S1838 of 2003 v Minister for Immigration - [2005] FMCA 741

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1838 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 741

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of Bangladesh – no reviewable error.

PRACTICE & PROCEDURE – Procedural fairness – where Applicant is illiterate – where Applicant claimed to have difficulty hearing for medical reasons – no medical evidence presented.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.474, 477

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) FCAFC 146
SGLB v Minister for Immigration & Multicultural Affairs (2004) 78 ALJR 992

Applicant:

S1838 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1375 of 2004

Delivered on:

18 May 2005

Delivered at:

Sydney

Hearing date:

18 May 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Nanson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1375 of 2004

S1838 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision made by the Refugee Review Tribunal on 25 May 2000. The Tribunal handed down its decision on 20 June 2000. In its decision the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The background to this matter is that the Applicant is a citizen of Bangladesh. He arrived in Australia on 23 July 1999. On 20 August 1999 he lodged an application for a protection visa. On 28 October 1999 a delegate of the Minister refused his application. The Applicant applied to the Refugee Review Tribunal for a review of that decision on 30 November 1999.
The Applicant attended a hearing of the Tribunal and he was accompanied by his brother. The Applicant speaks Bengali and a Bengali interpreter was made available for the hearing. The Applicant presented the Tribunal with a written statement which was prepared for him by his migration agent, Mr Haque. In that statement the Applicant pointed out that he is illiterate, he cannot read and he cannot write except to sign his name in the Bengali language. He does not speak English.
In the statement he set out that he was a member of the Jatiya Party in Bangladesh. He said that he was beaten several times by activists of another political party. He said he did not go to the police because the police are corrupt in Bangladesh. He said that the police always served the vested interests of the ruling party. The Applicant said that he was attacked by a group of thugs who were supporters of the Awami League. He said the Awami League thugs beat him severely and he was seriously injured. He was admitted into a private clinic for treatment. He claimed that after he had been beaten by the Awami League thugs his life was in danger. He said that friends and relatives suggested that he should leave the country as soon as possible. Eventually he says that his political opponents filed a false case against him. That persuaded him that he had to leave Bangladesh.
The Tribunal decided that the Applicant's claim would not be successful. The Tribunal member described his behaviour at the hearing as bizarre. The Tribunal did not accept the credibility of the Applicant's account of his difficulties. The Tribunal noted that the Applicant could not provide any details about his role in the Jatiya Party. At page 80 of the Court Book the Tribunal said that it put to the Applicant that he knew virtually nothing about anything relating to the Jatiya Party. The Tribunal put to the Applicant that his history in his original statement prepared by his migration agent was full of facts about which he knew nothing. The Tribunal also says that the Applicant told him that when he went to see his migration adviser he said:
I just told him to write whatever he knew. I just told him to fill in the gaps. I said I don't know anything so you'd better write the story.
I put those matters to the applicant at the hearing today. He said that maybe he had said those things but he did not hear the Tribunal member properly. The Tribunal member, at page 84 of the Court Book, said that the Applicant's admission to the Tribunal was critical and fatal to his credibility. The Tribunal member went on to say this:
He admits that he instructed his adviser to fabricate a history and claims for him. In those circumstances, none of his evidence can be given any weight. I find that the applicant was not a credible witness. I do not accept any of his claims as being true.
I should make it clear that assessment of the credibility of a witness is a task for the decision maker and not a task for the Court conducting judicial review.
The Applicant filed an application for review of the Tribunal's decision and on 11 October 2004 filed an amended application. The Applicant claims that he was denied procedural fairness when the Refugee Review Tribunal did not conduct the hearing fairly and freely. The Applicant said that he was not understood and that there was a communication gap between, presumably between him and the Tribunal. The Applicant said that:
The denial of procedural fairness constituted denial of natural justice. By doing so, the Refugee Review Tribunal made a jurisdictional error.
The Applicant says that the Tribunal did not give consideration to the fact that he is illiterate and to the fact that he had difficulty hearing. He says that this attitude by the Tribunal led to a denial of procedural fairness. This denial of procedural fairness amounted to a denial of natural justice. The Applicant was not legally represented at the hearing today. He presented his submissions with the aid of a Bengali interpreter. I am satisfied that the interpreter at the proceedings today has provided the same high standard of interpreting that the Court expects from all of its interpreters. I accept that it is a very difficult task to interpret for the purpose of Court proceedings.
I note that the Applicant is illiterate in that he cannot read or write. The Tribunal quite clearly took the illiteracy into account. At the proceedings before me today the applicant was accompanied by his younger brother. I permitted the younger brother to act as a "Mackenzie friend". A Mackenzie friend is permitted to sit with a party, make notes for them and assist them in dealing with their case. A Mackenzie friend is not, of course, a lawyer and cannot act as a lawyer. I have formed the view that the Applicant's brother has performed his role to the best of his ability. He seemed to me to be well and truly aware of the issues and was doing his best to make sure that his brother knew exactly what was going on. At times he even made some submissions on the Applicant's behalf, which I permitted over the objection of the solicitor for the Respondent.
