SZEDL v Minister for Immigration
[2005] FMCA 996
•8 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEDL v MINISTER FOR IMMIGRATION | [2005] FMCA 996 |
| MIGRATION – Refugee – persecution on the Convention basis of disability and social group – notice of Objection to Competency – failure to consider certain independent country information – failure to provide the applicant with certain information – failure to provide the applicant with an opportunity to comment on adverse findings – interpretation – negative inferences – no reviewable error – privative clause decision – Objection to Competency upheld. |
| Migration Act 1958, ss.477, 477(1A), 474, 477(2), 36(2), 430(1)(d), 424A(1), 424A(3)(a) |
| Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21 Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC v Refugee Review Tribunal [2005] FCAFC 92 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 |
| Applicant: | SZEDL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2477 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 February 2005 |
| Date of Last Submission: | 1 November 2004 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. J. Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $4500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2477 of 2004
| SZEDL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 6 August 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 July 2003 and handed down on 27 August 2003 which affirmed the decision of a delegate of the respondent Minister made on 15 November 2001 to refuse a protection visa to the applicant.
The applicant is a citizen of Macedonia and claimed to fear persecution in that country because of a disability, namely, a hearing impairment, and that he is a military reservist, and that no account was taken of his hearing impairment in being called up for military service. Further, that he feared harm from Macedonian nationalists in his home town because of his good relations with Albanians.
The applicant put forward a long list of statements and complaints in his originating application to the Court. These were clarified in an amended application filed on 1 November 2004 where the applicant raises four grounds, that:
(1)The Tribunal ignored independent country information submitted by the applicant as part of attachments to a submission to the Tribunal received by the Tribunal on 13 May 2003.
(2)The Tribunal did not give the applicant an opportunity to comment about employment discrimination;
(3)The Tribunal did not give the applicant an opportunity to comment about certain contradictory evidence and did not take into account issues raised by the applicant after the hearing with the Tribunal regarding certain errors in the process of interpreting at the hearing.
(4)The Tribunal drew negative inferences about the applicant's credibility based on the applicant's failure to include certain information in his application for review to the Tribunal dated 14 December 2001.
I also have before me an affidavit filed by the applicant on 1 November 2004 in support of his amended application. The affidavit seeks to explain a number of matters, and relevantly annexes a transcript of the hearing before the Tribunal which in the circumstances appears to be the hearing of 18 June 2003. The applicant also sought in the affidavit an extension of time to enable his application to the Court to be heard. The respondent filed a Notice of Objection to Competency on 19 August 2004 objecting to the jurisdiction of this Court to try this matter on that basis that s.477(1A) of the Migration Act provides that applications for review to this Court must be made within 28 days of notification of the Tribunal decision. The Tribunal decision, which is the subject of review, was made on 30 July 2003 and handed down on 27 August 2003, and the application to this Court was made on
6 August 2004, nearly a year later.
The case of Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21, a Full Federal Court decision of 4 November 2004, upheld the judgment of Nicholson J who, at first instance, held that an appeal against a privative clause decision lodged outside the time limits in s.477 of the Migration Act is incompetent if a ground of review cannot be made out (with reference to the High Court's judgment in Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2). If the Tribunal's decision in the case before me is a privative clause decision pursuant to s.474 of the Act, then the time limit under s.477(1A) would apply. Also, relevant to the applicant's request for an extension of time following s.477(2) of the Act, the Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit.
On the issue of whether or not the respondent's Notice of Objection to Competency should be upheld, I am required to determine whether the decision complained of is a privative clause decision. This requires an examination of the substantive application before this Court and any substantive issues raised in the proceedings to determine whether the Tribunal's decision is affected by jurisdictional error. For the applicant's benefit I note that this has the effect of enabling the consideration of the applicant’s claims before this Court, which is clearly what he was seeking to achieve through the request for leave to file his application out of time.
The applicant appeared before me unrepresented and was assisted by an interpreter in the Macedonian language. I note the applicant requested, and was referred to a lawyer on the panel of the Court’s Legal Advice Scheme. The applicant confirmed at the hearing before me that his amended application had been drafted with the assistance of this lawyer.
