SZEYY v Minister for Immigration - [2005] FMCA 1962

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYY v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1962

MIGRATION – RRT decision – Georgian applicant claimed persecution for political activities – Tribunal found fears no longer well-founded due to change in government – no error by Tribunal – inability of Court to provide Georgian interpreter – judgment not delayed.

Migration Act 1958 (Cth), ss.474(1), 483A
Acts Interpretation Act 1901 (Cth), s.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Judiciary Act 1903 (Cth), s.39B

Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration v Rajalingam (1999) 93 FCR 220
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Win v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212

Applicant:

SZEYY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2329 of 2004

Judgment of:

Smith FM

Hearing date:

14 December 2005

Delivered at:

Sydney

Delivered on:

14 December 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms Wong

Solicitors for the Respondents:

Clayton Utz

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 $5,000.
This order shall not take effect until 18 March 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2329 of 2004

SZEYY

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 filed on 23 July 2004 under s.483A of the Migration Act 1958 (Cth) which seeks orders by way of judicial review of a decision of the Refuge Review Tribunal dated 8 June 2004 and handed down on 30 June 2004. The Tribunal affirmed a decision of a delegate, which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth). However, that repeal does not affect the continuation of the present proceedings (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's jurisdiction under s 483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitation under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and sent the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant's claim has a long history. He arrived in Australia in April 1999 and lodged a protection visa application on 27 May 1999. His application was refused by a delegate on 18 August 1999 and the applicant lodged an application for review on 2 September 1999. Since at least June 2000 the applicant has had the assistance of a series of competent migration agents and immigration solicitors.
A decision by the Tribunal was handed down on 13 August 2002 but was subsequently set aside by an order made by consent in this Court on 16 February 2004. The Tribunal was then reconstituted, and arrived at its present decision, as I have indicated, in June 2004.
The applicant is a national of Georgia, who was born in July 1971. His claims in support of his protection visa application relied on a history of involvement in demonstrations and other activities as a supporter of a political movement headed by Zviad Gamsakhurdia, who was elected President of Georgia after it obtained its independence from the USSR.
The applicant claimed to have suffered following the takeover of government by Mr Shevardnadze in 1992. For reasons which will appear, it is unnecessary for me to detail the applicant's claims to have suffered persecution at the hands of agencies of that Government and its supporters. This included claimed periods of detention and torture on three occasions; the longest being for a period of about a year between 1995 and 1996. A subsequent period of detention was claimed to have occurred between January of 1997 and August 1997. The applicant claimed that he was then in hiding and the subject of summonses by the police until he obtained his passport and a visa to come to Australia in the middle of 1999.
The applicant's claims in this respect were elaborated in a typed English statement attached to its original visa application, and in an interview conducted by a department officer on 18 June 1999 using a Georgian interpreter obtained on the telephone. After the applicant appealed, his claims were repeated in a statement written in Russian and translated into English. The Russian statement is signed by the applicant and dated 20 June 2000. It was obtained by registered migration agents who, in their supporting submission, said:
The interview process was problematic as our client has limited knowledge of the English language, and, as we later found, there is little availability of qualified Georgian translators and interpreters. We were able to communicate with our client in Russian.
As I shall indicate below, the difficulty of finding qualified Georgian translators also faced the Court.
The applicant's agent submitted to the Tribunal in 1999 what were claimed to be two summonses by police for the attendance of the applicant in 1998. They also submitted what was claimed to be a ‘wanted person’ advertisement which appears to be torn from a newspaper. This shows a photograph of the applicant and states that he “is wanted by the Georgian Interior Ministry for reasons of political nature”. A fourth piece of documentary corroboration was submitted by the applicant's agents in 2001, which they described as “a notice in a newspaper sent to our client by his mother in Georgia”. This appears to be a corner cut from a printed page, which states “The police arrested (the applicant) yesterday for his political activities, exactly for distribution of political leaflets”.
The Tribunal, as first constituted, held a hearing on 1 August 2000 at which the applicant attended. The Tribunal said: “the hearing was conducted and interpreted in Georgian”. Submissions were made after the hearing by the applicant's agent. There is no evidence that any complaint was made at that time about the quality of the interpretation.
The Tribunal as constituted for the re-hearing gave notice to the applicant, through his solicitor, that it proposed to have regard to the oral evidence given at the first hearing, and which had been summarised by the first Tribunal. The applicant's solicitors complained about the shortness of time given for submissions, and the Tribunal subsequently extended that time by a reasonable period.
The Tribunal then held a hearing by way of video link between Sydney and Melbourne, the applicant being in Melbourne. On the evidence, it appears likely that the applicant was accompanied by his solicitor. The file shows that the solicitor requested a copy of the tapes, and it is reasonable to assume that these were provided. There is no evidence that they made any complaint about the quality of the interpretation which was provided in the course of that hearing, which the Tribunal said was “conducted with the assistance of a Georgian interpreter”.
