SZBLY v Minister for Immigration

[2005] FMCA 922

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBLY v MINISTER FOR IMMIGRATION [2005] FMCA 922

MIGRATION – Review of decision of RRT – where the hearing invitation was sent to the migration agent and not directly to the applicant – where the applicant alleged that the quality of interpreting service provided was so poor that it caused a breach of section 425 of the Migration Act – where the Tribunal did not provide the applicant with a copy of an article that supported the applicant’s claim.

Migration Act 1958, ss.53(4), 53(5), 425(1), 441(G), 425

SAAP v Minister for Immigration [2005] HCA 24
Lee v Minister for Immigration [1999] FCA 1147
Makhu v Minister for Immigration [2004] FCA 221
ApplicantP119/2002 v Minister for Immigration [2003] FCAFC 230
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Minister for Immigration; Ex parte Miah [2001] HCA 22
NAHI vMinister for Immigration [2004] FCAFC 10
SZNAK v Minister for Immigration [2004] FCA 1478
NAQS v Minister for Immigration [2003] FCA 1137
NAST v Minister for Immigration [2004] FCA 86

Applicant: SZBLY

Respondent: MINISTER FOR IMMIGRATION & MULTICULUTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1926 of 2003

Judgment of: Raphael FM

Hearing date: 29 June 2005

Date of Last Submission: 29 June 2005

Delivered at: Sydney

Delivered on: 6 July 2005

REPRESENTATION

Solicitor for the Applicant: Mr M Jones

Counsel for the Respondent: Mr T Reily

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The court declares that the decision of the Refugee Review Tribunal made on 29 July 2003 is invalid and of no effect.

2. The application be referred back to the Tribunal differently constituted to be heard and determined according to law.

3. Respondent to pay applicant’s costs assessed in the sum of $4,250.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1926 of 2003

SZBLY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. He arrived in Australia on 5 February 2001. On 20 March 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 24 May 2001 a delegate of the Minister refused to grant a protection visa and on 20 June 2001 the applicant applied for review of that decision. On 16 November 2001 a business known as Shirin’s Migration Advice and Solution, the proprietor of which is Mohammed Shah Alam Syed, wrote to the department advising that it had been instructed to act on behalf of the applicant and provided a Form 4956 indicating the agent was a person who could receive notices on behalf of the applicant. On 20 December 2002 the Tribunal wrote the standard hearing invitation letter and sent a copy to the applicant at the address it had for him as well as to “Shirin’s Migration Advice and Solutions”. I am informed that the notice sent to the applicant was returned to sender. However a response to hearing invitation was received on 7 January 2003 signed by the applicant noting that his authorised recipient was Mr Syed of Shirin’s Migration Advice and Solution. The hearing took place at 2pm on

   
   

   21 January 2003. Mr Syed did not appear.

2. The first matter raised by Mr Jones on behalf of the applicant was that the sending of the hearing invitation to Shirin’s Migration Advice and Solution as opposed to Mr Mohammed Shah Alam Syed of that firm failed to comply with s.425(1) of the Migration Act 1958 (the “Act”) subject to the effect of s.441(G) of the Act. The applicant argued that since the decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24 at [77] strict compliance with apparently mandatory sections of the Act was required. In Lee v Minister for Immigration [1999] FCA 1147 Gyles J held at [40] that ss.53(4) and 53(5) of the Act require the specification of a natural person as a person to whom notifications may be sent by the Minister to the applicant. But in Makhu v Minister for Immigration [2004] FCA 221 Mansfield J held that the sending of a letter under s.359A to the applicant’s migration agent but addressing it to the applicant at the migration agent as opposed to the migration agent itself did not constitute jurisdictional error. I cannot see that there was any failure to comply with the provisions of the Act by sending the hearing invitation to the migration agent by the name of the firm of which he was a principal. But even if I am wrong in that I would exercise my discretion to decline to remit the matter to the Tribunal on this ground because it is quite clear that the applicant’s migration agent received the document, told the applicant about it and that the applicant then attended the hearing.

