SZEXX v Minister for Immigration - [2005] FMCA 1370

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXX v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1370

MIGRATION – RRT decision – Indian claimed persecution due to Christian beliefs – disbelieved by Tribunal – mistakes by interpreter during part of hearing – no jurisdictional error found.

Migration Act 1958 (Cth), ss.474(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Review Tribunal ex parte H (2001) 179 ALR 425

Applicant:

SZEXX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2235 of 2004

Judgment of:

Smith FM

Hearing date:

31 August 2005

Delivered at:

Sydney

Delivered on:

31 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A. Alex

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2235 of 2004

SZEXX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) which seeks judicial review remedies in relation to a decision of the Refugee Review Tribunal dated 25 May 2004 and handed down on 16 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The jurisdiction of the Court under s.483A is "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". In a matter such as the present my powers are under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa or any other permission to stay in Australia.
The present applicant is a national of India who arrived in Australia in December 2003. He lodged an application for a protection visa on

13 January 2004.
In his application he indicated that he came from the state of Gujrat and belonged to the ethnic group Gujrati Dalit, and he left blank the question enquiring about his religion. In the spaces in the form inquiring about his reasons for seeking protection from Australia there were handwritten insertions which the Tribunal transcribed in full in its reasons:
I was in fear of persecution from the locals in my village where I spent 48 years of my life. I am a farmer…in the State of Gujrat. We have a lot of Hindu majority people in my village …We all people are living in peace and harmony until riots got to my village. I had to be forced to obey my Hinduism. Killing of the Hindus and Muslims make me sick. I think of going to a church and becoming a Christian. My people of village very angry with me. They tell me to leave village in order to live. I leave my land and my house in village to come to here.
Many villagers in my home state people converting. They think Hindus are no good as the well as Muslims. So many village people become Buddhists and Christian. I become exhausted of the Hinduist policy and rules. So I think to become Christian. Christian people no worry in India. But in my small town in my state in Gujrat in India, no one becomes a Christian. My relatives and family friends oppose me. They beat me and don’t let me go to the church that was 40 minutes walk from my village. People of my village will kill me if I go back to my village or locality. The Hinduist people take my home and burned it. My land and my village where I grow crops are no longer allowed to me. I went to one of the big cities in the state to Ahmedabad. Here my friend told me to go out of the country to become a Christian and live happily. But I have to pay the price by the land of mine. The people in the locality of my village declared me to be chopped off when I came to Australia to seek refugee status. Christians in India are not safe and hence I would not be able to pursue my life in India as a Christian. So I come to Australia to seek refugee status.
No supporting evidence was provided at that stage nor at any later stage.
A delegate refused the application on 20 January 2004, and the applicant sought review by the Tribunal. His application contained a handwritten statement which is somewhat rambling, but referred to the same background claimed in his visa application. It included the statement: “I don't like a Hindu religion and I want to become a Khristion”. This word is then referred to throughout the statement.
The applicant attended a hearing before the Tribunal on 27 April 2004, and an aspect of what happened has been put forward in the applicant's amended application to this Court. It is not possible for me to make firm conclusions about what happened during the hearing since the applicant has not put in evidence a transcript of the hearing. However, the Tribunal provided a six page description of the hearing, and I have no reason to conclude that it is inaccurate.
It appears that the applicant attended wearing signs of adherence to a Hindu religion. At the start of its description of the hearing, the Tribunal said:
I asked the applicant what his present religion is. He replied that he is a Swaminarayan Hindu. I asked the applicant what the red dot and two stripes on his forehead signified. He replied they were symbols of his religion.
The applicant also referred to his interest in a "separate religion" which he said "advocates world peace". It seems that the Tribunal then questioned him about that religion, and about the applicant's own religious beliefs and practices. The Tribunal said:
I asked the applicant if he still regarded himself as a Hindu. He replied that he did as he had to belief in some God. I suggested to the applicant that it was evident from the symbols on his forehead that he was advertising the fact that he is Hindu.
However, the applicant maintained that he had come to Australia because of the practice of Christianity in Australia.
