I understand that in some situations and circumstance an applicant for a protection visa may leave out some aspects of their history, or even that they may have a compelling reason not to disclose part of that story and detail it later in the application process.  I do not accept that this is the case here.  The applicant gave a detailed history in his initial interview with an officer of the department on 10 April 2000.  It is specific and he has given specific answers.  He has not mentioned anything about the claimed incident in the café or being wanted by the authorities.  I find that the later claim relating to saying insulting things about the King is fabricated for the purpose of attempting to advance his protection visa application.

    I note that even if I were to accept that such an incident occurred I do not accept having carefully considered the independent evidence that such repercussions would eventuate as claimed by the applicant.  I do not accept that his two friends would have been arrested and imprisoned for whatever term for having been in the café when he made such comments.  I also do not accept that the applicant would face problems for making such comments.  I consider that if such a situation as this existed in Morocco then it would be commented on somewhere.  The fact that it is not indicates to me that what the applicant says on this is not true.

    Overall, I find that the applicant was not a credible witness, I find that he does not have a well-founded fear of persecution for reasons of a Convention ground.”

21. The tribunal rejected the allegation that the applicant was disadvantaged by the interpreter.  That finding was plainly open on the information before the tribunal.

22. Further, the country information justifies the findings of fact made by the tribunal about the situation in Morocco and the unlikelihood that the applicant’s friends would have been arrested and imprisoned in relation to an incident such as that alleged by the applicant in the café.  The tribunal’s findings that the applicant had changed his claims and fabricated a story for the purpose of attempting to advance his protection visa application were also plainly open on the information before the tribunal.  It is the function of the tribunal to decide facts of that kind, and the tribunal’s decision will not reflect error of law so long as there was an evidentiary base for the findings.

23. The grounds upon which the applicant seeks an order for review do not raise errors of law but at best seek to challenge the correctness of the findings of fact made by the tribunal.  No ground upon which this court could exercise jurisdiction under s 476 of the Act has been made out and the application must be dismissed with costs. 

    I certify that the preceding twenty-three (23)

    numbered paragraphs are a true copy of

    the Reasons for Judgment herein of the
    Honourable Justice von Doussa.

    Associate:

    Dated:             6 July 2001 

    Counsel for the Applicant:  The applicant appeared in person

    Counsel for the Respondent:                Ms S J Maharaj with Ms K Southcott

    Solicitors for the Respondent:               Sparke Helmore

    Date of Hearing:  20 June 2001 

    Date of Judgment:  6 July 2001