Nace v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1088

FEDERAL COURT OF AUSTRALIA

NACE v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1088

NACE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N179 OF 2004

STONE J
24 AUGUST 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 179 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NACE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	24 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 179 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NACE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	24 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Barnes; [2003] FMCA 589 in which her Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) having found that there was no jurisdictional error in the Tribunal’s decision. On 18 September 2002 the Tribunal had affirmed a decision of a delegate of the respondent refusing to grant the appellant a protection visa.

   THE APPELLANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. The appellant is a citizen of Uganda who came to Australia on 22 October 2000 as a representative of Uganda in the Paralympics swimming team.  In paragraphs [2]- [6] of her reasons for judgment, Federal Magistrate Barnes accurately summarised the factual background to the appellant’s claim and the decision of the Tribunal.  I gratefully adopt her Honour’s summary which is as follows:

   ‘In her protection visa application [the appellant] claimed that a customer of her mother’s small retail business had recruited her to spy on persons in hotels who were suspected of planting bombs in Kampala and to report suspicious looking persons.  She understood that Sam, the person who recruited her, worked for the UPDF (Uganda Peoples Defence Force).  She claimed that she did not observe anyone suspicious and that she reported this to Sam each Sunday when he visited her home.  She also claimed that her mother had been the subject of extortion by persons whom she suspected were members of the ADF (Allied Democratic Forces) who were fighting the government.  She claimed that the family was in crisis and that she was working for the UPDF against her will and that her mother was supplying food to the ADF against her will.  Her mother had told her not to return to Uganda.  In her application to the Tribunal she claimed that as a woman she was a member of a particular social group in Uganda.  She claimed that as she had a working knowledge of the UPDF intelligence operations her life was in danger if she returned to Uganda and as she had lost her father (who had died in 1979) she had no male figure to protect her.

   The Tribunal held a hearing on 12 August 2002.  In the hearing the applicant clarified that in July 1999 she had been asked to work for Sam.  She suggested to the Tribunal that he worked for the ISO (Internal Security Organisation).  She made an additional claim that she had been provided with a “radio” through which she was told what to do and where to go and that she was required to record conversations in the bars she was told to visit.  She claimed that she handed in tapes to the barmen as instructed and that she worked three times a week in this activity from July 1999 until February or March 2000.  She also claimed that she had been given a second job by Sam in February or March 2000 to act as a female decoy, to involve herself with a man who was wanted by the government and then to poison him.  She claimed that she refused this job and as a result she was threatened.  Subsequently she was allowed to discontinue her surveillance work in the bar although she was warned by Sam because she refused the poisoning task.  She claimed that shortly afterwards her mother’s shop was vandalised and that she and her mother had received anonymous threatening letters.  She went to stay with her grandmother, but after she had been there about three months the house was “hit” from the outside and part of it collapsed.  Her mother continued to encounter difficulties in the shop.  At the same time the applicant was involved in a swimming programme and from early 2000 on was training for the Paralympics.  The applicant claimed that if she returned to Uganda she would be required to kill the man wanted by the government and that then she would be killed.  The Tribunal put a number of inconsistencies and concerns about the applicant’s claims to her (in particular the fact that her additional claims, relating to the decoy and killing jobs, the attack on her mother’s shop and the threatening letters she claimed to have received, were raised for the first time before the Tribunal and were not referred to in the original application).  It also raised with her its view that her claims were implausible.

   Tribunal decision

   In its reasons for decision the Tribunal found that the applicant was not a credible witness.  It found that the applicant’s claims were inconsistent at various stages including within the hearing, that they were utterly implausible and not supported by independent evidence.  It accepted, on the basis of independent evidence, that there were incidents of bombing in Kampala during 1998 and 1999 which were well-documented and that the government had established a specialised police anti-terrorism squad.  It rejected as utterly implausible a claim that an inexperienced young woman would be recruited as a spy as the applicant claimed.  It also rejected as implausible the claim in relation to the decoy and killing job that she said she had refused to do for the ISO.  It had regard to the fact that no serious harm had befallen the applicant as a result of her claimed refusal and that she had continued her regular routine of swimming training thereafter.  It found such claim to be lacking in credibility and also rejected the claim that she had received threatening letters.  Her claims were said to be mere assertions and were found not to be based on true incidents involving the applicant.  The Tribunal found, given the stability of the present government, that any harm suffered in 1979 (the year the applicant was born) which killed her father and brothers and left her with a disability was a one-off event.