The Tribunal indicated, about two-thirds into its description of the hearing, that the applicant when referring to Christianity had been using a word which the interpreter had not, until that point, understood to be a reference to Christianity. The Tribunal said:
For some time during the hearing the applicant referred to Christianity as "Kritidharn". (The interpreter did not become aware until some time later in the hearing that the applicant was in fact referring to Christianity).
As a result of the error, the Tribunal itself may have been unclear about the separate religion which attracted the applicant in Australia. However, when it described its questioning the applicant about his statements in his visa application, it said:
I referred the Applicant to question 40 (folio 10, Departmental file) where he stated “I think of going to a church and become Christian.” I asked the Applicant why he referred to the word Christian. He replied that this is the only religion that advocates peace. (It was at this stage that the Tribunal became aware that the Applicant had been referring to Christianity throughout the hearing. The interpreter stated that she had not realised that the Applicant was actually referring to Christianity from the beginning of the hearing, and was certain that he had in fact been referring to Christianity throughout.) I asked the Applicant which of the Christian religions he was referring to. He replied that it was the religion that was prevalent in Australia. He stated that he still had not seen any of these Christian religions, so he could not say which one it was. He stated that he had not come into contact with any people from this religion.
The Tribunal then described another two pages of questioning. It is clear that, by this stage in the hearing, nobody was under any misapprehension about the religion to which the applicant was referring. This included his evidence about his position in his village:
The Applicant agreed he was still a Hindu at that time. He stated he got fed up and had to leave the village. He stated many people had started to convert to Christianity but the religion is not there. People have left the city to go to places where they can convert. I asked the Applicant where people went to convert. He replied if he had known he would have gone there and converted himself. I asked the Applicant if he had tried to find out where he should go. He replied he had not met anyone after that.
I referred the Applicant to question 41 of his protection visa application (folio 10, Departmental file). He confirmed that his family, relatives and friends opposed him. I asked if he had been beaten. He replied there were physical conflicts, but no injury occurred. I asked to whom he was referring. He replied it was people from his village. I reminded him that he had stated his family was not living in the village and asked him to explain to whom he was referring when he said family. He replied he was referring to family members, for example first uncles, second uncles, as he comes from a large family. His wife’s family was not involved because they live near (location).
I referred the Applicant to his protection visa application claim that he was not allowed to go to the church that was a 40 minute walk from his village. I put to him that he had stated earlier on in the hearing that there were no churches nearby. He replied that he had not seen any churches because he worked outside the village. He stated he did not know of any churches. I asked why he referred to a church in his application. He replied that he knew there was a church but did not know where it was and it was not in the village. I asked why he had referred to the church being 40 minutes walk from the village. He replied it was probably in the adjoining village. I put to the Applicant that he did not know where there was a church. He replied he did not.
The Tribunal then questioned the applicant about his claims about his house being burnt down. He now denied that this had happened.
The Tribunal also said:
I asked the Applicant if he had attended any churches since arriving in Australia. He replied he intended to go as soon as he made contact with a suitable person. He stated he intended to see someone who was already practicing that religion. He stated he had made enquiries by asking other people. I asked the Applicant what people he would approach to ask about the religion. He replied that by asking people he would know and find out if they knew anyone in the Christian religion. Talking to people could lead him to finding out about the religion and going to church.
I put to the Applicant that I was not convinced that he had any interest whatsoever in any Christian religion. I stated that it was clear from what he had said in evidence, and the fact that he was wearing Hindu symbols on his forehead, that he was a practicing Hindu. I also put to the Applicant that he had fabricated his claims in order to obtain refugee status. I asked the Applicant if he wished to add anything. He replied “what else can I say?”
In my opinion, the Tribunal mades it clear throughout its statement of reasons that, when it decided the matter and wrote its reasons, it was under no misapprehension as to the fact that the applicant at all times during the hearing had referred to Christianity as "the world peace religion" which he was identifying as being practised in Australia.

