MZYHO v Minister for Immigration - [2010] FMCA 795

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYHO v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 795

MIGRATION – Application for judicial review – significant error in interpretation – whether Tribunal’s conclusions affected by interpretation error – whether Tribunal misunderstood evidence – whether Tribunal’s finding that applicant could access state protection covered all or only part of the applicant’s claimed fears of persecution.

Migration Act 1958, s.425

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant:

MZYHO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 17 of 2010

Judgment of:

Burchardt FM

Hearing date:

24 September 2010

Date of Last Submission:

24 September 2010

Delivered at:

Melbourne

Delivered on:

3 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr N. Poynder

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the Respondents:

Mr G. Hill

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 17 of 2010

MZYHO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 4 December 2009. He says that the Tribunal fell into jurisdictional error in a number of ways.
The errors have been set out both in written submissions and in the oral submissions to the Court by the applicant’s counsel. There has been some change from time to time to the way in which the errors have been characterised.
For the reasons that follow, I think that the Tribunal, albeit without fault on its part, was led into jurisdictional error in one respect. Nonetheless, the Tribunal’s finding that the applicant could have availed himself of state protection constitutes an alternative, and in my view unimpeachable, basis upon which the Tribunal dealt with the matter.
It therefore follows that the application must be dismissed.

A brief synopsis of the applicant’s claims

The applicant is a Lebanese citizen who came to Australia on a family visit visa and applied after several months for a protection visa.
His claims, putting the matter admittedly somewhat broadly, were said to have arisen because of conduct by him during a period in which he was serving in the army from 2006 to 2008.
In 2006, between approximately January and either March or somewhat later, the applicant said he worked at a Palestinian refugee camp called Nahr al Bared. His work was, relevantly, excavating tunnels with a bobcat.
In 2007, major conflict undoubtedly erupted between a group of militants in the refugee camp called Fatah al-Islam, which from country information appears to have come into existence in late 2006.
Although the applicant was not anywhere near the refugee camp at the time, he brought to the attention of his superiors the fact that he had worked in these tunnels and that the army could, if it so wished, obtain plans of the tunnels from his former employer. He said that this indeed occurred and was instrumental in assisting the army in the ultimate defeat of the militants at the camp.
He went on to say that his former employer had been killed, as had one other fellow worker, because of the perception on the part of Fatah al-Islam that they had assisted the army and caused them loss.
He said he risked being killed by way of revenge. He gave evidence in support of this proposition.
He claimed to fear risk of persecution should he return to Lebanon on the basis that he was a former army member, and more particularly because of his involvement in the suppression of the uprising at the camp. I will need to return to this aspect of the applicant’s claim in more detail in due course.
Given the slightly different way in which the applicant’s case has been presented, it is convenient in my view to approach the grounds of application in the same order and in the same character as they were argued by counsel at the hearing.