3. Having dealt with this preliminary issue it now behoves the court to consider the other matters raised by the applicant. The applicant had two grounds upon which he asserted a well founded fear of persecution for the Convention reasons of political opinion and membership of a particular social group. The first related to his membership of the Bangladesh National Party of which he was allegedly a veteran leader. He stated at [CB 145]:

   “I was detected by the government (AL) authority and their thugs. I was not able to lead my normal life. I was seriously interfered with personal freedom. My family home was attacked by my opponent activist. I was under constant surveillance and I was inactive with my civil life. To stop me form (sic) my political activities a false case of anti state activities was filed against me and a warrant of arrest was issued. I went in hiding. I experienced severe traumatic situation at that time. I had no other alternative but to leave the country to get rid of this unfavourable situation.”

   The Tribunal dealt with this allegation at [CB 183] when it said:

   “The applicant has however stressed that it is the Awami League he fears. Whatever his experiences may have been in the past, of threats and harm to him from that party using the police and other resources then available to them, that party is now out of government.”

4. The second claim made by the applicant was that he was a member of a particular social group, namely Bangladeshis who, while not being Hijra themselves, worked actively for the improved treatment of that group. It is in relation to this claim that the applicant alleges jurisdictional error.

5. The applicant was not accompanied to the hearing by his migration agent but did have the services of an interpreter. The applicant alleged that the quality of interpreting service provided was so poor that they caused a breach of s.425 of the Act because he was effectively prevented from giving evidence: ApplicantP119/2002 v Minister for Immigration [2003] FCAFC 230 at 15-17. The respondent conceded that if I made such a finding jurisdictional error would have occurred but submitted that the evidence of the applicant did not go that far.

6. The evidence which the applicant submitted was a copy of the transcript. What I did not have, and what the Full Bench had in Applicant P119, was a further affidavit of another interpreter who had listened to the tape and could point out whether or not the original interpreter had failed to interpret correctly what the applicant had said. Mr Jones argued that this was not necessary because it was quite clear from the transcript that the interpreter had considerable difficulty in translating the questions of the Tribunal to the applicant and obviously little experience in interpreting because he frequently moved from direct speech of the applicant into indirect speech. For example, at p10:

   “THE TRIBUNAL: Okay. Now if you go back you fear persecution from the Awami League?

   THE INTERPRETER: He’s thinking that if he – he he’ll go back then …he fears threat from the Islamic fundamentalist groups.”

   The examples of the interpreter not appearing to understand or be able to translate the questions are considerable. But the most important ones and ones which relate directly to the applicant’s association with the Hijra are set out below; on p3 the interpreter requests the Tribunal to repeat the questions on no less the four occasions. That occurs again on p4. On p5 the Tribunal says:

   “THE TRIBUNAL: Listen carefully to my questions, take notes if you want to, consider your answers well, confine yourself to the question as much as you can.

   THE INTERPRETER: Find yourself question?”

   There is then a lengthy statement by the Tribunal to which the interpreter says “sorry”. At p6 the interpreter moves from using the word “sorry” when he does not appear to understand what the Tribunal is asking to the word “and”. The matters required to be repeated on that page number four. On p7 the interpreter moves into indirect speech. On p11 examples of indirect speech are as follows:

   “THE TRIBUNAL: Did you give any money?

   THE INTERPRETER: To broker he has given some money to the airport official when he was coming, when he was leaving.

   THE TRIBUNAL: In your application you said you had no difficulty leaving and no difficulty getting travel documents and you are now changing that?

   THE INTERPRETER: He didn’t have any difficulty actually because he paid – paid some money to broker so he didn’t have any difficulty to leave the country. “

   The above indicates the general quality of the interpreting. At p16 the Tribunal moves on to discuss the applicant’s association with the organisation he calls Amal Manoush which was dedicated to the assistant of the Hijra, which is a group of persons, some transvestites, some eunuchs and some other sexes, who are allegedly the object of human rights abuses in Bangladesh and enmity from religious fundamentalists. At p16 the Tribunal says:

   “THE TRIBUNAL: And you’ve provided a copy of a constitution for that document, for that body there and you’ve told me that the majority of the group are homosexual.