The Tribunal's decision record is at CB 147 to CB 164. In its “Findings and Reasons” the Tribunal:
(1)Accepted that the applicant had a serious hearing disability. (CB 159.8)
(2)Accepted that that he had difficulties obtaining medical care that he required, but noted that the problem was essentially financial. (CB 159.9)
(3)Did not accept that there had been discrimination against him because of his disability, and gave reasons for this. (CB 160.2)
(4)Accepted that some of the refusals of employment were due to his hearing problem, but did not accept the claim that there was evidence of systematic discrimination against him by the government of Macedonia. (CB 160.6)
(5)Accepted that the applicant had done military service and was now a reservist and that he had been called up during the Albanian insurrection in 2001. However, the Tribunal noted that there was nothing in the evidence before the Tribunal that would suggest that the law relating to military service in Macedonia would be applied to the applicant in a discriminatory fashion (CB 161.4), and that there was nothing in the evidence before the Tribunal to indicate that the applicant’s hearing deficiency would not be taken into serious account in any future military call ups. (CB 161.8)
(6)Accepted that he was part owner of a shop that had been damaged by rioting Macedonians in 2001 (CB 162.7) but did not accept that this was caused by rioters as the retribution for his and his family's friendly relations with local Albanians. (CB 163.2)
(7)The Tribunal concluded that the applicant did not have a subjective fear of suffering harm in the future at the hands of ethnic Macedonians in his home town, found that he had not suffered persecution in the past because of his handicap and that there was nothing in the evidence before the Tribunal to suggest that he would suffer persecution for this reason in the future. (CB 163.6)
(8)For those reasons the Tribunal concluded that the applicant was not a person who had a well founded fear of persecution and therefore it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. It was not satisfied that the applicant met the criterion set out in s.36(2) of the Migration Act for a protection visa.
In his first ground of complaint to the Court, the applicant asserts that the Tribunal failed to take into account certain independent country information supplied by him and says that this information is an extract translation from a newspaper article, a copy of which is at CB 105, and which relates to riots in Bitola (the applicant’s home town), and damage in particular to “one shop that is owned by a Macedonian.” The applicant asserts that the basis for this complaint can be seen in the Tribunal’s decision beginning at CB 162.8 to CB 168 where there is reference to the “Balkan Report” dated 5 June 2001 (see CB 187 for a copy of the report). At CB 163 the Tribunal states that this report goes into considerable detail about the circumstances surrounding rioting by Macedonians against Albanians in May 2001. The Tribunal accepted this report and said that:
“However, it makes no reference to any action being taken by the rioters or their sympathisers against ethnic Macedonian owners of the damaged property or any other ethnic Macedonians in the town for any reason.”
The Tribunal goes on to say that the applicant submitted photos of a burned garage and an official report relating to the burning (CB 162.9). All of this related to the applicant's claims concerning harm because of his alleged perceived pro-Albanian position. The Tribunal went on to make a finding based on the documentation submitted by the applicant that the garage was damaged by fire. The Tribunal then went on to say:
“However, on the basis of the reported cited above, I do not accept that this was caused by rioters as retribution for his and his family's friendly relations with local Albanians.” (CB 163.2)
The applicant's stated complaint is that the Tribunal ignored the independent country information that he had put forward in support of his claims. In particular, that the Tribunal had ignored the extract of the newspaper article (CB 105) which reported on the destruction of property in Bitola, and specifically to the reference in that newspaper article to “one shop that is owned by a Macedonian”, having been destroyed. The extract reproduced at CB 105 was an attachment to a submission made by the applicant to the Tribunal and handed to the Tribunal on 13 May 2003 at the first hearing before the Tribunal. The submission and attachments are reproduced at CB 54 to CB 114. There are a number of different elements involved in this claim, which encompasses the applicant fearing harm from ethnic Macedonian nationalists in his hometown of Bitola because he was known to have been friendly with local Albanians, to have been the owner of a shop that was damaged, and the owner of a garage that was damaged by rioting Macedonians in Bitola in 2001. Clearly, the Tribunal's decision record makes no specific mention of the extract translation from the newspaper article supplied to the Tribunal by the applicant. But:
1)It should be noted, that while there is no specific mention of the newspaper article extract in the Tribunal’s decision record, the Tribunal makes a reference to the submission and attachments as being various documents relating to, amongst other things, the leasing of the shop, the damage to it, and fire at his garage and photocopies of three photos of a burnt out garage. At CB 152 to CB 153 under the heading of “Further Evidence” the Tribunal records the applicant’s claims flowing from his submission and various attachments. At CB 153.8 it makes specific reference to:
“Attached to the submission are various documents relating to his medical treatment, search for employment, the leasing of his shop and the damage to it and fire at his garage, corruption among senior public officials in Macedonia, and a newspaper article about prosecution of a man for not serving in the army. Also attached are photocopies of three photos of a burned-out garage.”