The interpretation problems

The first ground advanced by the applicant was that the Tribunal manifestly failed to understand the applicant’s evidence in regard to a critical matter, namely the width of the bobcat on which he said he had worked at the camp.
While it is conceded that the Tribunal may have correctly recorded at paragraph 33 of the Reasons for Decision (CB23) that the bobcat was 1.4 metres wide, it was submitted that the Tribunal’s subsequent finding at paragraph 87 (CB33) that the bobcat had a width of 2 metres clearly failed to understand what the applicant had said.
To misconstrue the evidence in so significant a way was said to constitute jurisdictional error.
What the Tribunal said at paragraph 87 of its Reasons for Judgment, having made the finding that the bobcat was two metres wide, was:
“The Tribunal finds that the width of the tunnel and the width of the bobcat would have severely restricted the work that the bobcat could do and for this reason the Tribunal does not accept the applicant’s evidence that he cleaned out tunnels using a bobcat.”
The Tribunal went on at paragraphs 88 and 89 to deal with the issue of how it was that the company which was engaged to do the tunnel-clearing work was in fact engaged (a matter to which I shall return). The Tribunal found at paragraph 90:
“On the basis of significant implausibilities the Tribunal finds the applicant was not engaged in work at the Nahr al Bared camp as claimed.”
The Tribunal went on, as was scarcely surprising in the circumstances, to use that finding to reject the applicant’s claim of feared serious harm as revenge. At paragraph 92, the Tribunal said:
“The Tribunal does not accept that the applicant worked at the Nahr al Bared camp as claimed. It follows that he was not in possession of any special tunnel information to pass on as claimed.”
Although it is not stated in terms, those previous findings clearly played a significant part in the rejection of the applicant’s evidence about the death of his former employer and one of his colleagues at the excavation company, set out in paragraphs 93 and following.
The first respondent submitted that the reference to two metres as the width of the bobcat was plainly a typographical error. Counsel went on to say that in any event this did not constitute jurisdictional error even if I was against him in this regard. He submitted that the Tribunal is required to consider claims rather than evidence and the claim was that he was working at the camp.
It is not necessary to further paraphrase the submissions of the parties because a critical factual matter emerged at the hearing before the Court.
There had been, prior to the hearing, disagreement between the various translators as to what the applicant had in fact said in Arabic at the Tribunal hearing. Following a direction that they confer, the Court was informed there was an agreed position that the transcript of the hearing was in error. It is now common cause that the transcript at page 13 (supplementary court book annexure page 13) indicates at line 16 that the applicant said that the tunnels were “two metres high and three metres wide” (emphasis added).
It is also agreed that at line 32 the applicant said, “About two and a half metres high and two metres and …”
The applicant submitted that it was more probable than otherwise in view of the earlier answer that the applicant intended to say, “two metres and somewhat more,” and the first respondent submitted that no such inference could be drawn.
It is in my opinion clear that the obligation imposed by s.425 of the Migration Act 1958 (“the Act”) to provide a real and meaningful invitation to the Tribunal is defeated where a translator is inadequate. See by way of example Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [16] - [18].
That decision incorporated references to the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at [299] and references to Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, amongst other cases.
In my opinion, circumstances such as these fall well within the observations of the Federal Court in those cases. Whether it is said that the standard of interpretation was so inadequate that the applicant was effectively prevented from giving evidence at the Tribunal and/or that errors made by the interpreter at the Tribunal were material for conclusions of the Tribunal adverse to the applicant is perhaps not a matter that I need to decide.
In my view, in any event, both of those propositions are made out by the particular and extraordinary facts here.
It is quite clear, reading the Tribunal’s decision as a whole, that this question of the width of the bobcat was of the greatest significance to the way that the Tribunal approached its task and the conclusions that it reached. If the Tribunal had heard the applicant say on at least one occasion that the width of the tunnels he was excavating was three metres wide, it is inconceivable to me that the Tribunal would have drawn the implausibility conclusion about the working of the bobcat in it.
It should be noted that it was the applicant’s evidence that he was using the smallest bobcat available and in a tunnel three metres wide, and of a height not to prevent work (at least there is no such finding by the Tribunal). The plausibility of his having done the work would have been seen necessarily in a completely different light.
Thus, while no criticism in my view properly attaches to the Tribunal because the standard of interpretation was such that the Tribunal was deprived of having the relevant information, the fact is that the failure of interpretation prevented the applicant from having a proper hearing of his claims. Thus the decision of the Tribunal was in this regard, in my view, clearly attended by jurisdictional error.

