MZXTF v Minister for Immigration

[2008] FMCA 956

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXTF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 956

MIGRATION – Applicant seeking judicial review – alleged translation issues – alleged procedural deficiencies – attempt at merits review – attempt to introduce new evidence denied – application dismissed.

Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507
MZXHY v Minister for Immigration & Citizenship [2007] FCA 622
Morato v Minister for Immigration Local Government and Ethnic Affairs(No.2) (1992) 111 ALR 417

Applicant: MZXTF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1760 of 2007

Judgment of: Burchardt FM

Hearing date: 26 June 2008

Date of last submission: 26 June 2008

Delivered at: Melbourne

Delivered on: 18 July 2008

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms E. James

Solicitor for the Respondents: Clayton Utz Lawyers

ORDERS

1. The Application filed 31 December 2007 be dismissed. 

2. The Applicant shall pay the First Respondent’s costs fixed at $8,900.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1760 of 2007

MZXTF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant has filed a show cause application.  He says that the decision of the Refugee Review Tribunal (“the Tribunal”) signed on

   
   15 November 2007

   should be:

   "Back to RRT and have another hearing."

2. The application itself expresses only one ground of application which asserts a factual error by the Tribunal.  One may say immediately that that ground is not made out and is itself factually erroneous.  The Tribunal did not err in finding that the Applicant applied for his refugee visa only two months before the end of his previous study/work visa. 

3. The Applicant has raised a number of other issues that, for the reasons that follow, I think are all without merit and the application should be dismissed. 

Translation issues

1. In his affidavit filed together with the application on 31 December 2007, the Applicant expressed a desire to have another hearing with a professional interpreter.  In a further affidavit filed on 14 April 2008, the Applicant detailed a number of criticisms of the translation at the Tribunal hearing.  The Applicant referred to these in the hearing before me. 

2. The Applicant has filed a copy of the transcript of the hearing before the Tribunal, and I have read it and compared it to the criticisms made by the Applicant.  I accept that the analysis of the Applicant's complaints presented by counsel for the First Respondent and marked MFI1 is an accurate recitation of the matters to which the Applicant refers. 

3. It is sufficient to say that even if I were to accept that each of the Applicant's asserted errors is correct, this is not a case where any mistakes that the interpreter made caused the sorts of results referred to by Kenny J in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 (“Perera”). 

4. I note that in this case the Tribunal had the assistance of a level 3 interpreter, a matter different from Perera.  Looking at the transcript, there is nothing to suggest that the standard of interpretation in this case was such as to prevent the Applicant from having a "meaningful opportunity to be heard" (Perera at [29]).

5. There is nothing to suggest that the interpretation was not competent.  There is nothing in the passages about which the Applicant complains that, even assuming his criticisms of the translation to be correct, suggests that the result would in any way have been different if the translations for which he contends had been made instead of those that were apparently made.  This ground is not in my view valid. 

The stress to which the Applicant says he was submitted and alleged unfairness arising therefrom

1. The Applicant complained before me that the hearing had gone on a long time and that the Tribunal's style of questioning of him had been unduly inquisitorial and such as to be unfair. 

2. There is nothing in the transcript to support this assertion.  I note, as counsel for the Minister pointed out, the Applicant was represented throughout the proceeding before the Tribunal (both at the hearing at which oral evidence was taken and in the course of providing written material) by a registered migration agent. 

3. Nowhere at any stage in the proceeding is there any material to suggest that the Applicant was prevented from properly putting what he wished to put by improper or excessive questioning by the Tribunal. 

4. The Applicant complains that at one point there was a joke at which other parties present laughed, but that this was not the subject of translation.  I have not been able to find nor have I been directed by counsel to any such occurrence in the transcript and in any event, there is nothing to suggest that any such event, assuming it did take place, suggests impropriety or unfairness in any way on the Tribunal's part. 

Merits review

1. The Applicant sought in his oral submissions to revisit his claims as to his apostasy from Islam.  In particular, he traversed again the Tribunal's finding that it took him six months to seek to express his Christian religion upon arrival in Australia.  Such matters are pre‑eminently the provenance of the Tribunal.  They constitute findings of fact.  Such findings are not reviewable in the manner that the Applicant seeks. 

2. Likewise, I do not see that the Tribunal's (relatively limited) questioning about the Applicant's girlfriend in Australia was in any way improper.  It arose from answers given by the Applicant himself (see transcript T42‑43). 

3. The Tribunal's findings about the Applicant's sur place claims show that it was fully alert to what it was the Applicant was saying about his apostasy and conversion to Christianity.  There is no error, let alone jurisdictional error, in the Tribunal's findings. 

Membership of a particular social group

1. The Applicant complained that the Tribunal had fallen into error in concluding that he had not had an affair with a woman married to a senior general in the Iranian Revolutionary Guard, or Sapeh.  In my opinion, however, the Tribunal was fully entitled to reach the findings it did.  No jurisdictional error was shown in this regard. 

2. The Applicant did seek to rely upon materials sent under cover of a letter dated 25 June 2008 to the solicitors for the First Respondent from the Applicant's parish priest, Father Gill.  Self-evidently, none of this was before the Tribunal.  Such material is not admissible in a proceeding of this sort (per Nicholson J in MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8]).

3. Furthermore, the material which was interpreted viva voce in court is in any event:

   a)undated; and

   b)by no means unequivocal insofar as it is purported to show an intimate relationship between the female sender in Iran and the Applicant. 

4. While the material as translated shows that the Applicant would appear to have a relationship with a woman who is herself in an unhappy relationship, and that that woman finds him attractive and has an exuberant manner of self-expression which might be consistent with that of a lover, it is not as I say unequivocal. 

5. Furthermore and in any event, I found the Applicant's suggestion that his migration agent told him not to bring this material forward at a point earlier to almost just before this hearing, when he said he received it in March, inherently unconvincing.  The migration agent would have known that this was material which, if dated and if it had been otherwise before the Tribunal, would have been extremely potent because it was the absence of such material that in part - and one might think in large part - led the Tribunal to reject the Applicant's claims about this aspect of the case. 

6. To repeat, however, this material is not admissible in any event.  Furthermore, for the reasons expressed by the Full Court of the Federal Court in Morato v Minister for Immigration Local Government and Ethnic Affairs(No.2) (1992) 111 ALR 417, even if the Applicant had had an adulterous affair with a senior government officer it would not mean that the Applicant was part of the "particular social group".

Conclusion

1. The application is unfortunately without merit and the application must be dismissed.  The Applicant must pay the First Respondent’s costs. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  18 July 2008