There is no obligation on a Tribunal to list in its decision record, in detail, each and every item of evidence put forward by an applicant. Its statutory obligation in this regard, as set out in s.430(1)(d) of the Act is to “refer to the evidence or any other material on which the findings of fact were based.” This is precisely what the Tribunal has done in the case before me. It recorded the “further evidence” of the applicant, it made specific reference to the “submission… with several attachments”, and then noted amongst the subject matter of these “various documents”: “his shop and the damage to it”. In these circumstances the Tribunal clearly recorded the subject matter of what the applicant had put before it.
2)The transcript (T) of the hearing before the Tribunal, submitted by the applicant, shows:
· At T3.9 the Tribunal asks the applicant about the “further documents” that he has submitted.
· At T4.5 the Tribunal said to the applicant that amongst other things he had read the applicant’s submission to the Tribunal.
· At T10 to T11 the Tribunal questioned the applicant about his shop which was rented to a “Muslim” and was damaged in riots in 2001 and then questions the applicant about the burning of his garage and the photographs he submitted in support of this claim. The applicant agreed at T 11.5 that the damage to the shop and the burning of the garage occurred some “short time apart”.
· At T25.5 in the context of questioning the applicant about his submissions the Tribunal confirms with the applicant that the submissions refer to his life being in danger if he were to return to Bitola because of his friendly relations with Albanians.
3)The relevant subject matter of the newspaper article extract at CB 105 is the destruction of "one shop that is owned by a Macedonian." In this regard, and in any event, the Tribunal made a finding beneficial to the applicant where, at CB 162.6, it said:
“I accept that he was part owner of a shop and that it was damaged by rioting Macedonians after the killing of Macedonian policemen."
Other than the degree of ownership, which is not of significance in the circumstances, this is exactly what the newspaper article asserted.
4)The applicant’s complaint could also be seen to be a misunderstanding of what the Tribunal has done and said. The applicant’s complain that the Tribunal ignored his evidence when it said that the “Balkan Report” makes no reference to any action by rioters against ethnic Macedonians is in the circumstances misconceived. There is no reference to any such action against ethnic Macedonians in the “Balkan Report”. By noting this the Tribunal cannot in all the circumstances, be said to have ignored the applicant’s evidence, it was merely stating what was in the report.
5)In relation to the garage the Tribunal, at CB 163.1, accepted that the garage was owned by the applicant but on the basis of the “Balkan Report” which it accepted, did not accept that this damage was caused by rioters as retribution for the applicant’s friendly relations with local Albanians. The Tribunal clearly distinguished between the damage to the shop as being caused by rioting Macedonians, and damage to the garage on the basis that the “Balkan Report” stated that some of the property which was damaged was not owned by, but was managed by local Albanians. The applicant’s shop was rented to “a Muslim” (in this context an Albanian).
Mr. Smith for the respondent submitted that the Tribunal is entitled to rely upon whatever evidence it considers it should give the greatest weight to, and is not required by s.430(1) of the Act to set out all of the evidence in respect of any particular aspect of the applicant's claims. The question of weight is a matter of fact and one for the Tribunal. This is unexceptional. In any event in the case before me the Tribunal has clearly referred to the “Balkan Report” set out in full in the Court Book, relied in part on that information while accepting some of the applicant’s claims, and found relevantly that:
(1)The applicant was part owner of a shop that was damaged by rioting Macedonians. This is of course one important element of the applicants claim flowing from the newspaper article submitted, and one that the Tribunal says it accepted. (CB 162.7)
(2)The Tribunal also accepted that the applicant was the owner of a garage that was the subject of photos submitted by the applicant, and an official report confirming the blaze that led to its destruction. (CB 163.1)
(3)In relation to the damage to the shop the Tribunal also accepted that it was damaged as the result of rioting Macedonians in Bitola in May 2001 (CB 162.7). I should note that the reference to “May 2001” contradicts the newspaper article, which claims the rioting and destruction occurred in “February 2001” after the murder of four policemen from Bitola. The Tribunal’s reference to: “though not in February but in May 2001”, at CB 162 .8, can be seen as a reference to the subject matter and date as put in the newspaper article put forward by the applicant which referred to the events in Bitola as having occurred in February 2001. Ultimately, the Tribunal preferred the “Balkan Report” and gives as the reason that the report goes into very considerable detail about the circumstances of the rioting and its aftermath.