   The Tribunal was prepared to accept the claims concerning the break-in to the applicant’s mother’s shop, but found that any intimidation or extortion related to the mother’s role as a shopkeeper.  It was also prepared to accept that the applicant’s grandmother’s home was knocked down or damaged in some way.  However it regarded these incidents as separate and individual incidents and not part of a series of events designed to harm the applicant for Convention reasons.

   The Tribunal was not satisfied that the applicant had suffered harm, let alone harm amounting to persecution, for a Convention reason in the past. It was satisfied that the chance that such harm would befall the applicant in the reasonably foreseeable future was remote.  It was not satisfied that the [appellant] had a well-founded fear of persecution within the meaning of the Convention.’

   THIS APPEAL

3. The appellant raises seven grounds of appeal, five of which relate to aspects of the Tribunal’s reasoning that were raised before the Federal Magistrate and were rejected.  The re-agitated grounds are that:

   1.the Tribunal failed to find a nexus between the events the appellant claimed had occurred;

   2.the Tribunal failed to characterise the motivation of the alleged attacks on the appellant in the manner claimed by the appellant;

   3.the Tribunal failed to consider whether the appellant faced harm because of her membership of a particular social group, namely young women spies;

   4.the Tribunal overlooked issues and contentions as a result of inadequate interpretation because the interpreter was suffering a head cold; and

   5.the Federal Magistrate failed to identify and apply the legal requirements of translation and standards of interpretation necessary to provide a lawful basis for the Tribunal’s decision.

4. The appellant also raised two new grounds of appeal.  The first is that the Tribunal denied the appellant procedural fairness by not giving her an opportunity to respond to its concerns about the appellant’s credibility.  It is a little difficult to understand the second new ground of appeal but it appears to be a claim that the Tribunal raised in the appellant a ‘legitimate expectation’ that it accepted her account of her experiences thus depriving her of the opportunity to address the Tribunal’s concerns.

5. The respondent submitted that leave to raise these issues should be refused.  It was submitted that: the questions raised are not purely questions of law that arise on facts established beyond controversy; if these issues had been raised below the respondent would have run its case before the Federal Magistrate differently as, for example, by seeking to cross-examine the appellant; and to allow the appellant to raise them now would prejudice the respondent and therefore leave should not be granted. 

6. It is well-established that an applicant will be permitted to put a case on appeal that was not put at the trial only in exceptional circumstances where the interests of justice require it and such a course can be taken without prejudice to the respondent; Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292; Water Board v Moustakas (1988) 180 CLR 491 at 498. A party who is unrepresented, speaks little English and is unfamiliar with the Australian culture and legal system, as is the case with many applicants for protection visas, might succeed in meeting that requirement.

7. In this case, however, the appellant was represented by counsel before the Federal Magistrate and these matters could and should have been raised at that stage.  I accept that the respondent would be prejudiced if these issues were to be raised now and, in my view, the interest of justice do not require it.  I am supported in this view by the fact that both grounds relate to the Tribunal’s conclusions as to the appellant’s credibility and it is clear that the Tribunal is under no obligation to put conclusions on credibility to an appellant, save for the situation where the conclusions are derived from material adverse to the appellant; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70 per McHugh and Gummow JJ. Leave to raise the two new grounds of appeal is denied.

   Ground one: Tribunal’s failure to find a nexus

8. The appellant claims that the Tribunal failed to find a nexus between the harm suffered by the appellant and the systematic harassment she later suffered, including her forced relocation to her grandmother’s house, the subsequent attack on that house and the extortion perpetrated on her mother.  The appellant also claimed that the Tribunal was wrong to consider the death of the appellant’s father and brother in 1979 (during the Idi Amin regime) as remote and unconnected with later incidents.  These grounds take issue with the Tribunal’s assessment of the appellant’s evidence and challenge, on that ground, the Tribunal’s findings of fact.  Mr Asuzu, counsel for the appellant, conceded this point.  The jurisdiction of this Court does not extend to reviewing the Tribunal’s decision on such issues and for this reason the claim must be rejected.

   Ground two: motivation

9. The appellant claims that the Tribunal failed to identify the motive behind the attacks on the appellant’s grandmother’s house and the extortion of her mother.  The Federal Magistrate dealt with this submission in detail and stated at [13], 

   ‘the Tribunal considered the intimidation and extortion suffered by the mother but concluded that it related to her business and was not part of a series of events designed to harm the applicant or for a Convention reason.  These findings were open to it on the material before it.  The applicant’s claims concerning the extortion of her mother were contradictory and inconsistent with any connection with the applicant’s claims relating to her work for the ISO.’ 

