MZYJW v Minister for Immigration
[2011] FMCA 534
•14 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYJW v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 534 |
| MIGRATION – Review of decisions – delegate of the Minister for Immigration and Citizenship – visa. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Applicant: | MZYJW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1397 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 14 June 2011 |
| Date of Last Submission: | 14 June 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 14 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person. |
| Counsel for the First Respondent: | Ms Symons of Counsel. |
| Solicitors for the First Respondent: | Clayton Utz. |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent. |
ORDERS
The Application filed on 8 October 2010 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $9,063.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1397 of 2010
| MZYJW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) of 8 September 2010 refusing an application to review a decision of a delegate of the Minister, declining to grant the applicant a protection visa under the Migration Act1958.
The applicant is a 35 year old male and citizen of Fiji. He has a wife and a daughter who remain in Fiji. His application stems from his concerns of being arrested and subjected to intimidation and mistreatment in Fiji. The applicant’s concerns arise from his claimed involvement in 2007 with the community with respect to anti-government demonstrations against the government’s alleged mistreatment of the High Chief Ratu, who was the chairman of Fiji’s Great Council of Chiefs.
The applicant’s concerns extended to activities that he claimed to have participated in with a youth group. The applicant claims that this drew adverse attention to himself from the government and the military.
The Tribunal in this matter received submissions and had a hearing. Ultimately, the Tribunal largely rejected the applicant’s case on the basis of credit, that is, they did not accept much of what he put to them. The Tribunal concluded that they did not accept that the applicant was at real risk of persecution.
The Tribunal gave a number of examples of matters that were before them that gave rise to concerns as to the applicant’s credit. For example, the Tribunal said:
[28] The applicant said that in June 2007 he was the leader of the Fiji Youth Movement in his village when they heard that soldiers were going to come to the village and take the chief. The applicant said he was one of the villagers who arranged a barricade outside his village to prevent the soldiers taking the chief away.
[29] He said that when the soldiers came, the chief was not in the village but was on a nearby island. The Tribunal asked why they would set up a barricade to protect the chief if he was not in the village. The applicant gave no coherent response stating that the chief was on an island not far away.
The Tribunal also identified another example:
[37] The Tribunal summarised his evidence up till that time and he confirmed that from October 2007 until February 2009 he had no trouble with the authorities as he had kept a low profile.
[38] The Tribunal brought to his attention the fact that this conflicted with his evidence given at an interview with an officer of the Department in April 2010 in which he stated that between 2008 and 2009 he had received plenty of beatings from the authorities in Tavua village. When asked to comment on the contradictory evidence he responded by saying that his brain didn’t work very well and he couldn’t remember dates.
The Tribunal went on to identify inconsistencies in paragraph 65 of its decision:
[65] The applicant’s provided evidence of his arrests and detention at an interview with a department officer and at the tribunal hearing. There were significant inconsistencies in this evidence about both the number of arrests and when they had occurred. When confronted with these inconsistencies the applicant failed to provide any adequate explanation either at the hearing or in response to a 424A letter following the hearing.
The Tribunal, however, accepted that the applicant had been a leader in the village youth group in relevant years but did not accept that his role or activities created a political profile, as such, saying:
[73] The applicant claimed to be a leader of the village youth group between 2006 and 2009. The Tribunal accepts that the applicant was an active community member in his village and held a leadership role with a youth group until March 2009 however the Tribunal does not accept that his role or activities were at a level that created a political profile.
The Tribunal noted that the applicant had not had difficulty leaving the country, having also left the country on a previous occasion. They further noted that the applicant had been permitted to return to his home after questioning. The Tribunal concluded both factors indicated that the government or military regime did not have an adverse interest in the applicant that placed him at risk of persecution.
Ultimately, the Tribunal concluded:
[91] The Tribunal finds that any anti-government activities engaged in by the applicant since his arrival in Australia have been motivated by the desire to strengthen his claim to be a refugee. The Tribunal has therefore disregarded his conduct in Australia in considering his claims.
