MZWMQ v Minister for Immigration - [2005] FMCA 287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWMQ & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 287

MIGRATION – Protection visa – whether jurisdictional error – interpreter – whether opportunity to put case.

STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 818 (25 June 2004)
Re Minister for Immigration and Multicultural Affairs; ex parteDurairajasingham (2000) 168 ALR 407
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Abebe v Commonwealth (1999) 197 CLR 510
Waterford v Commonwealth (1987) 163 CLR 54

Applicants:

MZWMQ, MZWMR & MZWMS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 779 of 2004

Delivered on:

15 March 2005

Delivered at:

Melbourne

Hearing Date:

28 February 2005

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Mr S Anger

Solicitors for the Applicants:

Ms S Dhanapala

Counsel for the Respondent:

Mr R Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Application be dismissed.
The Applicants shall p ay the Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 779 of 2004

MZWMQ, MZWMR & MZWMS

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

On 17 June 2004 the applicants filed an application in this court seeking judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 30 April 2004 and handed down on 21 May 2004. Before this court the applicants have relied upon an amended application and contentions of fact and law filed on 9 February 2005. Reliance was also sought to be placed upon written correspondence from the first applicant dated 20 December 2004. The respondent has relied upon contentions of fact and law filed on 17 February 2005. Both parties, who were represented, otherwise made brief oral submissions.
By way of background, the applicants who are Sri Lankan citizens, are a husband, his wife and their daughter. They arrived in Australia on 5 January 2001. On 9 February 2001 they lodged with the Department of Immigration & Multicultural & Indigenous Affairs an application for protection visas. No separate application was made by the applicant's wife and child and accordingly in this judgment it is appropriate to refer to the husband as the Applicant throughout this decision.
The applicant claimed a well‑founded fear of persecution at the hands of a prominent former Sri Lankan politician. It is not necessary to recite in detail the claims save that they relate to significant events where the applicant claimed to have been directed by a politician to carry out a number of illegal acts and those acts included disposal of bodies of individuals who had been killed allegedly by the politician and to be an unwitting accomplice in the illegal provision of ammunition to the Liberation Tigers of Tamil Eelam (LTTE). Other claims were made of perpetuating electoral violence and taking part in acts to prevent opposition parties' supporters casting votes and involved the applicant witnessing the murder of colleagues by the former politician. The applicant claimed he himself narrowly escaped being murdered by the former politician and upon return to Sri Lanka he would be killed by that politician's family because he had witnessed criminal acts of the politician.
The delegate refused to grant the visa on 27 February 2002 and that decision was then affirmed by the RRT as indicated in its decision dated 30 April 2004. At the RRT hearing the applicant gave evidence and so did his wife, both with the assistance of an interpreter and both were represented. The RRT decision set out the applicant's claims and evidence, including the evidence of his wife and the submissions made for and on their behalf by their representative. The RRT appropriately had regard to country information. It concluded there was not a real chance that if he returned to Sri Lanka in the reasonably foreseeable future, the applicant would face serious harm amounting to persecution by reason of his real or imputed political opinion or for any other Convention reason.
There can be no doubt that in this application the allegations made by the applicant were significant and serious allegations. There is also no doubt, in my view, that the RRT in considering those allegations has made a significant finding as to the credibility of the applicant and indeed the reliability of both his evidence and the evidence given by his wife. It rejected the applicant's claims and specifically rejected all the significant claims as to the matters briefly set out earlier in this judgment. It was prepared to accept that the applicant had joined the Peoples Alliance in 1994, though found that any involvement on the applicant's part did not give rise to a political profile of a kind that would bring him to the adverse attention of the Sri Lankan authorities.
The significant finding of the RRT is set out in its decision and includes a finding that:
“… the overall character of the Applicant's evidence (was) lacking in credibility.”
It further found that the applicant had fabricated his account of his involvement with the former politician's family. It made findings in relation to the credibility of the applicant based upon what it discerned to be inconsistencies and implausibilities in the applicant's evidence as well as inconsistencies in the evidence between the applicant and his wife and country information.
It is perhaps relevant to set out by way of example the RRT's reasoning in its decision in relation to the contradiction between the applicant's wife and the applicant's version of events in what are described as a number of key respects. At court book page 192 the RRT makes the following observations as part of its reasoning process under the heading ‘Findings and Reasons’:
“The witness' evidence also contradicts the Applicant's version of events in a number of key respects. In this regard, I consider the witness' evidence in relation to communication between her husband and LR in the days after the election to be significant. The witness stated alternately that the Applicant had spoken to L, that he only tried to speak to L and that he had not spoken to L after the election. She also said at one point that she didn’t know whether he had or had not spoken to L after the election. The Tribunal tried several times to clarify with the Applicant what in fact had occurred. Her responses suggest that she was unsure of what to say and was deliberately dissembling in order to avoid contradicting her husband's statement. The independent translation of the evidence, sought by the Tribunal after the hearing, did nothing to clarify these conflicting statements and lead me to conclude that the Applicant was unsure of how to respond to this question as she did not know the 'right' answer, ie, one which was consistent with that given by her husband. The witness also gave very different accounts of the time of day the party occurred and suggested her husband's visit to the estate happened a full day later than the Applicant claimed it did.