The Applicant pointed out that he was sick at the time of the Tribunal hearing and could not hear properly. The Tribunal member makes it clear that he was aware of that. The Tribunal accepted that the Applicant had consulted a doctor for his hearing problems, some three days before the hearing. The Applicant presented to the Tribunal a prescription which he had received from the doctor. This is set out at page 78 of the Court Book. The prescription was for a substance called Waxol. Waxol is a common medication prescribed for use in the ear. It is common knowledge that Waxol is designed to loosen impacted wax in the inner ear so that a person's ears can be syringed. It is also common knowledge that if a person has a wax build up in the ear that this may affect their hearing.
The Applicant told the Tribunal that he had had a hearing problem for about three months. The Tribunal considered whether the matter should be adjourned so the Applicant could be examined by the Commonwealth medical officer. The Tribunal member notes on page 78 that he decided not do so because the Applicant was obviously, to him, able to understand the questions that were being put to him and translated by the interpreter. The Tribunal also noted that the Applicant's doctor contacted the Tribunal later on the day of the hearing. The doctor told the Tribunal that he had seen the Applicant on one occasion before the hearing, on 29 April 2000. The doctor diagnosed the applicant's ear problem as a middle ear infection. The doctor indicated that the Applicant could have had a problem with his hearing, although he did not appear to have such a problem on the day that the doctor examined him.
The Applicant and indeed his brother were critical of the interpreter who acted at the Tribunal hearing. They criticised the interpreter for speaking in a loud voice. On one occasion the Applicant said that the interpreter was shouting at him. He also said that the interpreter said:
I cannot stay long so I will have to leave.
I stress that these criticisms were applied to the interpreter at the Tribunal hearing and not to the interpreter acting in the proceedings before me.
The fact is that the Tribunal member did not accept the Applicant's account of his persecution in Bangladesh. The Tribunal did not accept that the Applicant was a credible witness.
The Respondent has referred me to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) FCAFC 146 and also to SGLB v Minister for Immigration & Multicultural Affairs (2004) 78 ALJR 992. As the Respondent submits, while the circumstances of the hearing including the health, mental or otherwise of an applicant, may affect the validity of the Tribunal's decision, an applicant who relies on that ground must prove the factual bases on which the argument rests. The Applicant must prove, firstly, that he had a relevant medical condition. Secondly, that that medical condition affected his ability to understand the proceedings. Thirdly, the way in which that condition affected his ability to understand the proceedings meant that he was not given a reasonable opportunity to present his case. The Respondent submits that the Applicant has not proven any of those three grounds.
The Applicant provided some evidence that he had been treated by a doctor at the Tribunal hearing. The Applicant has said that he has had further treatment from that doctor but mainly for other matters. The Applicant has not provided any medical evidence to the Court today. The applicant has said that his hearing has improved since then. The Tribunal accepted that the Applicant had consulted a doctor for a middle ear infection but formed the opinion that the Applicant was able to understand the proceedings with the assistance of an interpreter. There is no evidence to the contrary. There is also no evidence that the Applicant's hearing problem meant that he was not given a reasonable opportunity to present his case.
The basic reason why the Tribunal did not accept the Applicant as a credible witness is because the Tribunal was satisfied that the Applicant had made up his story. More correctly, the Tribunal was of the view that the Applicant's story had been made up by his migration agent, a man called Sirajul Haque. It is not the task of a migration agent to fabricate a claim for an applicant. It may have been easier to do because the Applicant was illiterate and would not know what was in his statement because he could not read it. But it is not appropriate for an applicant to tell a migration agent to write whatever he knew.

It is not appropriate to say:
I don't know anything so you'd better write the story.
I am not satisfied that the Applicant's hearing difficulties were such that he could not understand the proceedings. I am satisfied that the Applicant should have been able to understand what the proceedings were about and that appropriate arrangements had been made to consider the fact that he is illiterate. The Tribunal member acted correctly, in my view, in considering whether an adjournment for a medical examination was warranted and the reason why the Tribunal member decided not to take that step is a reason that was open to the Tribunal member based on his observations of the Applicant before him.
In short, the Applicant has not proved that he suffered from such a medical problem that he could not understand the proceedings or present his case properly. The Applicant has not shown that the Tribunal made a jurisdictional error. As there is no reviewable error, the application must be dismissed.
In this jurisdiction costs follow the event. In other words, if a party is unsuccessful, he or she usually has to pay the other party's legal costs or a proportion of them. The amount of $4000 is well within the lump sum figures that the Court can award for a case of this nature.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 1 June 2005