[92] The applicant has lived his entire life in the same village in Fiji. The Tribunal accepts that he had a leadership role with the village youth group from 2006 to 2009. He claims to have been in detention on four occasions in 2007 when he was not significantly harmed. He has twice been allowed to leave his country in recent times without interference from authorities. These circumstances lead the Tribunal to find he has no basis for a well founded fear that he may face persecution or death should he return to Fiji now or in the foreseeable future.
CONCLUSIONS
[93] Considering the applicant’s claims, both individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm amounting to persecution on account of his political opinion, imputed political opinion, membership of a particular social group or for any other Convention reason now or in the reasonably foreseeable future. He is not a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Interpreter Issues
When the case first came before this Court for hearing, the applicant stated that he required an interpreter as his first language is Fijian and not English. A telephone interpreter was engaged as the Court had not booked one, not being aware that the applicant would require an interpreter. As the hearing unfolded, it transpired that there were issues as to whether or not the applicant had an interpreter at the hearing before the Tribunal and indeed whether he needed one. There were also issues concerning some emails that were sent to him by family members, copies of which he forwarded to the Tribunal. The emails were in a Fijian dialect language and it appeared untranslated before the Tribunal.
The matter was adjourned to allow the applicant to put in any further material and to ensure that an interpreter was present so that the applicant could have every opportunity to put his case before this Court.
Issues as to whether or not the applicant ought to have had a translator at his hearing before the Tribunal
It is clear that the Tribunal’s practice is to request that applicants advise if a translator is required and to provide qualified translators to ensure that parties before the Tribunal receive a real hearing on the merits.
In this case, the applicant received an invitation to attend at the hearing, a copy of which is at page 106 of the court book. In bold type in the middle of the page it says:
Interpreter: please advise immediately if required.
The applicant also received various information sheets. The applicant provided a response to the Tribunal in which he filled out a pro forma specifying the answer ‘no’ to the question ‘Does anyone need an interpreter?’. The applicant attended at the hearing with his migration agent who was present throughout the hearing before the Tribunal. The transcript of that hearing has been placed in evidence before me.
Today the applicant challenged the veracity of the transcript, pointing out that in one passage, he was transcribed as using a particular word “gathering” at page 10, line 23 of the transcript, saying that he never used that word.
The matter was adjourned this morning, and facilities were made available for the recording, which are on CD, to be played so that the parties could listen and verify the transcript. When the matter resumed, there was no longer a dispute that the transcript accurately transcribed what occurred at the Tribunal hearing.
When reading the transcript, it is apparent that the applicant must have understood what was going on. He gave responsive questions, often transcribed to three or four lines of text.
I asked the applicant to provide any specific examples that he could of passages in the transcript where his language skills had prevented him from being able to properly put his case. The applicant referred to page 12, line 5, a passage where he discusses the incidents and the chief of the village. The applicant stated that he had not been able to expand upon the cultural importance of the chief. I am not convinced that this was in fact the case and in any event, the passage itself appears to make clear what the gist of the issue was: there was an alliance by the people in the village with the chief and reverence and respect for him.
I would have thought that in any event a Tribunal member would have had sufficient cultural insight to understand the importance of chiefs of local villages or areas in most societies around the world.
Whilst I acknowledge that the grammar and the tense of some of the verbs are less than a perfect rendition of statements in English, they are certainly not errors of such significance as to make it difficult to understand what it is that the applicant was saying. I am not persuaded that the applicant was unable to put his case before the Tribunal. Nor am I persuaded that his grasp of the language, as demonstrated by the transcript, was such as to deny him having a hearing in a meaningful sense of the Tribunal understanding what he was saying and him being able to respond in a responsive way to the questions.
I therefore find that the applicant’s claims that he was denied a proper hearing because of a lack of interpreter are not made out. It seems that he engaged sufficiently to have a real hearing. The applicant never sought an interpreter. He was present with a migration agent who never sought to intervene and request an interpreter or adjourn the hearing. The transcript has been accepted by the parties after listening to the recordings and the transcript itself demonstrates a clear understanding and level of responsiveness that could only come with sufficient understanding of the language.