The Tribunal clearly dealt with the two issues in the newspaper article. That is, that there was rioting in Bitola following the killing of Macedonian policemen and that damage was caused to property. It accepted in relation to the shop owned by the applicant, a matter not specifically mentioned in the newspaper article, that the shop did belong to the applicant. Further, while there was no specific mention of the newspaper article, it is clear that the Tribunal did take into account the matters asserted in the documents submitted by the applicant. It is not an error for the Tribunal to fail to specifically enumerate each and every document submitted by the applicant. Its obligation is to deal with all of the applicant’s claims, relevant evidence or circumstances that may arise from the applicant's claims, and to deal with the substance of the evidence put forward by the applicant. The applicant has not been able to establish that the Tribunal ignored the independent country information that he put forward. Nor can I see any error in the Tribunal relying on matters asserted in the other relevant piece of information before it, that is, the matters set out in the “Balkan Report”. It was open to the Tribunal to give weight to these matters and the Tribunal gives its reasons for doing so. The critical part of the “Balkan Report” on which the Tribunal relied, was that it made no reference to the action taken by rioters (action that the Tribunal accepted did occur) that it was aimed specifically by Macedonians against other ethnic Macedonian owners of damaged property (or other ethnic Macedonians in the town for any reason). It is important to note that the newspaper article while being generally about the destruction of property in the ownership of “Albanians and Muslims”, (which the applicant complains that the Tribunal ignored) makes no reference to the damage that was caused to the one shop that is owned by a “Macedonian” as being as a result of retribution against this Macedonian, or any other Macedonian, on the basis that this Macedonian was seen as a sympathiser of their opponents. In fact, the newspaper article stresses that the people of Macedonian nationality who destroyed the 50 shops were targeting shops that were owned by “Albanians, Muslims and Macedonian Muslims”. The destruction of the shop owned by a Macedonian and a Croatian is presented as something ancillary to that main purpose. The applicant’s complaint in this regard is not made out.
In relation to this ground the applicant also seeks to rely on s.424A(1) of the Act, and says that the Tribunal failed to give him relevant country information that is specifically about him. In the context of the applicant’s complaint this could be seen as a reference to the failure of the Tribunal to give him a copy of the “Balkan Report”. Section 424A(1) provides that the Tribunal must give to the applicant particulars of information that would be the reason, or part of the reason, for affirming the decision under review. While there has been some divergent authority in relation to s.424A(3)(a) of the Act, the preferred view following Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC v Refugee Review Tribunal [2005] FCAFC 92 is that adverse country information would fall within the exception set out in s.424A(3)(a), if it is not specifically about the applicant and its relevance to the Tribunal's decision is that it concerns a class of persons of which the applicant is a member. The country information referred to by the Tribunal (see CB 157 to CB 159) is not specifically about the applicant and there is nothing before me to show that s.424A can assist the applicant in this regard.
The applicant’s second ground is that the Tribunal did not give the applicant an opportunity to comment on the issue of employment discrimination as it related to his claims. The applicant claims that the Tribunal expressed an intention specifically to do so, as seen at T5 of the transcript of the hearing. The relevant part probably begins at T4.8 and continues to T5.5:
“TM: Now, in summary you state you were not able to obtain satisfactory medical attention in Mac. & that you were not able to able [sic] to obtain any jobs for which you applied on the grounds of your hearing problem
IN: In your submission you state that in Mac you are not able to obtain satisfactory medical service in relation to your health problems and on the other hand also you say that you are not able to find work that will be suitable taking into account your health impairment.
A: I would also like to explain in detail in regards to this matter.
IN: I would also like to clarify somethings…
TM: Just a minute…
IN: Just a minute
A: I didn’t look for work…
TM: Just a minute I want to finish my point
TM: However, I know that from your last submission that you did receive some assistance from the government and that also you were able to pay your medical costs, some of your medical costs yourself
IN: In your submissions, however you state that you were able to pay some of the medical costs yourself and some of the medical costs were paid by the authorities
A: Yes
TM: Also you did eventually find a job
IN: However at the end you succeeded in finding a job
A: Yes
TM: My view & I will ask you your comments on this my view at this stage is that your situation in regard to your hearing disability & your work situation do not amount to persecution
IN: However my view now, now reading this that your medical impairment and finding, and the inability to find, you not to be able to find work do not represent basis for persecution, you to be persecuted.”