Failure to deal with the claim as put/misunderstanding of the evidence in relation to the applicant’s claims

This ground constituted an attack upon the Tribunal’s finding that it was implausible that Fatah al-Islam would be so lacking in caution as to prevent workers from outside the camp entering it or to engage such workers.
My attention was drawn to a number of cases about possible difficulties with findings of implausibility. In particular, the applicant relied upon the following statement from Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [86] in the judgment of Lee J:
“the matters the Tribunal described as implausible were not claims disproved by proven facts nor events so contradicted by commonsense or human experience that they could be dismissed by the Tribunal as possible occurrences. The Tribunal engaged in speculation as to what a more likely course of events may have been but had no basis on which it could say that the events described by the appellant did not happen.”
It was further submitted that the actual characterisation by the Tribunal of the applicant’s evidence in relation to who it was that engaged him and the purposes for which the work was carried out was seriously misconstrued.
It should be noted that it was common cause that the work on the tunnels, if it took place, took place in the earlier part of 2006. Fatah al-Islam did not, according to country information, come into existence until about November 2006. Thus, on those bases, it is clear that any finding by the Tribunal that Fatah al-Islam had anything to do with the work on the tunnels was wrong.
Nonetheless, that error falls to be considered in the light of what the applicant actually said to the Tribunal at the hearing. At P-29, the following exchange took place (in the context of the continuing ongoing operations of Fatah al-Islam and that they could still inflict damage):
“MS URQUHART:   How do you think that the Fatah al-Islam knew that you worked for Mr Khoder at his excavation company?
THE INTERPETER:   We worked there for a couple of months there and they used to come and go and check about what we’re doing, and they used to come with coffee or tea or some lunch sometimes.
MS URQUHART:   So who were they?
THE INTERPRETER:   They came in a civil style, like we didn’t know anything about them. They came as nice people just helping us sometimes, giving us free lunch or coffee or tea because we’re working. We didn’t know anything about them. We never saw them armed.”
And later on P-30:
“THE INTERPRETER: We worked over two months there, so most of the days they used to come and sometimes spend a whole day talking to us, so they know everything about us, our names, where we live.”
At P-33, the following further exchange took place:
“MS URQUHART: You didn’t mention that Fatah al-Islam came almost every day when you were working there, bringing you free lunch and chatting, and coffee.
THE INTERPRETER: They looked like normal people. They didn’t say they belonged to Fatah al-Islam or any other organisation. They were civil, normal people, like we were doing their job for them.”
In my view, in the face of these answers, the error by the Tribunal was scarcely surprising. It adopted the applicant’s own answer to a direct question as to how it might be that Fatah al-Islam knew who he was. While it is true that he characterised the people he met as normal civil people, these were the people he identified as knowing where he lived and therefore would be likely to harm him.
In the circumstances, any error of characterisation as to the actual identity of those with whom the applicant spoke arose only from what the applicant himself told the Tribunal. I do not think this can be characterised on any view as jurisdictional error, even though the ultimate finding was on one view wrong. Nonetheless, on another view it might be thought to be implicit in the answers that the applicant gave that those who spoke to him over the months that he worked at the camp were those that he now feared, whether they were called Fatah al-Islam or not.
The other aspect of the evidence it was said that the Tribunal misconstrued was to do with the proposition that the work on the tunnels was being effected to make ready for Fatah al-Islam snipers to use in a conflict that occurred in 2007.
It was submitted that this misunderstanding came to exemplify the way in which the Tribunal had moved to a finding that it was implausible for Fatah al-Islam to engage outsiders to do the work, which it was said was unsupported by evidence.
Given that the Tribunal knew that Fatah al-Islam had indeed used the tunnels in 2007 to carry out sniping against the Lebanese army, and given that the work that had made those tunnels available was only a year before, I do not think that it is an impermissible connection to make. Likewise, an organisation concluded to be preparing itself for conflict or possible conflict would in my view reasonably be deduced to be unlikely to wish to engage external contractors. Nonetheless, while this may be so, it is at least equally likely such an organisation would simply not be able to obtain the machinery to do the work. There was no evidence to support this aspect of the Tribunal’s finding. In my view, the Tribunal did fall into jurisdictional error in the manner indicated by Lee J in M164/2002, because it arrived at a conclusion in this regard that misunderstood the evidence in such a significant way as to render the finding not open to it.