The second issue is with respect to the emails. There are a number of emails that appear in the court book at pages 43 to 45 that are in Fijian, not in English. It transpired during the course of argument today through the interpreter that much of it is not actually in the standard generalised Fijian used throughout the country but in the local dialect used in the applicant’s particular island or village province. As a result, the interpreter was not able to fluently interpret them, advising that in the past when she had to interpret some of the dialects, she had had to consult reference texts to do so.
The applicant outlined through the interpreter the gist of what the emails were about. In substance, the emails contained what family members have told the applicant about soldiers checking for him and coming around to see when he was coming back to Fiji. Whether loose translations had actually been provided or not is not entirely clear from the material. At page 70 onwards of the court book, a number of emails are set out in a way that does have the appearance of loose translations of those emails, although certainly not formal translations.
The applicant received notice that documents provided to the Tribunal needed to be in English or with a translation. This appears at page 99 of the court book. I acknowledge that not all applicants will have the resources to be able to provide certified translations and indeed in languages such as the language in this case, it may be difficult if not impossible to find a translator who is certified at the appropriate level normally used by the courts to be able to do that interpreting. This does not prevent other evidence being given or at the very least an applicant outlining the importance of that evidence to the Tribunal and requesting that the Tribunal obtain a translation if need be.
In this case, the transcript of the Tribunal hearing demonstrates that there was some discussion about the issues referred to in the emails at page 23, line 38 of the transcript. There is a discussion about him receiving emails, with the applicant saying in response:
They write to me about some of the meeting that we held some few months ago. Then I told them I don’t know anything about the meeting. We didn’t have that meeting. They came and asked me about when I will come back to Fiji…
There is then further discussion about who the persons were who had sent the email and then the discussion goes on to consider the level of risk involved for the applicant in this case. The Tribunal then touched upon this aspect of the evidence in its decision at paragraph 75:
[75] The applicant claimed that he had been warned the authorities were interested in him because he had been arranging meetings before he left to come to Australia. He gave evidence that his political involvement was when he organised meetings as a youth group leader. The Tribunal notes it was the applicant’s own evidence that he had not been in a leadership role with the youth group for over six months before he came to Australia. It therefore does not accept the authorities have any interest in him for the reason claimed.
More generally the Tribunal stated:
[84] In considering the information on the Department’s file and the post hearing submission received from the migration agent dated 21 July 2010, the Tribunal does not believe that it provides any new evidence to strengthen the claims of the applicant.
Notably, paragraph 75 appears to accept some of the evidence that is touched upon in the emails, although stating that the Tribunal does not accept that the authorities have any interest in the applicant for the reasons that he claimed.
Ultimately, it is clear that the Tribunal had regard to the evidence that was covered in the emails, had discussions with the applicant at the hearing about the emails, and did not ultimately reject the bare propositions contained in the emails, as shown in paragraph 75 of their decision. In these circumstances, the absence of a formal translation of the particular emails does not advance the applicant’s case. I therefore do not find that the applicant has made out this ground for review.
Grounds in the Written Application
The more formal grounds that the applicant had in his appeal application document – which I assume was prepared by someone else, given what he says is his state of language skills – and the references in it, need to be considered.
The first ground is a claim that the Tribunal failed to consider the applicant’s evidence. A perusal of the transcript demonstrates that the Tribunal, over a course of 32 pages, inquired in considerable detail into the applicant’s circumstances and the details of the case that he puts forward. It is clear from the terms of that transcript that the Tribunal member must have been familiar with the file that the Tribunal was dealing with, that is, at least the material in the court book.
As appears later in this judgment, the Tribunal had also sent a s.424A letter to the applicant, providing him a further opportunity to provide more material, given the details of the case and the material before the Tribunal. It is, as counsel for the Minister points out, trite to say that it is not necessary for the Tribunal to refer to every piece of evidence. Indeed, in longer cases, no decision maker could refer to every piece of evidence without writing a decision that runs for as long as the trial or hearing itself.
In this case, the decision is not brief; it runs for some 15 pages over 94 paragraphs. It covers the significant matters and the significant evidence. The decision also demonstrates, when read in conjunction with the transcript, that the Tribunal turned their mind to the various pieces of evidence before them. I am not persuaded that the applicant has made out this ground.