Clearly in the context of what is being discussed in the context of the transcript at the hearing before the Tribunal, there is a reference to the applicant’s hearing disability, and the difficulty that resulted in him not being able to find work. The Tribunal understands the applicant’s claim of the link between the hearing disability and his work situation, but goes on to explain to the applicant that even if it were the case, it is not a problem that the applicant has suffered for one of the five refugee Convention reasons.
It is clear from a reading of this part of the transcript that the applicant indicated that he wished to comment on this issue. The transcript continues on the issues of the hearing disability and its connection to his work difficulties. At T6.1:
“TM: At this stage I don’t have the impression that the harm that you have suffered, the problems that you have suffered in respect of your hearing disability and your work were because of any of those reasons. [Convention reasons].
IN: However, also I state that the thing that you experienced in relation to your hearing impairment, that your have this impairment & the problems that you experienced in relation to finding work are not in one of these 5 groups, that experience you have lived.
MT: Now I am prepared, I will think about this again, but I’m just telling you how I feel at this stage.
IN: I will look into this again, however, I am telling you about my opinion, that is what I am thinking at this moment.
A: Yes.
TM: Would you like to comment?
IN: Would you like to say something?
A: I would like to comment in regard to work, finding…
IN: I would like to give you my comment.”
The transcript continues on this topic to T6.8 where:
“TM: Sorry, Mr [applicant], let me just interrupt you for a second.
IN: Let me interrupt you for a second Mr [applicant].
A: Yes.
TM: You have provided a detailed history of your hearing problems and your attempts and what you did about them, there is no need for you to go over that again, its on the file, I have read it & I’ll read it again.
IN: There is no need for you to explain again about your medical problems, you have put that in your application, I have read them & I’ll read them again, there is no need for you to explain that to me again
A: OK.
IN: OK.”
A plain reading of the transcript shows that the applicant then continues for some pages, until T10, to discuss his employment difficulties and his hearing impairment. At T10.5 the Tribunal says that it will return to the issue at “the end”. The Tribunal does return to the topic at T28.3:
“TM: Now finally I want to go back & explain again the definition of persecution to you
IN: finally I want to explain again the definition of persecution to you
TM: And this applies to the problems you had regarding your disability & regarding your searching for a job
IN: And these are in relation with your, your impairment & regarding the search for a job
TM: in order to constitute persecution under the convention
IN: under the convention to constitute persecution
TM: The harm that you’ve experienced must be directed at you for 1 of the 5 reasons which I mentioned earlier
IN: That experience that you have lived through in that process has to be because 1 of the 5 reasons which I mentioned at the beginning
IN: Yes”
This discussion continues with the making of further comments on this issue until near the end of the hearing at T31.3. It is clear that this was an issue of great importance to the applicant. But any plain reading of the transcript of the hearing shows that, the applicant was given ample opportunity to comment. In particular:
1)The applicant had submitted a large amount of written material, as is his right. It is clear however, that this desire to comment was in part a desire to repeat what was in that written material. It is quite understandable that the Tribunal in the circumstances sought to reassure the applicant that it would look at his written material again.
2)The applicant’s reference to “page 5” of the transcript to support his claim that he was not given an opportunity to discuss the issue of discrimination and employment is not made out. The Tribunal had lengthy discussions on this issue, and when it said that it would refer to this topic “at the end” it did. The applicant had ample opportunity to put his case. The Tribunal was entitled to focus the applicant on supporting his claims, not going over his written material.
3)It is also clear that the Tribunal also put some of its thought processes to the applicant for comment, in that it put to the applicant that even if the discrimination could be made out, it was not for one of the five Convention reasons.
The other element to this ground is that the applicant claims he should have been given more time by the Tribunal to comment on this issue at the hearing before it. The applicant claims that the hearing started at 11.08 am and ended at 12.40 pm and implies that this was not enough time to put his case. The issue therefore is whether the applicant has had a reasonable opportunity to present his claims in relation to the issue of employment and discrimination because of his disability. First, I note that the applicant made a lengthy written submission to the Tribunal which was before the Tribunal at the time of the hearing. Particularly, the matters at CB 61 to CB 66.2 focus on the issue of employment and discrimination. Further, the attachments to the submission have a section headed "Search for Employment," (see CB 76 to CB 100). Second, there is nothing in the transcript of the hearing provided by the applicant to show that the applicant was denied the opportunity, nor is there any indication he sought more time, or sought to make further submissions. In any event as I have already said, the applicant made comment on this issue at T7 to T10. The Tribunal said at T10.4:
“We'll come back to this point at the end.”
