SZEMW v Minister for Immigration - [2005] FMCA 1700

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEMW v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1700

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Israel on the basis of imputed political opinion – applicant claims incorrect translation by interpreter before Refugee Review Tribunal.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 425; 474; 483A

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10

Applicant:

SZEMW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2981/2004

Judgment of:

Emmett FM

Hearing dates:

8 August 2005 & 17 October 2005

Date of Last Submission:

17 October 2005

Delivered at:

Sydney

Delivered on:

21 November 2005

REPRESENTATION

The Applicant appearing for himself

Counsel for the Respondent:

Ms S. Mason

Solicitors for the Respondent:

Ms B. Rushton & Mr P. Reynolds, Clayton Utz

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the applications before this Court are dismissed.
That the Applicant pay the costs of the First Respondent as follows: Costs for taxation under Order 62 of the Federal Court Rules in accordance with Rule 21.02(2)(c) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2981/2004

SZEMW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant is a national of Israel and arrived in Australia on 7 July 2002.
On 16 January 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 31 January 2003, the Delegate refused to grant a protection visa on the basis the Delegate was not satisfied that the Applicant had a well founded fear of persecution within the meaning of the Refugees Convention.
On 14 February 2003, the Applicant applied to the Tribunal for review of the decision of the Delegate.
On 31 May 2005, the Applicant filed an amended application for judicial review of the Tribunal’s decision, pursuant to s.39B of the Judiciary Act (“Amended Application”).
The Amended Application claims that the interpreter at the Tribunal hearing did not:
a)Interpret information from the Applicant which could be crucial to the decision of the Tribunal;
b)Did not correctly interpret during the hearing, thereby denying the Applicant the right to present information to the Tribunal.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Refugees Convention.