No transcript of either of these hearings has been put into evidence before me, and no evidence has been led by the applicant allowing me to form a conclusion that the quality of the interpretation at either hearing was inadequate in any respect, so as to provide ground of jurisdictional error. The applicant today asserted strongly that the interpretation on both occasions was inadequate, but I am not satisfied on his assertion alone.
The applicant has been on notice since at least 26 October 2004 that the Court would expect evidence of such assertions to be supported by affidavit evidence including evidence of the hearings by way of a transcript. A direction was made on that day to that effect by the Registrar at the first Court date. The applicant attended that listing in person at the court in Sydney, and the listing report notes that he was “accompanied by Georgian interpreter (friend)”.
In its statement of reasons handed down on 30 June 2004, the Tribunal extensively reports the history of the matter, the applicant's claims, and the political history of Georgia since the late 1980s.
Under the heading "Findings and Reasons" the Tribunal said that it accepted that the applicant may have participated in political rallies in Georgia but found that “the applicant was not a high profile political activist in the 1990s”. It explained how it arrived at this finding:
While it accepts that the applicant may have participated in political rallies in Georgia, the Tribunal has difficulty in accepting that he ever had a significant profile in Georgia because of any political activities on his part. He claimed to have been an active supporter of Zviad Gamsakhurdia, but he has only a superficial knowledge of the significant political events relating to the rise and fall of Zviad Gamsakhurdia which took place in the years 1989-1991. Had he the level of involvement he claimed, the Tribunal would have expected him to have a far more detailed knowledge, even allowing for the passage of time. In this regard, his original statement and his earlier interviews, indicated that his knowledge was similarly lacking in 1999 and 2000. The Tribunal finds that the applicant was not a high profile political activist in the 1990s.
The Tribunal then referred to the four documents which had been presented by the applicant as corroboration of his persecution by the Shevarnadze government. It pointed to difficulties which are apparent on the face of these documents. In relation to the two summonses, it referred to advice from the Department obtained after enquiries in Georgia that the investigators named on the alleged summonses were not people who had ever worked in the positions referred to in the summonses. I do not consider the Tribunal's discussion of those documents reveals any legal error on its part, and it was open to it to decide to give them little weight. I am not satisfied that any failure of procedure occurred in relation to its findings concerning them.
Moreover, in my opinion, it is not material whether the Tribunal made any error whether of fact or jurisdiction in its assessment of the history of persecution claimed by the applicant. This is because that assessment did not form part of its essential reason for affirming the delegate's decision. This appears in the following two paragraphs:
On the basis of the evidence before it, the Tribunal is not convinced that the applicant was wanted by the Georgian authorities at the time he left Georgia. However, for the reasons which follow, it is not necessary to make a definitive finding on the point. Nor is it necessary to make a finding on whether or not he was ever arrested or assaulted. Whatever may have been the attitude of the Shevardnadze regime to Zviadists in general and the applicant in particular, that regime is no longer in power.
Although the new regime has only been in power for a few months, the independent evidence above indicate that it has made a fundamental break with the past regime’s antipathy towards Zviadists. The Tribunal accepts that evidence. The Tribunal does not accept the applicant’s suggestion that the new Government is only pretending to accept Zviadists. The Tribunal considers that the range of activities identified above demonstrates a clear intention to accept Zviadists and to revere the memory of Zviad Gamsakhurdia. These activities include an amnesty to armed Zviadists and the release of political prisoners, including those with a high profile; the return of Gamsakhurdia’s body to Georgia and the naming of a street in his honour, and the appointment of one of his Ministers to head a reconciliation commission. The Tribunal finds that the new Government has demonstrated its intention to end any official targeting of Zviadists because of their political opinions. Given that amnesties are being extended even to high profile Zviadists who were arrested by the former regime, the Tribunal finds that low-profile Zviadists are no longer at risk of persecution. It has found above that the applicant was never a high-profile political activist in the Zviadist cause. Therefore, the Tribunal finds that even if the applicant had been the subject of arrest warrant or summonses in the past, the applicant would no longer face arrest on the basis of those old warrants or prior arrests.
The applicant has said that he cannot be sure that the new Government will turn out to be any better than the old one, but he has failed to indicate any reason, let alone a Convention reason, why the new regime might wish to harm him. The Tribunal is not satisfied on the evidence before it that the applicant will be targeted for acts of harm for a Convention reason were he to return to Georgia now or in the foreseeable future.
The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution in Georgia.
In short, the Tribunal concluded that the situation in Georgia had been reversed, with the overthrow of the Shevardnadze government and the election of a government sympathetic to all supporters of Gamsakhurdia.