I consider this material to the claim, given she was able to recall the occasion for which the party was held, for whom the party was held and the time they left for the party and the fact that they returned at night. Given this, I find it implausible that she was unable to identify the day or time when her husband left home, particularly as he had been absent for work for long periods until that time, according to both of their accounts. Given that the Applicant alleges that he didn’t come back after allegedly being summoned to a party by …, I consider it implausible that these events were not inextricably linked in the Applicant's wife's mind.”
That is just by way of example of an analysis of the facts undertaken by the RRT which would appear, in my view, to have considered in some detail the evidence provided and the allegations and claims made on behalf of the applicants. In support of the amended application, it is claimed that there has been an error in terms of not permitting the applicant to test evidence of the interpreter relied upon by the RRT. Specifically in the letter dated 20 December 2004 the applicant claims the following:
“When my wife gave evidence in RRT hearing she had said that I tried to contact … and couldn't do that. But in the translation our interpreter made a mistake. He had told my wife said …contacted me. So there he didn't translate properly what my wife said. So I think it will mislead the tribunal member and she decide that my wife and me were given untallied answers.”
Other criticisms are made of the RRT decision which, in my view, may properly be regarded as criticisms of weight in relation to various issues and is a significant criticism in relation to the credibility finding of the RRT.
It is clear to me that on a proper reading of the material that the RRT, whilst being mindful of difficulties asylum seekers face in putting claims and making due allowance for difficulties during a hearing, made observations and considered the evidence in some detail. So much is clear from that part of the evidence interpreted where it appears to me that the RRT has endeavoured to explore issues in relation to the claims made by the applicant. Apart from the extract from the letter to which I have referred, there is no further detail given in relation to specific matters where it might be claimed that interpreting errors before the RRT could properly be regarded as material upon which adverse conclusions were drawn by the RRT.

I am satisfied that in those circumstances, having considered the material, that the applicant was given an adequate opportunity to make submissions after the hearing about, amongst other issues, credibility and that throughout the hearing it would have been readily apparent that there was a significant credit issue and a fact‑finding process undertaken in determining that issue by the RRT which was properly and fully agitated. The applicant had the opportunity to present any arguments to advance the merits of the application.
It is not enough to simply make a general and vague criticism of interpreting evidence in order to establish a jurisdictional error of a kind which would justify judicial review. In the present case I cannot see any basis upon which it could be suggested in any event that the interpretation in this case was so inadequate or incompetent that the applicants were prevented effectively from giving their evidence (see STPB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 818 (25 June 2004)at [1]). I apply the authority of Re Minister for Immigration and Multicultural Affairs; ex parteDurairajasingham (2000) 168 ALR 407 per McHugh J at [67].

I accept that in a case of this kind where the decision rests on an assessment of credibility of the applicant's claims and evidence, that credibility is a matter described for the tribunal as being a process par excellence.
In my view, the conclusions reached by the RRT on the facts presented to it with the assistance of the interpreter and the absence of any specific criticism of the interpreting process of a kind which would attract judicial review mean that there is no basis upon which this court should interfere with the decision.
I cannot determine any jurisdictional error of a kind which would permit judicial review in this application.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
In this matter it is not necessary for me to consider what might be the outcome if I were to find that the RRT had made a wrong finding of fact as in my view it is not possible to reach that conclusion in this application as I am satisfied that the RRT had reached a conclusion reasonably open to it on the evidence and without any jurisdictional error. I note in passing, however, that even if I were wrong in that assessment and that the wrong finding of fact had been made in this case, that does not of itself give rise to reviewable error (see Abebe
v Commonwealth (1999) 197 CLR 510 at [137] and Waterford
v Commonwealth (1987) 163 CLR 54 at [77]).
In any event, for the reasons given it is my view that there is no jurisdictional error in the present application. It follows therefore that the application should be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 15 March 2005