The Tribunal proceeding

On 14 October 2003, the Applicant was invited, pursuant to s.425 of the Act, to appear at a hearing and give evidence and make submissions in support of his application. Although the Tribunal required the form to be returned by 30 October 2003, the Applicant did not sign and complete the form until 19 November 2003, some 5 days prior to the Tribunal hearing. By the form, the Applicant requested an interpreter in the Hebrew language.
The Tribunal hearing took place on 24 November 2003. The Applicant gave evidence and a Hebrew interpreter was available at the hearing to assist the Applicant.
In his application for review by the Tribunal, the Applicant gave the following reasons for his application:
“The officer states that freedom of opinion is allowed in Israel. This is correct in general however when specific issues of pro Arab nature are the point of dispute then our freedom no longer exists. The situation has become worse daily and the authorities are becoming more intolerant with any people they suspect. I experienced discrimination while I was in Israel but since I have been in Australia the conditions have become worse in Israel and the discrimination I previously suffered will now be persecution.”
The Tribunal had before it the Department’s file, including the protection visa application and the Delegate’s decision record. The Applicant gave oral evidence to the Tribunal.
The Applicant claimed in his statement of claim in support of his application for a protection visa the following:
a)The Applicant had a business in the produce market in Israel with his father and uncle;
b)The Applicant had a very strong feeling against violence;
c)The Applicant asserted that his pro-peace attitude caused him problems since his army days;
d)The Applicant asserted that he served only 7 months of his 18 months military service, the remainder being in military detention;
e)The Applicant put his detention down to his opposition to violence and his refusal to support any violent activity;
f)The Applicant asserted that his market was bombed 5 times and his father’s store was destroyed;
g)The Applicant asserts that because he did not blame the Arabs for the destruction of his markets that the Israeli’s saw him as a traitor;
h)The Applicant asserted that a police officer began to target him as a traitor and even as a spy;
i)The Applicant stated that he is not a spy that he is simply an anti violence person;
j)The Applicant asserts that his opinion is against what the authorities believe;
k)The Applicant claimed that any kind of unrest that happened in his area bought suspicion upon himself and he was called in many times to the police station to be questioned;
l)The Applicant asserted that he was a target because of his opinion of the political situation;
m)The Applicant asserted that in November 2001 the local police tried to frame him for a robbery, that he was questioned, that the police were very rude to him and threatened him that he would pay dearly unless he showed loyalty to Israel;
n)The Applicant claimed that he has a bad reputation with both the local Israeli’s and the police;
o)The Applicant claims that he fears that the Israeli police and the local Israeli population will mistreat him if he were to return to Israel;
p)The Applicant asserts that he will be detained and framed for any problem that happens because he is under suspicion for assisting the Arabs;
q)The Applicant asserts that the situation in Israel has become much worse since he has been in Australia and that if he was to return he would be in a lot of trouble because he is already suspected of being pro Arab and assisting the Arabs.
The Tribunal, in its findings and reasons, noted that there were a number of discrepancies between the Applicant’s claims in his protection visa application and his oral evidence before the Tribunal at the hearing. However, the Tribunal noted that it did not draw any adverse inference from any such inconsistency and had primary regard to the Applicant’s oral evidence. In those circumstances, it is apparent that the information provided by the Applicant in his protection visa application was not information considered by the Tribunal to be the reason or part of the reason for affirming the decision under review. It was not necessary, therefore, to give notice to the Applicant pursuant to s.424A of the Act.
The Tribunal noted that the Applicant’s claims were based on the Convention ground of imputed political opinion. The Tribunal identified the imputed political opinion as arising from his outspoken anti-violence pro-peace views in Israel as a result of which he was harassed, arrested and detained on a number of occasions. The Tribunal noted that he feared harm from the police and the local Israeli population.
The Tribunal accepted that the Applicant is a national of Israel and accepted that the Applicant may have been detained on one or more occasions by military authorities while he was performing his military service.
In his oral evidence the Applicant asserted that he was discriminated against on the basis of the colour of his skin and his Arabic sounding surname. The Tribunal did not accept this assertion and observed that the Applicant did not display physical features that would set him apart from most Israeli nationals. Further, the Tribunal noted that the Applicant’s ethnicity and religion could be easily verified by the military authorities in circumstances where the Applicant is Jewish and not Arab by ethnicity.
The Tribunal noted that at the hearing the Applicant appeared to view himself as someone superior to his friends and peers and the Tribunal observed that such an attitude may well have bought him into conflict with the army. However, the Tribunal was not satisfied that the Applicant was detained or significantly harassed during his term of military service because of is imputed ethnicity, his imputed political opinion or any other Convention reason.
Further, the Tribunal was not satisfied that the fact that the Applicant was denied the right to call his parents during his episodes of detention was essentially and significantly for a Convention reason.
The Tribunal accepted that the Applicant held anti-violence pro-peace views which he manifested following bomb blasts at the markets where he worked.
The Tribunal accepted that his views included defending Arab workers and business owners in the markets where he felt they were being accused unfairly for being responsible for the blasts. The Tribunal however did not accept that the Applicant’s views were the essential and significant reason behind the treatment he received by the police subsequently.
The Tribunal had regard to the Applicant’s claim that his house was searched 5 or 6 times by authorities in 1998-1999. The Tribunal however, considered it “implausible” that the Israeli authorities would devote such resources to searching the Applicant’s house just to teach him a lesson or get back at him for making pro-peace statements or being sympathetic to the Arab population in the markets.
The Tribunal noted that the Applicant, in his oral evidence, asserted that his house was searched for weapons and drugs and was satisfied that such searches were for legitimate concerns and objectives. Further, the Tribunal noted that apart from finding the searches stressful, the Applicant had suffered no harm, let alone serious harm. The Tribunal further noted that the police never charged him with an offence. The Tribunal was satisfied that the Applicant’s experiences in that regard did not amount to persecution within the meaning of the Convention and do not give rise to any real chance of persecution in the reasonably foreseeable future.
The Tribunal accepted that the Applicant was arrested and charged for possession of drugs. The Tribunal did not accept that the conviction of the Applicant on criminal charges was because of his uncontroversial views. rather because of criminal enterprise. The Tribunal noted that the judiciary in Israel is independent and provides citizens with a fair and efficient judicial process. The Tribunal further noted that the sentence of community service was not disproportionate to the crime in respect of which the Applicant was convicted
The Tribunal accepted that the Applicant was routinely stopped and asked for his identification card and questioned by the Israeli police. However, the Tribunal noted that each time the Applicant was released following questioning about his identification without consequence. The Tribunal found that the police actions in this regard were appropriate in circumstances where Israel was concerned to protect its citizens against suicide bombers and similar security threats.
The Tribunal further, did not accept, that the detainment of the Applicant for 19 hours and interrogation by the police in November 2001 arising out of a criminal incident where the owner of a mini market in the Applicant’s neighbourhood was mugged at gun point, was for any reason other then the purposes of a legitimate investigation. The Tribunal did not accept that mistreatment at the hands of the police during this episode was because of the Applicant’s political opinion, either express or imputed.
Whilst the Tribunal accepted the Applicant’s claims in respect of the harm suffered by him, it did not accept that the harm amounted to serious harm for the purposes of s.91R(1)(b) of the Act.
The Tribunal noted that there was no evidence or material before it to suggest that the authorities or the police had any involvement in the burning down of the Applicant’s shop some time between 1994 and 1996. The Tribunal noted that the Applicant did not claim that the shop was targeted for the reason of his political opinion.
The Tribunal was not satisfied that the Applicant provided any satisfactory reason as to why the police or security forces would have an ongoing interest in him. The Tribunal noted that the Applicant was not a member of any political party and did not associate with Arab groups or organisations even though he may at times have been sympathetic to the Arabs. The Tribunal noted that the Applicant either merely employed Arabs or worked with them at the markets.
The Tribunal noted that, at the hearing, the Applicant was opposed to the policies of the Arab leaders just as much as he was opposed to the policies of the Israeli leaders.
The Tribunal found that the independent country information was, to the effect, that the government of Israel does not harass its opponent citizens or hamper their freedom of speech.
The Tribunal was not satisfied that the Israeli authorities considered him a traitor and a spy, or ever held or hold an adverse interest in the Applicant for the reason of his political opinion.
The Tribunal was satisfied that, in the event the Applicant returned to Israel and continued to express his views at the same level as previously, there was no real chance that he would face persecution then or in the reasonably foreseeable future.
Further, the Tribunal was satisfied that it was reasonable for the Applicant to relocate to a different part of Israel if he did not wish to return to his locality. The Tribunal was not satisfied that there was any acceptable reason as to why the Applicant could not relocate internally.
The Applicant did not claim that he would not be able to earn a living. The Tribunal noted that the Applicant is young, highly educated, and has extensive experience running his own business and is clearly able to adapt to new environments given his ability to live and support himself in Australia over the past 18 months. The Tribunal concluded that it was satisfied in all the circumstances it is reasonable for the Applicant to relocate within Israel.
On 16 January 2004, the Tribunal handed down its decision made on 19 December 2003, affirming the decision of the delegate not to grant the Applicant a protection visa on the ground that he did not have a well founded fear of persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol.