   THE APPLICANT: No… this is one…of a small group of Bangladesh, their name…, they’re homosexual, they’re always live in the park, everywhere but the people of Bangladesh don’t like them.

   THE TRIBUNAL: Okay. My information is that there are 30,000 of them, again from the University of Dhaka and they’re transsexuals and hermaphrodites who want to be women. If there are homosexuals amongst them then they’re a very small number, you said they’re homosexual, the information is they’re not, they are hermaphrodite and transvestite, that’s what the study shows. Is that too difficult to translate?

   THE INTERPRETER: A bit, if you make it a bit ---

   THE TRIBUNAL: A little bit less, right. Yeah, right, I’ll draw from attention to the country information for Bangladesh. A study from the University of Dhaka that estimates the Hijra population at 30,000 comprised of hermaphrodites and transvestites.

   THE INTERPRETER: Sorry?

   THE TRIBUNAL: And transvestites and eunuchs.

   THE INTERPRETER:  Eunuchs?

   THE TRIBUNAL: Eunuchs, yes. Yes, either men who are born eunuchs or people who become eunuchs by being castrated.

   THE INTERPRETER: Okay.

   THE TRIBUNAL: There probably are homosexuals amongst them but they would be a minority from the descriptions. They have poor political rights and other human rights abuses involving these people. As far as the organisation you’re talking about, Amra O Manoush, in fact it is – it was formed by Hindus, low caste Hindus as you would know the word means we are also human. So low caste Hindus in north west Bangladesh.

   THE INTERPRETER: Sorry?

   THE TRIBUNAL: Low caste Hindus in western Bangladesh, right and there one group is for women and the other for men and its goal is to provide education, to provide education and improvements in health and hygiene for low caste Hindus. There’s no mention there of…in the group, you as being there. Now that the information I’ve got on that organisation, it would appear from there that you didn’t start it and it’s got a different focus altogether.

   THE INTERPTER: Sorry, what’s the last?

   THE TRIBUNAL: The applicant didn’t start the organisation and which he has claimed. Okay.

   THE INTERPRETER: I instituted it in Dhaka in Chittagong, not in the western part of Bangladesh.

   ...

   THE TRIBUNAL: But the group is about low caste Hindus. We’re about a different focus altogether, it’s a low caste Hindu group, why would you be starting it?

   THE APPLICANT: I study… group of Bangladesh, they’re…they live in the park.

   THE INTERPRETER: He started it in Dhaka and Chittagong to – and to organise…group, we call it in Bengali Hisra, I don’t know the English…

   THE APPLICANT: Eunuchs.

   THE INTERPRETER: Eunuchs and ---

   THE APPLICANT: Homosexual, eunuchs, same like this.

   THE INTERPRETER: Homosexual, and eunuch group to improve their lot.”

7. The questioning goes on in much the same vein with the interpreter saying “sorry” and the Tribunal never really getting a response to any of its questions. At p.20 there appears to be a total breakdown in the translation when the Tribunal says:

   “THE TRIBUNAL: Okay, but the group you’re handling has a very small number of homosexuals. As I pointed out to you, it’s hermaphrodites and eunuchs.

   THE APPLICANT: Yes, this is the phone number of group. I want to organise phone number of group.”

8. With the benefit of this discussion the Tribunal considers the applicant’s claims at [CB 181-185]. At [CB 181]:

   ”Dealing first with the particular social claim, the Tribunal noted that the applicant’s knowledge of the Hijra was not good. He did not know Hijra numbers, general geographic distribution major location and importantly, sexual characteristics. …To call the group “passively homosexual” or “predominantly homosexual” (see his oral evidence)… is not, the Tribunal finds, an accurate statement of their sexuality or of their physical capacities and proclivities.”

   I have not been able to find any reference by the applicant in his oral evidence to members of the group being predominantly homosexual. That is a statement that comes from the Tribunal which is responded to with the word “No”. [p16] The importance of this matter is that the Tribunal goes on to say at [CB 181]:

   “The distinction is critical, for the claim depends on persecution of the applicant to the extent of a religious death sentence, because of his support for a homosexual community.”