The applicant submitted that the Tribunal had breached its obligations under s.424A of the Act in failing to identify information that would be part of the reason or reasons for affirming the decision under review.
In this case, a s.424A letter was sent on 7 July 2010. The relevant part is as follows:
The particulars of the information are:
· At interview with a delegate of the Department on 27 April 2010 when asked about the time you were arrested by the military following the street blockade, you said you were taken to the police station where you were subjected to beatings and poked with a gun barrel.
· At the Tribunal hearing on 6 July 2010 when referring to the same incident, you stated that you had been taken from your village to the military barracks at Lautoka.
· At the interview on two occasions in response to questions you said you had been arrested seven times, while at the hearing you claim to have been arrested on a total of four occasions.
· At the interview you told the delegate you first came to Australia for a Christmas holiday with your brother while you told the hearing the purpose of your visit was to attend a wedding.
This information is relevant to the review because subject to any comments you might make the inconsistencies in these answers may lead the Tribunal to believe that in these matters you were not a reliable witness which may be a reason or part of the reason for the Tribunal to affirm the decision under review.
There could be argument as to whether the Tribunal were required by s.424A to send a notice with respect to these particular matters. The fact that the Tribunal have done so demonstrates that they were concerned to give the applicant every opportunity to provide material about the case and to alert the applicant to the fact that the Tribunal had real concerns with the inconsistencies of various answers that he had given to the Tribunal and in earlier documents.
The notice was responded to by the applicant’s agent, as appears in the court book. In these circumstances, I am not persuaded the applicant has made out this ground and nothing else has been identified which could arguably be the subject of a 424A notice as required under the Act.
The applicant submitted that the Tribunal breached its obligations under s.425 with respect to the hearing process. It appears that the applicant has had a proper opportunity to appear, to be heard and to put his case. Indeed it is difficult to see what more the Tribunal could have been expected to do in order to provide a proper hearing for the applicant in this particular matter, given the material that was placed before the Tribunal and representations made to it.
Finally, the failure to provide an interpreter does not appear to be an error on the part of the Tribunal, given that one was not requested, the applicant was there with an agent, and the transcript demonstrates the applicant was clearly able to participate in a meaningful way in the hearing.
In the circumstances, I have therefore found no grounds that the applicant has succeeded on and I must therefore refuse the application.
[Further argument ensued as to costs.]
In this matter, I order that the applicant pay the first respondent’s costs. The applicant was entirely unsuccessful. The reasonable costs based upon the Federal Magistrates Court scale appear to me to be as follows: part 2, item 1C, $5865 being the standard scale fee for proceedings of a migration application.
In this case however, there was a second hearing date and a further affidavit, recordings obtained, and a transcript provided as a result of the issues that the applicant had raised. This has necessitated a second hearing day with a barrister who had a brief marked with the fee of $1320. The solicitor was present on the second day and the first day had been only a half day, at $835. The solicitor quite properly had to undertake the work of obtaining the recordings and then arranging for them to be transcribed, obtaining the transcript and then annexing it to an affidavit to be filed and served.
All of this work takes time and effort and fortunately the solicitor was quite diligent in the preparation so that when further issues arose at court today as to the veracity of the transcript, because she had brought along her entire file the CDs were able to be produced and able to be played. It seems to be roughly a quarter day’s work when one adds up all the work that was involved in preparing for the transcript issue, which on the scale fees would be $417. The cost of the transcript was incurred by the Minister at $626.
The applicant’s case required recourse to the transcript and the applicant did not have the funds to provide a transcript as would ordinarily be expected. Due to the nature of the issues raised by the applicant, the Minister quite properly provided the transcript to ensure that the hearing could proceed on all issues that the applicant had raised. It appears to me to be entirely proper that the applicant should pay the transcript costs. In these circumstances, the Minister should receive the cost of the transcript as part of the costs in the proceedings.
The items discussed come to a total of $9063. I therefore order that the applicant pay the first respondent’s costs fixed at $9063.
The applicant raised questions about payment arrangements. It is more appropriate that the applicant take the issue up with the Minister’s solicitors. If a dispute as to payment arrangements arises, it remains open to the applicant to apply for a time-payment order.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 14 June 2011
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