SZDVN v Minister for Immigration
[2005] FMCA 560
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDVN v MINISTER FOR IMMIGRATION | [2005] FMCA 560 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 424A, 424A(3), 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZDVN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1837 of 2004 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 21 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of a Nepali interpreter.
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1837 of 2004
| SZDVN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2004 and handed down on 25 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 4 November 2003 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDVN”.
The applicant, who claims to be a citizen of Nepal and formerly a resident of Nepal, arrived in Australia on 24 September 2003. On
20 October 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-25) (“CB”). On 4 November 2003 the delegate refused to grant a protection visa (CB pp.26-38) and on 24 November 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.39-42).
The applicant stated he was born in July 1974 in Khaliban, Palpa District, Nepal. He stated he belonged to and was an active member of the Nepal Communist Party. The applicant claimed the Maoists were opponents to the Nepal Communist Party and he came to Australia to save his life from the Maoists. He stated he would be killed by Maoists should he return to Nepal (CB pp, 15, 18-19). The applicant claimed the Maoists consider the members of the Nepal Communist Party as their enemies. He also believed that the authorities could not protect him because the Government itself was not in a safe position (CB p.112).
The Tribunal’s findings and reasons
Mr McInerney of Counsel, appearing for the respondent, prepared a summary of the Tribunal’s findings which I have adopted as follows:
a)The Tribunal rejected the applicant’s claims on a credibility basis and found that the applicant had fabricated his claims about his having been arrested by the police and then fleeing to India to escape detention (CB p.123).
b)The Tribunal was satisfied that a number of the documents upon which the applicant had relied, and which had been the subject of the s.424A letter, had been concocted by the applicant (CB pp.123-124).
c)The Tribunal also found:
i)the applicant’s claim that Maoists burnt his shop, leaving behind Maoist propaganda which led to him being arrested, was far fetched (CB p.124);
ii)it accepted that the shop, which had allegedly been burnt, was owned by the applicant’s mother as the applicant alleged, but was not satisfied that any of the applicant’s other claims concerning being arrested by the police were based on fact (CB p.125);
iii)there was no basis to find that the applicant was thought to be pro-Maoist and arrested by the police, even if it was accepted that the applicant’s mother’s shop had been burnt down and robbed (CB p.125);
iv)the applicant would be able to obtain protection from the police from theft were he to return to Nepal and once again set up a shop (CB p.125);
v)it rejected the applicant’s claim that pamphlets were left by those responsible for burning the shop, or that the Maoist were coming to the shop to beat him and demand money (CB p.125);
vi)the applicant did not have a well-founded fear of persecution by the Maoists because he owned a shop (CB p.126);
vii)it was not satisfied that there was a real chance of the applicant facing harassment or theft by the Maoists (CB p.126);
viii)in any event, if the applicant were to be harassed he would have had access to State protection (CB p.126);
ix)it was not satisfied that the applicant had suffered at the hands of the Police or had had imputed to him a pro-Maoist political view such that the Police were seeking him (CB p.127);
x)it was not satisfied that there was a real chance that the applicant faced any harm or further theft by the Maoists and, in any event, if the applicant were to be harassed or the subject of a theft then he would have access to State protection (CB p.127); and
xi)it was not satisfied that the applicant had a well-founded fear of persecution upon his return to Nepal (CB p.127).
d)The applicant could not give a plausible account of his time after he had fled to India (CB p.126). His claims had changed over time (CB p.126). His evidence was vague, and contained numerous inconsistencies (CB p.126). Having rejected the factual basis for the claims made by the applicant, the Tribunal was obliged to affirm the decision of the delegate not to grant to the applicant a protection visa.
Application for review of the Tribunal’s decision
On 16 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 9 November 2004 the applicant filed an amended application which contained the following grounds:
“(I)The Tribunal fail to consider the genuineness of my documents & conclude its decision connecting my documents with some other forgery groups whose blank documents & stamps were seized by custom & immigration officers. If it had any doubt about my documents it should contact issuing office before it reach its conclusion.
(II)The Tribunal fail to consider the evidence that non aligned young man & women are subject to persecution by both Maoist group & Security forces in Nepal. They are constituted as a particular social group.
(III)The Tribunal accessed independent country information after the hearing with out giving me a chance to comment on that material. The materials were downloaded day after the hearing which proved that the failure of the RRT inform that the RRT intended to rely on those materials, amount jurisdictional error.
(IV)The RRT reached a finding regarding the burning down of my shop not supported by evidence but it claim robbery was a motivation of behind the assault in my property. Neither the News Paper nor I mentioned that robbery was the reason for assault on the property. So RRT made unsupported findings.
(V)The RRT fail its fundamental duty of procedural fairness in relation of the second interpreter, the Tribunal dismissed that complain and stated it was satisfied with that hearing. I think Tribunal had no way of knowing whether or not the interpreter was satisfactory unless it asked the question at the start of the second hearing.” (Errors in original)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
The applicant appeared self represented with the aid of a Nepali interpreter. He attended a directions hearing on 22 September 2004 and consented to Short Minutes of Order requiring him to file and serve an amended application giving complete particulars of each ground of review to be relied upon and any supporting evidence by
11 November 2004. The applicant was also required to file and serve legal submissions fourteen working days prior to the final hearing. The applicant at that time indicated he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and was subsequently allocated a legal adviser. The applicant attended a conference with the adviser and received written advice on 26 October 2004. He complied with the requirement to file an amended application which was filed on
9 November 2004 but no written submissions were filed prior to the hearing.
Initially when the applicant was invited to make oral submissions to the Court in support of his application he did so via the interpreter but the submissions were limited to a recounting of the circumstances leading to the applicant arriving in Australia together with a number of references to issues raised by the Tribunal at its hearing and in its decision. After the submissions by the respondent, the applicant was given the opportunity to respond which he did by denying a number of the statements made by the respondent with particular reference to the issue of forged documents and the Department’s investigation into the possession of stamps that had been used in the production of forged documents. After those submissions, I raised a number of issues with the applicant which related to his pleaded grounds which I will address in more detail in the Reasons section of this judgment.
Respondent’s submissions
Mr A McInerney of Counsel, appearing for the respondent, filed written submissions prior to the hearing. Counsel advised the Court that he would rely on his submissions and indicated to the Court that the significant issue leading to the Tribunal’s decision was the question of the applicant’s credibility. The Tribunal handled this topic in three distinct areas namely, the false documentation, the shop fire and inconsistencies in the applicant’s claim.
In respect of the first issue of forged documents, the respondent Counsel took the Court to the relevant material contained in the Court Book which set out the circumstances as to how the issue arose.
a)On 11 February 2004, the Tribunal conducted a review of the applicant’s claims (CB p.64).
b)On 16 March 2004, the Tribunal received a submission from the applicant which contained a number of documents (CB pp.117-118).
c)On 6 April 2004, the Tribunal wrote to the applicant pursuant to s.424A of the Act and requested his comments in respect to information that the Tribunal had received from the Department which indicated that the applicant was present when officers from the Fraud Analysis Unit attended an address in Ninth Avenue, Campsie on 5 December 2003 to investigate an allegation of fraudulent documents involving a Nepalese protection visa applicant.
d)The Tribunal was concerned that the presence of certain stamps placed on the translations, upon which the applicant relied, suggested that the documents had been fabricated to strengthen the applicant’s claims for a protection visa. Similar stamps to that used were found in the package sent to the other Nepalese protection visa applicant. That information suggested to the Tribunal that the applicant may have submitted documents which had been manufactured – which would cast serious doubts on the credibility of the applicant’s evidence to the Tribunal (CB pp.45-48, 65-66).
e)On 21 April 2004, the applicant attended an interview with the Tribunal, in accordance with s.424A of the Act (CB p.119).
f)On 27 April 2004, the applicant forwarded another letter to the Tribunal which contained a video of a Dateline program about Nepal (CB p.122).
It was submitted that this material resulted in the Tribunal’s finding:
“The Tribunal is of the view that the document, a translation of a letter to the police of January 19 2004 which includes a stamp of the Department of Law Justice and Parliamentary affairs, a stamp of the Majestry [sic] of Foreign Affairs, and the Shree Law Book Management board has been generated for the purposes of the review.” (CB p.123)
It was submitted that the Tribunal made a distinct finding on a credibility basis. It was further submitted that the Tribunal undertook the task it was to perform, addressed the claims made by the applicant and carried out the task according to law. There was no substance to any of the claims made in the applicant’s amended application which sought to impinge the Tribunal’s decision. No jurisdictional error was disclosed in the reasons of the Tribunal or the procedures followed by it.
Reasons
The Tribunal rejected the applicant’s claims on a credibility basis. The Tribunal based its decision on a number of issues all of which indicated the applicant was not a good witness. An adverse finding as to credit is a finding of fact par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham. Each of the issues was clearly canvassed in the Tribunal’s decision under the heading of “Claims and Evidence” and the reason for the rejection of each issue was set out in the “Findings and Reasons”.
Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The applicant had pleaded five grounds in his amended application which have been produced in paragraph 6 above. There was no attempt by the applicant in his oral submissions to raise any arguments in respect of the pleaded grounds and he had not filed any written submissions prior to the hearing.
Although the issue arose in a different context, the substance of ground 5 became an issue during the hearing. The concern was whether the interpreter was accurately relaying to the Court the information that the applicant was attempting to convey. This was a curious statement to be made by the applicant because although he had a limited amount of English and he attempted to address the Court on several occasions in English, he was not able to clearly explain the troubles that he was having with the interpreter service. On a number of occasions the interpreter assisted in the exchanges between the applicant and myself. The applicant had indicated that the interpreter at the second Tribunal hearing, was the same interpreter assisting at the current hearing and was not accurately translating the statements made by the applicant. The applicant indicated he had written to the Tribunal complaining of this issue. With the assistance of the respondent’s Counsel a letter addressing this issue was determined to be one written by the applicant to the Registrar of the Tribunal undated and received by the Tribunal on 27 April 2004 (CB p.68). That letter contained the following statement:
“Also I would like to inform the tribunal that the interpreter on my second hearing was no[t] good enough that he could not translate properly. He didn’t explain all the things I explain to him.”
This complaint was re-activated during the hearing when I was questioning the applicant regarding the issues raised in ground 3 of his pleadings, the subject of which I will return to. During this exchange between the applicant and myself in an endeavour to establish the issues he was attempting to convey to me but believed were failing because of the interpreter service, the applicant suggested that he had a friend seated in the back of the Court who could assist. The friend was a fellow Nepali who was competent in English and could be clearly understood. The majority of the assistance provided by the friend related to ground 3 of the pleadings. However, I took the opportunity to ask the friend to enquire of the applicant the areas the applicant believed that the translation service was failing him. The invitation was extended to raise any of the issues that had been previously canvassed in the Court that the applicant wished to resubmit for my consideration. The result of this enquiry was that there was nothing that the applicant wished to re-visit.
As a consequence of this exchange I am doubtful of the veracity of the claim that there was any defect in the interpreter service. The interpreter, who is fully accredited, has appeared in this Court on a number of occasions and interprets in a competent and effective manner. I am not convinced that the complaint raised in the fifth ground can be sustained. I acknowledge that I have not had the benefit of an independent interpreter’s review of the Tribunal hearing tapes to indicate whether the interpreter at the hearing competently and effectively performed the interpreter role. However I am satisfied that the interpreter service was not an impediment to the proceedings before me. Further, the introduction of the friend to assist in the interpreting after this complaint was raised provided me with an opportunity to test whether the essential issues were being conveyed between myself and the applicant and that the applicant’s responses were being accurately conveyed to me. This was established before I raised the question as to whether any issues, the subject of the applicant’s complaint, were to be re-ventilated using this alternative resource. This was met with a negative response.
The issue that crystallised the problem of interpretation arose when I questioned the applicant about the issues being raised in ground 3 of his amended application. The issue related to a matter that was outside the second Tribunal hearing and led to the complaint that the Tribunal had accessed independent country material after the Tribunal hearing, that material being used by the Tribunal in its decision making process without providing the applicant an opportunity to comment on the material, and that action amounted to a jurisdictional error. It was established that the material that was accessed by the Tribunal was in relation to the structure of the Nepali calendar (Bikram Sambat) and a comparative table with the Julian calendar (CB p.129).
Having considered the content of the Tribunal’s decision, the content of the independent country information (Nepali-Julian calendar comparison) and the provisions of s.424A(3) of the Act, I requested the applicant to indicate in what respect this calendar information had been used in the Tribunal’s decision to the applicant’s detriment.
I acknowledge that there were a number of issues that arose in respect to whether a particular event had occurred before or after another which was relevant in assessing the applicant’s claim as to the sequence of events. In each case the relative dates and sequences were established in a method of “dead reckoning” as opposed to comparisons of various dates which were compared to determine their position on the timeline. As the difference in numeric date between the Nepali and Julian calendars is approximately 60 years and the placement of various festivals is determined using a lunar calendar, this further and separate issue, the issue of comparative dates, is not an issue in the Tribunal’s reasoning.
This process of endeavouring to establish details leading to the claim contained in ground 3 was quite laborious. However, it did establish that the claim that the interpreter service was failing was discounted and the final answer to the question in respect of ground 3 was that it was not an issue.
In respect of ground 1, I note the Tribunal’s finding on the evidence exposed by the Fraud Analysis Unit and agree that no further examination is warranted.
In respect of ground 2, where the applicant was endeavouring to establish that he was a member of a particular social group for the purposes of a Convention definition, this did not assist the applicant to generate an argument to his benefit. In his own evidence he stated he became of interest to the Maoist rebels because they were aware that he had spent some time in the United Arab Emirates and as a consequence of that period of service would be in possession of money to an extent greater than most of his fellow citizens. There was no attempt by the applicant to suggest he belonged to a particular social group because he had worked in the United Arab Emirates and would be wealthier than other citizens. The argument was developed that he was a young non aligned man and that would be the reason for the Maoists’ persecution. That ground cannot be sustained.
The remaining ground is ground 4, which raised the issue as to the reasons for the shop being burnt down. The applicant stated in his pleadings that neither he nor the newspaper mentioned robbery as a reason for the assault on the property and this led to an unsupported finding of the Tribunal. The newspaper did raise the issue that there was a substantial amount of cash missing from the premises and it records the fact that three lacks rupees (300,000 rupees – equivalent to $A6,000) was stolen and other things were destroyed. This ground cannot be sustained.
Conclusion
As the grounds in the amended application cannot be sustained for the reasons set out above, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 29 April 2005
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