Then at T28.9:
“A: Yes, and people who have good relations with the Albanians.
IN: Yes, people with disability and people who are in good relations with the Albanians.
TM: Alright, well, I have no more questions to ask you. Before we finish are there any other points you would like or any issue that you feel hasn't been fully covered?”
The applicant then returns to the issue of his employment and discrimination and the transcript shows that, apart from a short reference at T30.5 to medical expenses, the applicant continues on this issue until the top of T31 (essentially the end of the hearing). There is no indication at this stage by the applicant that there was anything new that he wanted to submit and had been prevented from doing so. In all these circumstances, this ground must fail.
In relation to this ground, the applicant also claims that the failure to provide him with an opportunity to comment went to the issue of his credibility. As I have found that he was given a reasonable opportunity, it is not necessary to consider this assertion in relation to ground 2 any further. But I will return to this issue as it may relate to the grounds below.
The applicant’s third ground complains that:
(1)The Tribunal did not give the applicant an opportunity to comment on a finding relating to contradictory evidence about criminal charges that the applicant had said would arise if he were to return to Macedonia.
(2)The Tribunal ignored material put forward by the applicant (see CB 113) (“page 40” as referred to by applicant and by the respondent in written submissions).
The complaint about the “contradictory evidence” stems from the Tribunal’s decision record where at CB 161.1:
“He claims that his uncle was told that criminal charges would be brought against him in his absence. However, he contradicts this with the further claims that if he returns he’ll be obliged to go into the army.”
It is significant to note, as the respondent submits, that this is not a finding by the Tribunal but a juxtaposition of two claims made by the applicant himself. The following is relevant material to this complaint:
1)In a written submission to the Tribunal dated 9 May 2003 and received by the Tribunal on 13 May 2003, the applicant says at CB 70.5:
“The government has already requested that I attend the reservist army. When the conflict erupted in Macedonia, An officer from the Office of Defence went to my uncle’s place and wanted to hand in a request for me to attend as a reservist in the army in the zones of conflict. He demanded my uncle sign that he received the request. My uncle refused to sigh and did not accept that he received the request. The next day my uncle told the army authorities that I have left the Country. They told him that they are going to press criminal charges in absence and that the Ministry of Defence can prosecute anyone who fails to respond. The fine is monetary and a jail sentence. Please refer to attachment 5, translation of a newspaper article page 1.”
2)In an attachment to a submission to the Tribunal dated 8 July 2003, the applicant provides a translation of an extract of part of the transcript of the hearing before the Tribunal. At CB 143.6:
“Applicant: They haven’t called me again, but they told my uncle that they could take legal and court action for this because I did not respond to the call-up notice.
Interpreter: No, I haven’t received another call-up notice, but officials have explained to my uncle if I don’t accept that cal -up notice then I have to take responsibility for that.”
3)This is mirrored at T24.4 where the following is reproduced:
“MT: have the defence officials tried since then to call you up?
IN: have the defence officials tried since then to call you up, has someone tried?
A: To call me again they haven’t tried, but they told my uncle that they can take legal court action for that, because I haven’t responded, because I am not responding to the call up notice.
IN: No, I haven’t received another call-up notice but officials have explained to my uncle if I don’t accept that call up notice then I have to take responsibilities for that.”
4)In the Tribunal’s account of the applicant’s evidence the Tribunal says at CB 153.5:
“He also repeats his claim that he is a reservist and was called up to serve in the army when the 2001 insurgency broke out. His uncle was served the call-up notice on his behalf but refused to sign it. He told the authorities that the applicant had left the country. He was informed that criminal charges would be brought against the applicant in his absence. The penalty is a fine and a goal sentence.”
5)At CB 157.2 in reference to the applicant’s subsequent version of the hearing before the Tribunal the Tribunal says:
“He notes that one of his statements was erroneously translated as “…I cannot understand the Government. On the one hand they are saying that I am not able to do national service; on the other hand they are sending me the call-up notice.” He states that the correct translation of what he said was: “I cannot understand how on one hand the Government says that I am not capable for work and on the other hand I am capable for military service.” The applicant attaches his translation. It is signed by a NAATI-accredited translator.