   The Tribunal continues its reasons by making findings concerning the nature of Bangladeshi treatment of homosexuals and persons who support them from independent country information. It then states:

   “At the basis (sic) of the material given above the Tribunal was not satisfied with the truth of any of the applicant’s claims relating to the Hijra or of his resulting sentence of stoning. The Tribunal has also formed the view for reasons which follow in relation to the false charges claim, that the applicant is not a credible witness generally.”

   But it would seem that the applicant never really had a chance to explain anything to the Tribunal about what he understood about the Hijra because the interpreter required the Tribunal to repeat almost everything it put to the applicant and then did not make a reply.

9. Although the Tribunal makes a generalised finding as to the credibility of the applicant it does accept an important part of one of his claims. That was that he was shot and wounded. The applicant says that he was shot and wounded by religious fundamentalists and that the reason for this was his support of the Hijra. The Tribunal does not accept that the shooting was as a consequence of his support but this can only be because the Tribunal did not accept that the applicant did have the association he claimed with the group. But if the Tribunal came to that view as a result of the non responses to their questions and the non responses were due to the interpreter’s failure then it can be said either that the Tribunal took into account irrelevant material or more specifically that in the events that occurred the applicant was not granted a meaningful hearing.

10. I am satisfied that this is the case. I believe that this conclusion can be obtained from a reading of the transcript. I do not think it is necessary for the applicant to provide the evidence that was before the court in Appellant P/199. This is not a case of answers being misinterpreted; it is a case where there must be considerable doubt as to whether the questions ever got through to the applicant. I would also suggest that the Tribunal failed in its task to give the applicant a meaningful hearing by not giving him an opportunity to respond to questions before moving on.

11. A final and additional point was made by the applicant. At [CB 247] there is found an extract from an article in the Guardian newspaper dated 18 October 1999 which was used by the Tribunal in coming to its decision. The third paragraph of that article indicated that homosexuality in Bangladesh was a matter of concern to NGO’s because of fear of an expected backlash from religious fundamentalists. The article continues:

    “But what has caused consternation among different professional groups and social scientist is the arrest of a worker from Bandhu Social Welfare Society, a non-governmental organisation which is reported to have supplied condoms free to male sex workers. He has been accused of pandering to the “business”, this is an issue which exists in every society and we must not pretend that it doesn’t exist here and no amount of arrest or intimidation is going to solve the problem”, said Dr. Halida Hanum Khandker” (emphasis added)

12. The applicant says that this article in fact supports his view that persons who assist organisations associated with homosexuals are in danger of arrest. He complains that he was not provided with a copy of this article and that had he known about it he would have drawn it to the attention of the Tribunal and used it as corroboration of his claim to a well founded fear of persecution. Mr Jones claims that this situation falls within the kind of jurisdictional error that was found in the High Court decision of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. However that is a case where it was found that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant. There is no evidence that the applicant in this case was so misled. It has been established that the Migration Act imposes a duty on the Tribunal to inform applicants only about certain kinds of information that might be adverse to the claims of the applicant: Minister for Immigration; Ex parte Miah [2001] HCA 22. It appears that the article would in fact advance the claim of the applicant. There is also evidence that the Tribunal did take the article into consideration. In any case it is clear that the weight that the Tribunal gives to country information is a matter for the Tribunal itself, as part of its fact- finding function; NAHI vMinister for Immigration [2004] FCAFC 10, SZNAK v Minister for Immigration [2004] FCA 1478. It is open to the Tribunal to reject evidence before it and it is neither bound to give reasons for its rejection nor refer to the material it rejects; NAQS v Minister for Immigration [2003] FCA 1137. As Allsop J states in NAST v Minister for Immigration [2004] FCA 86 at [6]:

    “What is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.”

    I would not grant review on this ground.

13. I am satisfied that the jurisdictional error identified as a failure to provide the applicant with a meaningful hearing and thus causing a breach of s.425 should be acted upon. I will therefore make a declaration that the decision of the Tribunal dated 29 July 2003 is invalid and of no effect. I direct that the application be referred back to the Refugee Review Tribunal differently constituted to be heard and determined according to law. If required I will order the necessary constitutional writs. The respondent shall pay the applicant’s costs assessed in the sum of $4,250.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: