SZDDZ v Minister for Immigration
[2006] FMCA 1174
•9 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDDZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1174 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant – insufficient evidence of deficiencies in interpreting at Tribunal hearing – no evidence of impropriety by Tribunal in conducting hearing – whether a man aged 54 years can be described as old – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424A |
| SZDDZ v Minister for Immigration & Indigenous Affairs [2005] FMCA 67 referred to NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 followed SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 followed |
| Applicant: | SZDDZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3336 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 August 2006 |
| Date of last submission: | 9 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,500.00.
I allow eight (8) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3336 of 2005
| SZDDZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 5th October 2005 and handed down on 27th October 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of India. He arrived in Australia on 16th July 2003. He applied for a protection visa on 13th August that year but it was refused. He sought a review of that decision by the Refugee Review Tribunal, and the Tribunal affirmed the delegate's decision on 16th February 2004.
The Applicant sought a review of that decision from the Federal Magistrates Court. On 27th January 2005, the Court dismissed his application. The citation to that decision is SZDDZ v Minister for Immigration & Indigenous Affairs [2005] FMCA 67.
The Applicant appealed to the Full Federal Court. On 3rd September 2005, the Full Court, by consent, set aside the decision and remitted the matter to the Tribunal for reconsideration. The Tribunal differently constituted, invited the Applicant to attend a hearing, scheduled to take place on 5th October 2005.
On 7th September, which was the same date as the Tribunal invited the Applicant to a hearing, the Tribunal wrote to the Applicant, under the provisions of section 424A of the Migration Act. The letter said:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: a copy of your original statement and protection visa application to the department in August 2003; a copy of the written decision of the first Tribunal, dated 16 February 2004, summarising your evidence (including oral evidence to the Tribunal) and setting inconsistencies in your evidence.
This information is relevant because the inconsistencies set out and put to you may reasonably give rise to findings in relation to your credibility in general, and in relation to the particular matters, including whether or not you lived in Gujarat at the relevant times, or at all. You are invited to comment on this information. Your comments are to be in writing and in English and are to be received at the Tribunal by Friday 30 September 2005.
The Applicant responded to the hearing invitation, indicating that he did wish to attend the hearing. He stated that he needed a Tamil interpreter and he indicated that he would like another person to give evidence on his behalf at the hearing. The Applicant said of that other person:
He is my friend. He knows me since 1984. He will provide oral evidence to support my claim.
The Applicant did attend the hearing and gave evidence on 5th October 2005. He was accompanied by his agent, Mr Mollah. The Applicant's friend also gave evidence. That witness stated that he knew the Applicant because they came from the same town. The witness stated that, in about 1986 or 1987, the Applicant had had problems with his first wife and her family; for this reason, another marriage had been arranged. The witness could not provide any evidence about the situation or the Applicant's movements since that time, as he had himself been travelling and working abroad.
The Tribunal's consideration of the Applicant's claims and evidence is set out on pages 93 through to 99 of the Court Book. The Tribunal took into account evidence given at the hearing before the earlier Tribunal. The Tribunal noted that a letter had been forwarded to the Applicant, under the provisions of s.424 of the Migration Act. The Tribunal also noted that no reply had been received to that letter, either by the deadline of 30th September or at all. The Tribunal Member asked the Applicant about the matters in that letter and noted that the Applicant said that he did not want to say anything, except that he became confused if he was asked the same question again and again.
The Tribunal noted, through what it described as “a patient series of questions”, that a significantly different story emerged from that presented in the earlier statement and at the original hearing. The Applicant no longer claimed to have lived or worked in Gujarat, and made no claims at all in relation to BJP, Hindus or religious persecution.
The Tribunal noted that the Applicant stated at hearing that his ongoing problem was with his first wife. He gave certain details to the Tribunal about the demands made upon him by his first wife and his family. The witness who gave evidence provided some evidence that he was aware of the problems that the applicant had.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out in three paragraphs on page 91 of the Court Book. The Tribunal noted that the Applicant was not a very forthcoming or responsive witness, but the Tribunal is satisfied that his eventual responses at the hearing represented his actual circumstances and concerns. The Tribunal went on to find:
Nothing in the evidence presented to the Tribunal at hearing suggested that there was any issue or problem, other than that in connection with the Applicant's first wife, nor that there was any convention nexus to the Applicant's problems with his first wife, nor was there any suggestion of protection being sought and withheld for Convention reasons. With regard to the Applicant's specific circumstances and concerns, the Tribunal is satisfied that the harm which he fears on return relates purely to his personal circumstances and does not arise for any Convention reason.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee Convention, as amended by the Refugee Protocol.
The Tribunal affirmed the decision not to grant a protection visa.
Application for Judicial Review
The Applicant sought a review of these proceedings in this Court. He filed an application on 15th November 2005 and an Amended Application on 3rd April 2006. He seeks orders in the nature of certiorari and mandamus, to quash the decision of the RRT and compel it to consider his application according to law.
The Applicant sets out two grounds, first, that he did not have a fair hearing before the Tribunal, and, second, that the Tribunal made a jurisdictional error when it took advantage of the situation created by the interpreter, and the situation led him to put himself in “a scaring situation”. The particulars of the first ground, being the claim that he did not have a fair hearing, are set out as follows:
It can be evident, from the listening of the hearing tape before the Tribunal, that at the very beginning of the starting of the hearing the interpreter was so quick and very fast. It's make me confuse and sometimes I was in doubt what the interpreter was talking and sometimes I lost my attention to understand the interpreter. This inattentive situation did not help me to make out my case.
In respect of the second ground, that the Tribunal took advantage of the situation created by the interpreter, and the Applicant was put into “a scaring situation”, the Applicant provides these particulars:
The day of the hearing was a Ramadan day (Muslim fasting day) and the hearing was in the afternoon and I was very weak, because of my age, and I repeatedly informed Tribunal that I am fasting and I am upset, but that was not considered. It will be evident that in some time of the hearing, then I became scared from the asking style of the question, though I have fear of the persecution in Gujarat, India, being a Muslim.
The Applicant has not filed any written submissions but he has attended Court today and made oral submissions to the Court. I am mindful of the written submissions filed on behalf of the First Respondent Minister. The Applicant told the Court that he could not return to India because he had problems there. He said that he would have problems from his first wife. He was divorced from her and she says, and keeps saying, that he should not come back to her. He did not have a transcript of the hearing before the Tribunal.
It was put to me by Ms Clegg of counsel for the Respondent Minister that what the Applicant had told the Court was consistent with what he had told the Tribunal in the application under review. The Applicant was offered the opportunity to reply but had nothing further to add.
I turn to the grounds contained in the Applicant's Amended Application. It is put to me by counsel for the First Respondent, accurately, in my view, that, in essential terms, the Applicant is complaining about the same things in both grounds of review; that is, a defect in the hearing procedure caused by the interpreter and/or the conduct of the Tribunal.
The First Respondent concedes that improper conduct on the part of the Tribunal can lead to a denial of natural justice and jurisdictional error. Nevertheless, she submits there is no basis upon which the Applicant can make out that ground of review. There are three reasons given: first, that the allegations are not sufficient to establish jurisdictional error; secondly, there's no evidentiary basis for the allegations, and that the Applicant, who bears the evidentiary burden, has not established a factual basis - I am referred to the decision of NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [2].
It is also submitted that the record of the Tribunal decision suggests that the Tribunal's conduct was proper and appropriate. I am referred to page 98 of the Court Book, where the Tribunal refers to the Applicant saying that he did not want to say anything, except that he became confused if the same questions were asked again and again. At page 98 of the Court Book, the Tribunal refers to having asked the Applicant "a patient series of questions" during the course of the hearing, so that the Applicant's true circumstances came to light. It is submitted that the record of the reasons for the decision are at odds with the Applicant's allegations about the conduct of the Tribunal.
It appears to me that there is insufficient evidence upon which I can be satisfied of a jurisdictional error caused by the inappropriate or inadequate style of interpretation at the Tribunal hearing. The Applicant claims that the interpreter was quick and fast, and that that interpretation made him confused. He says that that could be evident from listening to the hearing tape but the tape was not produced, nor was a transcript of the hearing. Whether a transcript of the hearing would in fact have illustrated the claim made by the Applicant is perhaps conjectural. In my view, it is up to the Applicant to establish the facts that would support his claim.
That said, I do not place a great weight on the submission that the Tribunal's decision suggests that the Tribunal's conduct was proper and appropriate. Bearing in mind that the Tribunal is the author of the decision, it is hardly likely that the Tribunal would prepare a decision in such a way that it conceded that the Tribunal dealt with the Applicant in a way other than that which was appropriate. At the same time, there is just no evidence to show that the Applicant, as a result of the difficulties with interpreting, did become confused and was not able to answer the Tribunal's questions.