I note that I accept the applicant’s version because it is more logical and is by a NAATI-qualified translator. I note also that it is the only error which the applicant specifies.”
The Tribunal’s account and understanding as set out above corresponds with the applicant’s version of what was said at the hearing at CB 143.6. Significantly, the Tribunal accepted the applicant’s preferred translation of what he said at the hearing for the purposes of making its decision. Clearly however, this does contradict his earlier claim regarding the criminal charges, and provides the basis for the Tribunal’s juxtaposition of the two contradictory statements at CB 161.1 in its decision record. Further, as the respondent also submits, the Tribunal found in the following paragraph at CB 161.3 that the authorities did not tell the applicant's uncle that they were intending to press charges against the applicant. In this regard, the Tribunal gives its reason that an exception to charges being laid would apply to the applicant under a relevant “Defence Law”. The Tribunal finding here did not turn on the contradictory juxtaposition of the applicant's claims. In any event there is, as the respondent has also submitted, no obligation on the Tribunal to raise with the applicant inconsistencies in his own evidence. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. Further, even if this could be characterised as part of an adverse finding, as the applicant appears to assert, there is High Court authority: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte ApplicantS154/2002 (2003) 201 ALR 437 at [54] per Kirby J, that the Tribunal is not required to invite comment on its thought processes on the way to a decision, qualified by the principle that the Tribunal should advise of any adverse conclusion which would not obviously be open on the known material supplied by the applicant. This depends on the circumstances of each case. In this case, the material, that is the claim through the uncle that he would face criminal charges on return, and the claim relating to the obligation to go into the army on return was provided by the applicant himself. It is open to the Tribunal to reach the conclusion that it did because the statements were presented separately by the applicant as what would happen on return. The applicant has significantly not said that both would occur, nor that one was an alternative to the other. Having made the two claims it was open to the applicant, and to the Tribunal, to see that a juxtaposition of the two claims would be contradictory. Finally, I accept the respondent's submission that even if there is some deficiency in the statement complained of by the applicant, the Tribunal's decision turned on a reason distinct from this statement of which the applicant now complains.
The applicant also claims that the Tribunal ignored the document, put forward by the applicant: "Extract translation from a newspaper article" (at CB 113), which referred to another person who was imprisoned "for avoiding to serve in the army," and mentions that statistics show that legal proceedings against people not going into the army has doubled. The applicant’s argument by implication is that he too would face similar difficulties. However, it does not follow that the Tribunal was obliged to find the applicant would also be imprisoned. There was nothing presented by the applicant, other than the reference to what was told to the uncle (that is that charges would be brought) to link the applicant's circumstances to the subject of the article and to the mere statement without detail, that this person had been imprisoned. The subject in the article may not for example, have qualified for an exception or exemption under the Defence Law as the Tribunal found in the case of this applicant. Secondly, as has been noted in relation to ground 1 above, the absence of any express mention of particular material does not mean the Tribunal failed to consider it, and there is evidence in this case provided to the Court by the applicant, that is, the transcript of the hearing, where the Tribunal emphasised with the applicant that it had carefully read his submission, including the attachments.
The applicant also asserts that the Tribunal did not take into account issues raised by him in a letter sent to the Tribunal after the hearing, where he stated there were errors in the process of interpreting at the hearing before the Tribunal, in particular, under the heading "Reserve Army" (“second paragraph p143”). The letter from the applicant is reproduced at CB 141. The attachment to it is at CB 142 to CB 143, with the "Reserve Army" heading appearing at CB 143. This document has been certified by an accredited translator as a correct translation of a tape of the hearing before the Tribunal and relevantly juxtaposes what it is claimed the applicant said with what the interpreter is said to have translated:
“Applicant: They haven't called me again, but they told my uncle that they could take legal and court action for this because I did not respond to the call‑up notice.
Interpreter: No, I haven't received another call-up notice, but officials have explained to my uncle if I don't accept that call-up notice then I have to take responsibilities for that.”
The applicant's claimed use of the words "legal and court action" appears to have been translated as: “I have to take responsibilities for that.”