Failure to have regard to corroborative evidence

In this regard, the applicant submitted that the Tribunal had failed to consider the letter from the Mukhtar of Kabhit (CB122). It was submitted that, this being corroborative evidence, the Tribunal was obliged to give it express consideration.
A short answer to that submission, in my view, is the submission of the first respondent. The Tribunal is obliged to consider such material but it is not necessary to refer to every piece of evidence (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630).

Finding of Illogicality

The Tribunal found that it was illogical for the applicant to have returned home to see his family, despite taking steps, given his claimed fear that Fatah al-Islam was picking him and his colleagues off one by one. It was submitted that this finding was not open as there was no logical connection between the two propositions. Once again, this point can be dealt with fairly quickly. In my opinion, there is nothing inherently illogical about a conclusion that a person who says that he is in fear of his life and is aware that Fatah al-Islam is trying to kill him in his hometown being thought to act inconsistently with that fear by in fact returning albeit in disguise. Minds might differ as to the force of the proposition but it is not one that is so lacking in internal consistency in my view as to be invalid.

The death of Mr Tradiyeh

Various criticisms were made of the Tribunal’s findings in relation to this matter. I accept the submission advanced at paragraph 37 of the first respondent’s submissions:
“It can be seen that the findings made by the Tribunal in para 98 – particularly the crucial finding that there is no connection between the death of Mr Tradiyeh and Fatah al Islam – do not turn on the difference between the Applicant’s statements of Mr Tradiyeh “standing on traffic lights” and “sitting in a car”. Rather, a fair reading of the Tribunal’s reasons is that the Applicant had not put forward any evidence to link the death of Mr Tradiyeh to Fatah al Islam, particularly once the Tribunal rejected the Applicant’s claim that he (the Applicant) had worked at Nahr al Bared.”
It will be noted that while I am against the applicant in regard to this point as it were on its own, it shows the pervasive way in which the critical error in translation infected the entirety of the Tribunal’s reasoning process.

State protection

The first respondent submitted that even if it were wrong on all other points, the Tribunal’s finding that the applicant could access state protection in Lebanon constituted an independent and fatal objection to the applicant’s case.
By way of contrast, the applicant submitted that the Tribunal’s finding in this regard (CB36, paragraph 103) referred only to one part of the applicant’s claimed fears of persecution, namely his membership of the Lebanese army.
I am afraid I am unable to accept that submission. The Tribunal characterised the applicant’s fear of claimed harm and retribution by way of revenge as being “membership of a particular group being members of the Lebanese army who were instrumental in the Nahr al-Bared strike” (paragraph 101).
The Tribunal went on at paragraph 102 to say, “The applicant has claimed that he is also at risk as a former member of the Lebanese army, in particular because of his membership of a social group being members of the Lebanese army who were instrumental in the Nahr al-Bared strike. He believes the Lebanese Government is unable to provide him protection as terrorists can strike at any time at any place”.

At paragraph 103 (CB36) the Tribunal went on to say:
“However, even if the Tribunal were wrong, country information referred to above supports the view, that the Lebanese authorities are prepared to take action against groups or individuals engaged in terrorist activities. The Tribunal finds no evidence to support the view that the authorities would be unwilling or unable to provide adequate protection to the applicant should this be necessary. … The Tribunal finds that the applicant could avail himself of adequate state protection.”
Given the way the Tribunal set out its conclusions in this regard it seems clear to me that the Tribunal’s finding as to adequate state protection clearly encompassed both facets of the applicant’s claimed fear of persecution to the extent that they could in truth be said to be different. Reading the materials as a whole, the clear focus of the applicant’s claimed fear arose from his having disclosed the existence of the tunnels to the army during the conflict that was taking place in the camp. The Tribunal’s finding of state protection, in my view, clearly addressed all aspects of the applicant’s claim.
In my opinion, the finding that the Tribunal made was open to it on the country information available to it, not attended by any illogicality or other deficiency.
It follows, this being a freestanding basis upon which the Tribunal decided the matter and not infected by the unfortunate error in translation or any other aspect of error in the Tribunal’s decision, that the application must be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 3 November 2010