Turning to the second allegation, that:
the Tribunal then made a jurisdictional error when it took the advantage of the situation created by the interpreter and the situation that led me to put myself into a scaring situation.
It again appears to me that there is insufficient evidence to establish that ground of review, whether it is a jurisdictional error or not.
Insofar as it may be construed as meaning that the Tribunal Member deliberately took advantage of a problem with the interpreter, in conducting the hearing, it appears to me to be some sort of an allegation of a lack of good faith on behalf of the Tribunal Member. Such an allegation should not be made lightly, it should be strictly alleged and strictly proved. I refer to such decisions as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749.
There is no evidence to show that the Tribunal took advantage of a situation, in order to place the Applicant at a disadvantage. The Tribunal did report that the Applicant had claimed that being asked a lot of questions confuses him, but there is no record to indicate that the Applicant had informed the Tribunal that he was fasting and weak from lack of food.
The Applicant refers to being very weak because of his age, and told the Court that he was only 54 years of age. Of course, all such conceptions of age are relative. I do not regard 54 as at all old, and it would appear to me that "middle-aged" was the best, or the worst, that could be ascribed to such an age, although whether an 18-year-old person would reach the same conclusion is perhaps conjectural.
It is certainly not unknown that those followers of the Muslim faith can become faint or weak when they have been fasting during Ramadan. This is well-known and a matter of which the Court can take judicial notice, but there is no evidence that that was the case in respect of this Applicant. There is no evidence that he told the Tribunal that he was not able to continue, or that he felt unwell, and it would be surprising a Tribunal Member, having been informed by an applicant, feeling unwell and unable to continue, would have taken other than a sympathetic view. There is no transcript to show that the Tribunal member asked questions in an aggressive way, or a rude or improper way.
The Applicant is a polite, gentle man, who, by nature, appears not to be an assertive person, and may well have been overawed at attending a Tribunal hearing. He appeared nervous and ill at ease in Court today, but that is not a criticism of him. He is not legally represented and was conducting his own application, in a procedure which is a technical procedure in the law, in a language that is not his own, with the aid of an interpreter. It is not at all unusual for applicants to feel overawed or nervous in Court proceedings, no matter how hard the Court may try to reassure them.
I am not satisfied that the applicant has made out a ground of jurisdictional error in respect of the alleged behaviour by the Tribunal member. I acknowledge that the Applicant may well have felt nervous or scared. There was no evidence to show that this was caused by impropriety by the Tribunal or anyone else at the Tribunal hearing.
Counsel for the Respondent Minister has also considered whether any breach of s.424A of the Migration Act has taken place. She submits that there is not, because the Tribunal relied entirely on information given it to by the Applicant at the second hearing. As such, that information falls within the exception contained in sub-s.424A(3)(d). The Tribunal took the oral claims made by the Applicant at the second hearing at face value and just assessed the Applicant's altered claims for what they were, which revealed his actual circumstances having no Convention nexus. That submission appears to me, with respect, to be an accurate summary of the situation.
I am mindful of the fact that the Applicant is not legally represented in these proceedings. I have read through the decision myself, in order to ascertain whether or not the Applicant may have an arguable case in respect of the jurisdictional error, not being one that he has already brought to the attention of the Court. I am unable to discern any such error. It appears to me that no jurisdictional error has been made out.
In the absence of jurisdictional error, the decision is a privative clause decision, as defined by sub-s.474(2). Under sub-s.474(1), in respect of the privative clause, there is no basis for making orders in the nature of certiorari, prohibition or mandamus. It must follow that the application will be dismissed.
There is an application for costs. The Applicant has been wholly unsuccessful in his claim, and the Respondent Minister is making an entirely appropriate claim for costs.
The Applicant is impecunious. He does not have the means to pay an order for costs. I see no reason to disbelieve him, and I accept that a costs order, in any amount, would be most burdensome to him.
Unfortunately, lack of funds on the part of an unsuccessful party is not, of itself, a ground for the Court not to make a costs order. It is a matter to be taken into account as far as time to pay is concerned, and I propose to take that matter into account. This is an appropriate case for a costs order, and I am satisfied that the sum of $4,500.00, inclusive of counsel's fees, is, in the circumstances, an appropriate figure. I will, however, allow this Applicant eight months to pay.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 14 August 2006
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