First, it should be noted this translator, that is, the one who provided the certified translation now relied on by the applicant in his application, is the same person who translated the material provided to the Court by the applicant in the transcript of the hearing attached to the applicant’s affidavit of 1 November 2004, (see certification after page 31 of the applicant's annexure to his affidavit). That is the two versions (Tribunal hearing transcript annexed to the affidavit provided to the Court and extracts from the hearing provided to the Tribunal) were prepared and certified by the same translator. Second, the translation attributed to the applicant in the extract at CB 143, does not exactly correspond to the translation attributed to the applicant at T24, in the annexure to his affidavit. Third, the extract at CB 143 needs to be treated with some caution as comparing paragraphs 2 and 3 to the version in the full transcript at T24, there appear to be some parts missing, between the paragraphs, in the extract. Fourth, the applicant's covering letter to the Tribunal, at CB 141, says he is not complaining about the interpreter, and he has no doubt the interpreter did an excellent and professional job. He also thanks the Tribunal for its handling of the hearing. The only error in the translation which is described as a "major concern” relates to paragraph 3 in the attached extract at CB 143. All the other errors are described as "minor errors." Presumably, this encompasses paragraph 2 at CB 143, which is the part containing the reference to what the uncle was told would happen to the applicant on return, which is the one half of the Tribunal's statement complained of by the applicant in this ground.
Finally, if what the applicant complains about now is that there were errors in the translation leading to what he describes as the Tribunal's findings on contradictory evidence about criminal charges, then notwithstanding that the version attributed to the interpreter in both versions of the translation does not have the interpreter using the words "criminal charges" or "legal and court charges," the Tribunal, as is evident from the very statement complained of in its decision record, certainly understood that the applicant claimed that his uncle was told that criminal charges would be brought against him.
For these reasons ground three must fail.
The applicant’s fourth ground is that the Tribunal unreasonably drew negative inferences about the applicant's credibility based on the applicant's failure to mention in his application for review before the Tribunal, his claim about the burning of the garage and destruction of the shop. The applicant says this is especially so because in his application for review, dated 14 December 2001, he said as copied at CB 39:
“I will submit a submission later on, along with support documents, which I'm waiting to arrive from overseas which I will have translated.”
The Tribunal said in its decision record at CB 163:
“I am unable to accept the applicant's claim that he did not mention this claim prior to lodging his submission of 13 May 2003 because he did not find out about the calls until the end of 2001. If so, he could have included this important claim in his review application of 14 December 2001.”
It may be that the applicant felt that he did not need to mention this claim in his application for review and was waiting to bundle up all his claims, old and new, in one submission. But in the circumstances of this case, it is difficult to see how this finding by the Tribunal can translate into jurisdictional error.
The Tribunal being unable to accept the applicant’s claim in this regard, is only one of a number of factors relied on by the Tribunal in rejecting the application, and the claim relating to the motivation for the burning of the garage. The particular issue is the failure to mention at an earlier time that the applicant's uncle had received telephone threats stating that the burning of the garage was a warning. As can be seen when this is put into the context of the Tribunal's reasons, it was only one factor in rejecting the applicant's claims regarding the motivation for the burning of the garage. Even without this factor, there was sufficient material for the Tribunal to make the ultimate finding that it did in relation to the harm feared from Macedonian nationalists. There is nothing in the material before me to show that the Tribunal was unreasonable in drawing the “negative inference” complained of by the applicant. A general statement that he will provide a fuller submission “later” may be seen to be relevant to a situation where the Tribunal may have said that the application lacks detail. But what the Tribunal relied on (partly) in this case was the total absence of any mention in the revised application linking the destruction of the garage to the motivation of the Macedonian nationalists. The Tribunal made a finding which went to the creditworthiness of the applicant’s claims. This finding was open to it on the material before it. I agree with the respondent's submission that this was a logical inference which could be drawn from the fact that this particular claim was not put before 13 May 2003. This was a finding of fact, and to the extent that it is a finding on credibility, this is, of course, the function of the decision maker. This ground also must be rejected.
The Tribunal made findings in relation to all the issues raised by the applicant:
1)His disability in relation to the provision of medical treatment, and in relation to his employment.
2)His disability in relation to military service and whether the relevant law amounted to discrimination.
3)The damage to his shop and the garage, and the relationship with non-Macedonians.
None of the grounds raised now by the applicant can be sustained to show jurisdictional error on the part of the Tribunal. Nor is there anything else in the matter before me to show any such error on the part of the Tribunal. Accordingly, this is a privative clause decision. The application to this Court has been lodged out of time, and therefore the respondent's Objection to Competency must be upheld. The application is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 8 August 2005
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