The proceeding before this Court

The Applicant claims that he was denied a fair hearing because of difficulties with the interpreter provided by the Tribunal. His complaints were not particularised in his application before this Court.
The First Respondent submits that it is clear from the transcript that the Applicant elected to give his oral evidence to the Tribunal in English with the assistance of the interpreter as required.
The appropriate test for assessing whether or not the standard for interpretation has led to a denial of procedural fairness, such that it constitutes jurisdictional error, is as identified by the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230. The standard of interpretation at the Tribunal hearing must be so inadequate that the Applicant is effectively prevented from giving evidence, or errors made by the interpreter must be material to the conclusions of the Tribunal and adverse to the Applicant.
The test is essentially identified as one of “practical injustice” which involves the assessment of whether any denial of procedural fairness affected the outcome of the proceedings.
The First Respondent submitted that at no time did the Applicant complain about the translation that was occurring, in circumstances where his oral evidence was given, predominantly, in English, demonstrating that he had a reasonable command of the English language as well as Hebrew.
Ultimately, the Tribunal was not satisfied that the opinion held by the Applicant, being one of pro-peace and anti-violence, was a political opinion, or an imputed political opinion, in respect of which there was any material to satisfy the Tribunal that such an opinion or imputed political opinion would give rise to persecution for a Convention reason.
At the hearing of this matter, the Applicant sought to rely on two documents annexed to his Amended Application entitled “Extract parts from tape 1 & 2” and “Additional Extract parts from tape 1 & 2”. The tapes were not tendered. The documents were objected to by the First Respondent as not being in admissible form and were rejected. The First Respondent tendered a copy of the transcript annexed to the affidavit of Caitlin Marie Chittenden, sworn 5 August 2005. The Applicant agreed to work from the First Respondent’s transcript, but stated that he had only received a copy the night before.
For those reasons, the matter was adjourned, on 8 August 2005, to provide an opportunity to the Applicant to file a further amended application specifying the grounds and full particulars upon which he relied by 4 October 2005. The proceeding was otherwise adjourned to 17 October 2005.
On 30 September 2005, the Applicant filed a document headed “Submission” seeking a further adjournment in the following terms:
“1.My hearing has been adjoining until 17 October 2005 to give me possibilities to better prepared for my case.
2.To make my case more presentative I have ask advise from the lawyer, but unfortunately I have very limited resources to my disposal and I was pushed to look for other options.
3.I had ask for advise from my friend lawyer in Israel. Considering that she was present during my hearing in the Refugee Review Tribunal and familiar with my case and problem with interpreter during hearing she have all abilities to give me right advise on my case.
4.I already sent to her copy of the Green Book and transcript of the hearing.
5.Considering that I sent a documents in Israel and that take more time I would like to ask to give me additional 6 weeks for preparation of my case.”