10. At the hearing of her appeal, the appellant also submitted that the Tribunal’s conclusion that the motive behind the attacks was business-related was a finding adverse to the appellant and that s 424A of the Migration Act 1958 (Cth) required the Tribunal to put it to the appellant for comment. This ground of appeal cannot be sustained. Section 424A does not require the Tribunal to invite the appellant to comment on its conclusions where these conclusions are based on evidence that the appellant put to the Tribunal. In any event the crucial element here is that the appellant’s submissions as to the motive behind these events depended on the Tribunal having accepted her claim to having been enlisted as a spy. The Tribunal had emphatically rejected these claims not only because they were inherently implausible but also because of inconsistencies in the appellant’s account from time to time. This ground of appeal must be rejected, as merely an invitation to this Court to reconsider the merits of the appellant’s claim.

    Ground three: membership of a particular social group

11. The appellant claims that the Tribunal erred by not accepting that she was a member of a particular social group that consisted of young women spies.  This submission can be dealt with briefly.  As outlined by the learned Federal Magistrate, the Tribunal did not fail to consider this aspect of the appellant’s claim; rather the Tribunal rejected the claim because it simply did not believe the appellant’s claim that she was, or had ever been, a young woman spy.  It was open to the Tribunal to make this finding.  This ground of appeal cannot be sustained. 

    Grounds four and five: interpretation before the Tribunal

12. At the hearing before the Tribunal the appellant relied on interpretation from her native Lugandan (a Bantu language) to English.  The appellant claims that the standard of interpretation was inadequate.  She attributes this, in part, to the fact that at the time the interpreter was unwell with a head cold and was coughing and sniffing throughout the proceeding.  The appellant claims that the Tribunal’s failure to provide a competent interpreter or to adjourn the hearing until the alleged problems could be remedied resulted in a denial of procedural fairness.  It is relevant to note in this regard that the appellant did not request an adjournment of the Tribunal hearing.

13. The learned Federal Magistrate dealt with this submission in detail in the court below at [14] – [42].  Her Honour had reviewed a transcript of the Tribunal hearing submitted by the appellant as well as a corrected version of that transcript submitted by the respondent.  Having had the benefit of these two transcripts as well as having listened to the recorded tapes of the hearing her Honour accepted the amended version submitted by the respondent as ‘the more accurate rendition of the English used in the hearing.’  The appellant did not dispute this finding either before her Honour or on appeal.

14. I do not propose to repeat here the Federal Magistrate’s detailed analysis of the many complaints made about the interpretation.  It is pertinent to note that her Honour stated at [24]:

    ‘Insofar as possible on the evidence before me I have considered the standard of interpretation taking into account factors such as the responsiveness of interpreted answers to questions asked, the coherence of those answers, the consistency of one answer with another and with the rest of the applicant’s case and any evident confusion in exchanges between the Tribunal and the interpreter.  … Considering the English transcript as a whole there are virtually no instances of non-responsiveness.  The answers recorded in English are coherent and internally consistent.  There is no evidence of significant confusion in exchanges between the Tribunal and the interpreter.’

15. Her Honour accepted that the translation was ‘less than perfect’ and noted that the appellant’s claims that the translation was ‘incomplete, incompetent, uncertain, improper, deficient and inaccurate’ were based, ‘not on a translation of the whole of the hearing but on complaints about particular aspects of the hearing’.  Her Honour continued at [38]:

    ‘The applicant invited the Court to draw inferences about the standard of interpretation throughout the hearing based on the limited material before the Court.  However, in the absence of a complete translation it is not possible to determine whether there were errors other than those suggested which were material to the conclusions of the Tribunal adverse to the applicant. … Although evidence of an inaccurate translation of particular aspects of a hearing may, in a case the translation relates to critical issues, be such that an inference should be drawn that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence, this is not such a case.’ 

16. At the hearing of the appeal Mr Asuzu was not able to point to any error in the Federal Magistrate’s reasons, instead repeating what was put to the Federal Magistrate.  I am not able to discern any error in her Honour’s reasons and this ground of appeal must be rejected. 

17. The appeal is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:        

Dated:             24 August 2004

Counsel for the Appellant:	Mr I Asuzu
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 July 2004
Date of Judgment:	24 August 2004