It also made clear that it understood all his claims in respect of his visa application.
The Tribunal made this critical finding:
In dealing with this application the Tribunal has formed the view that the applicant lacks credibility and his claims cannot be accepted. The applicant's evidence is internally inconsistent and contradictory. This leads me to reject the applicant's claims and confirm the delegate’s decision not to grant the applicant a protection visa.
The Tribunal said:
I do not accept the applicant's claim that he had any interest in Christianity or any other religion except the Hindu faith.
In this respect, it referred to his adherence to the Hindu religion at the hearing, and his evidence that he had made no attempt to pursue his alleged interest in Christianity.
The Tribunal also did not accept that the applicant suffered any persecution prior to leaving India, and referred to contradictions in his evidence about this. Its conclusion was:
The applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker. The Tribunal does not accept the applicant as credible and consequentially rejects all his claims. The Tribunal does not accept that the applicant was interested in Christianity or persecuted for a Convention reason. I do not accept that the applicant is of any adverse interest to the Indian authorities or any other person for a Convention reason.
In my opinion, on the Tribunal's description of the evidence given by the applicant to it at the hearing, its conclusion was plainly open to it as a matter of law, and I can find no jurisdictional error affecting its conclusion.
The applicant's original application in this Court raised no ground of judicial review, but merely said that the Tribunal decision "is wrong". An amended application filed in January contains three pages of contentions which are repetitive, and sometimes plainly inaccurate. For example, there is an allegation that the Tribunal incorrectly applied "the internal flight principle", yet it did not invoke any such principle.
However, the amended application does raise concerns about the initial misunderstanding by the interpreter as to the “world peace religion” which was being referred to by the applicant at the hearing.
I consider that four issues arise in relation to this:
i)Did the circumstances described by the Tribunal vitiate the Tribunal decision due to an appearance of bias?
ii)Was the hearing unfair in denying the applicant a reasonable opportunity to put his case to the Tribunal member?
iii)Was the mistake by the interpreter such as gave rise to relevant unfairness in the hearing? and
iv)Did the circumstances cause the Tribunal to make a material mistake about the applicant's claims to protection or to satisfy the definition of refugee?
In relation to the first issue, the amended application contends:
it asked itself wrong questions that seemed biased and did not pay any heed to the information provided by the applicant.
This contention or bias has not been elaborated by the applicant in his oral or written submissions. An affidavit filed by him claims: “the Tribunal had already wrongly made up its mind with contaminated information”, and that it “steered the whole proceeding in a biased manner and dealt with my case in a patronising manner”.
The relevant principles in relation to apprehended bias are identified by the High Court in Re Refugee Review Tribunal ex parte H (2001) 179 ALR 425 at [27], [28] and [31]. I have considered those principles, and am not persuaded on the evidence before me that a fair-minded lay observer would reasonably apprehend from the circumstances which I have described above, that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided by it.
In the absence of the transcript, I cannot be satisfied that the Tribunal questioned the applicant in any manner which might have given rise to a relevant apprehension. In my opinion, the circumstance that it might during part of the hearing have misunderstood the applicant's references to the religion which attracted him, would not give rise to such an apprehension, particularly in circumstances where it seems that the Tribunal became aware of the mistake and then allowed the applicant further opportunity to put his case concerning his adherence to that religion.
In relation to the second issue, the amended application suggests:
9. For the best part of the hearing the Tribunal did not even know the applicant was speaking about the Christian religion. It was quite late in the hearing that the interpreter realised that the applicant was speaking of the Christian religion throughout the entire proceedings.
10. Upon this realisation the Tribunal should have reconvened the hearing to another date so that the evidence that had been presented to the Tribunal was not tainted and prejudicial to the applicant in any manner.
I do not accept the contention that the hearing was unfair due to the Tribunal's failure to adjourn the hearing or to take any measures other than those which it appears to have taken upon discovery of the interpreter's mistake. On the Tribunal's description of what happened, in my view, it was sufficiently able to correct the mistake after its discovery, and it then appears to have afforded the applicant a sufficient opportunity to further describe his claims based on attraction to Christianity. I do not consider that the mistake at all influenced the Tribunal’s ultimate decision-making.
The third issue can be considered in the light of authorities which require the Tribunal to afford a hearing which is “real and meaningful” and not “a hollow shell or an empty gesture” (c.f. NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]). It can then be considered whether the interpreter's mistake deprived the applicant of such an hearing. However, I am not persuaded on the evidence before me that this occurred. There is no evidence that, in fact, the interpreter's mistake arose from incompetence on the part of the interpreter, and not from obscure language used by the applicant himself. I consider that the latter explanation is more likely. Moreover, as I have indicated, I consider the applicant was given a sufficient opportunity to make his case after discovery of the mistake, and it did not ultimately influence the Tribunal’s decision.
The fourth issue raises whether the mistake gave rise to a failure by the Tribunal adequately to address all elements in the claims made by the applicant (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263). However, I am satisfied that this did not occur. The Tribunal's statement of reasons show that, by the time it reached its decision and wrote its reasons, it was under no mistake as to the religion that the applicant was referring to throughout his evidence at the hearing and to which he referred in his visa and review applications. I am satisfied that the Tribunal properly addressed all his evidence under no misapprehension as to its intended reference.
For the above reasons I do not consider that any of the contentions in the amended application seeking to draw from the error in translation at the start of the hearing are made out.

Other contentions in the amended application, in my opinion, do not have any substance. Contentions that the Tribunal did not look at the merits of the applicant's case have no support in the Tribunal's reasons. Other contentions merely challenge the factual assessments made by the Tribunal about the applicant's claims.
A contention that the Tribunal did not comply with provisions of the Migration Act, in my opinion, has not been made out.
A contention that the Tribunal failed to take into account "the independent information provided by the applicant" is incorrectly premised, since no such information was provided by the applicant.
A contention that the Tribunal failed "to independently investigate the applicant's evidence of fear that he would be persecuted" has no basis that I can understand.
For all the above reasons, I have not found the Tribunal's decision to be affected by jurisdictional error. The decision therefore is a “privative clause decision” within s.474 of the Migration Act, and I am obliged to dismiss the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 29 September 2005