When the proceeding returned before me on 17 October 2005, the Applicant did not produce any evidence as to the name of his lawyer in Israel, the nature of any communication with the lawyer, or why he was unable to avail himself of transcription services in Australia, particularly where he had managed to obtain translations in the past of his 2 documents that were rejected. I pointed out to the Applicant that the Tribunal decision had been handed down on 16 January 2004. The Applicant had filed his first application in this Court on 1 October 2004. That application, essentially, sought a merits review without particulars of the Tribunal’s decision. An amended application was filed on 26 April 2005, challenging the correctness of the interpreter at the Tribunal hearing. On 2 May 2005, the Applicant was directed to file and serve a “proper amended application, including all grounds and complete particulars” by 31 May 2005. On 31 May 2005, the Applicant filed the document headed “Amended Application” annexing the 2 translated documents that were rejected.
The Applicant made no complaint about the translation at the Tribunal hearing, and made no such complaint in his first application in this Court, filed some 9½ months after the handing down of the Tribunal decision. The Applicant has made little effort to prosecute his claims before this Court despite being given 3 further opportunities to file an application in proper form with full particulars.
The Applicant today states that he requests further time to prepare and present his case based on mistranslations of the interpreter at the Tribunal hearing. It was always open to the Applicant to access the tapes and obtain an authorised translation. That step was never taken. The Applicant has had the First Respondent’s translation at least from 7 August 2005. That is some10 weeks.
I do not accept the Applicant’s explanation for his delay in being able to continue with his claims on the basis that he has not received advice from his “friend lawyer” in Israel. I note that the Applicant received advice from a panel advisor some time prior to filing his amended application on 26 April 2005. The Applicant has had more than ample time to obtain any advice he may seek, to obtain a translation of the Tribunal hearing, to consider the First Respondent’s translation and to file proper particulars of his claim. In the circumstances, his application for further adjournment was refused.
In summary:
a)The Applicant did not identify any mistranslation before the Court today despite being given a further opportunity to do so.
b)The Applicant made no complaint at the Tribunal hearing of any mistranslation.
c)The Applicant made no complaint of any mistranslation of the Tribunal hearing in his first application lodged some 9 ½ months after the hearing.
d)The Applicant did not provide any particulars of any mistranslation until annexing the 2 documents to his Amended Application filed on 31 May 2005.
e)Those 2 documents were properly objected to at the hearing before this Court on 8 August 2005, and were rejected.
f)The Applicant had the opportunity to consider the First Respondent’s translation for some 10 weeks for the purpose of identifying any errors of translation. None were particularised.
In the circumstances, the Applicant’s Amended Application filed 31 May 2005 is dismissed.
To the extent that the Applicant raised grounds in his first application, filed in this Court on 1 October 2004, those grounds involved disagreement with the findings and conclusions of the Tribunal. Those grounds were in the following terms:
“1.The RRT failed to recognise that I have no protection from the Israeli Authorities because of my political view, which opposed the Government politic.
2.Despite strong evidence the RRT refused to recognize hostile from Israeli police and that I will be in danger from Israeli authorities.”
No particulars were ever furnished of those grounds. As is apparent from the analysis in these reasons of the Tribunal’s decision, the findings of fact made were open to the Tribunal on the evidence before it. Those findings are a matter for the Tribunal. In dealing with an application for relief under s.39B of the Judiciary Act, it is no part of the function of this Court to engage in fact finding about the merits of the Applicant’s case. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [10]).
Accordingly, the Tribunal’s decision is not affected by jurisdictional error.
In the circumstances, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
All the applications filed by the Applicant in this Court are dismissed with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 10 November 2005