The applicant's contentions in this Court are found in a written submission filed with his original application in July 2004, a written submission in English which he filed in Court today, and his oral submissions to the court. Although the applicant attended the hearing unaccompanied, it is apparent that he received assistance in the preparation of his written submissions.
In his original written submission, I can identify four contentions. The first is that the Tribunal made an error of law in relation to its finding based on the effect of the change of government in 2004. It is argued:
In my opinion the applicant does not have to show the reasons why the new government might wish to harm him. The applicant is entitled to protection by Australia even if Georgian government - even though it does not persecute the applicant is unwilling to afford protection from the persecution of political grounds by some activist groups in the society.
However, in my opinion, the Tribunal made no error coming within this contention. The Tribunal was not obliged to address a claim that the applicant would be persecuted on political grounds “by some activists groups in the society” if he returned to Georgia since, on my reading of the material, no such claim was made to the Tribunal. It certainly was not made “tolerably clearly” (c.f. Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], discussing NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1).
The Tribunal recorded discussing in its hearing the effect of the regime change, and asking the applicant whom he now feared in Georgia. It records his response, inter alia, as follows:
The Tribunal asked him who he feared in Georgia today, and why. The applicant answered rhetorically how one could say whether the new government would be any better than the old one, after only a few months. He certainly would not say whether the old or the new government was better. He feared the new government as much as the old. It could not be guaranteed that he would be safe. The Tribunal said that no government can give an absolute guarantee that a citizen would be safe, but the issue for the Tribunal was whether or not the applicant had reasons to fear persecution for a Convention reason, specifically that of “political opinion”. He said one could not draw a parallel between Georgia and Australia, because governments in Australia follow procedures. The simple fact was he feared to return to Georgia.
On the evidence before me, the applicant pointed only to his concerns about persecution by the new government. As I have indicated above, the Tribunal has not accepted that concern as well-founded. In my opinion, the Tribunal was not obliged to address the question of protection by the State against persecution by unidentified non-State agents.
The second contention made in the first written submission was that:
The RRT misread the law stating that only a high -profile political activist can be targeted for persecution by the State and thus I would not be under threat because I was a low-profile political activist. The RRT decision with this respect is legally incorrect. The target persecution can be high profile political activist as well as a low profile political activist. The RRT has to consider the relevant material in order to decide the threat of persecution and it is wrong to make finding whether or not the person will be persecuted for political reasons mainly on the ground that a person is not politically literate enough to be a target of persecution.
However this contention misreads the reasoning of the Tribunal. It did not decide against the applicant on the basis that low profile political activists could not suffer persecution within the Convention definition. It decided against the applicant because it thought that political activists, whether high profile or low profile, who had supported Zviad Gamsakhurdia would not be persecuted by the current regime in Georgia. In my opinion, it made no jurisdictional error when reaching this conclusion.
The third contention in the first written submission was that:
The finding of the Refuge Review Tribunal was based on insufficient material concerning the current situation in Georgia.
However this has not been elaborated in any further submissions. In my opinion, it was open to the Tribunal to rely on the researches identified by it, and which informed its opinions about the new government. The applicant was well represented before the Tribunal and was fully capable of presenting further material addressing the current situation in Georgia. The Tribunal was not obliged to conduct further investigations (see Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 at [18], Win v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 at [15], Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
The fourth contention in the first written submission contends that the Tribunal failed to “assess the claim on the basis that the claim might be true”, and refers to Minister for Immigration v Rajalingam (1999) 93 FCR 220.
However, in my opinion, this contention is misconceived in the present context, since the Tribunal's reasoning assumed or did not make a definite finding rejecting the applicant's claimed history of political activism and persecution.
For the same reason, further criticisms made of the Tribunal’s reasoning in that submission and in the written submission which was presented at today's hearing cannot provide grounds of jurisdictional error upon which I can set aside the Tribunal's decision. Those submissions criticised findings by the first Tribunal and the second Tribunal which doubted the genuineness of the corroborative documents put forward by the applicant. They argued against its failure to be satisfied as to his claimed history of persecution. However, as I have indicated above, the decision of the second Tribunal, which I am reviewing, essentially was based upon an assumption that his claims might have been true, and was based on the situation of the applicant if he returned to Georgia under a new government.

At today’s hearing, although the applicant also made points covered by his written submissions which I have addressed above, his oral submissions were dominated by his complaint that the Court had not been able to provide a Georgian interpreter. I have given anxious consideration to this concern.
The Court's difficulty in obtaining a Georgian interpreter was clearly notified to the applicant in an order which I made on 6 October 2005. That was the date on which the matter had been set down for hearing by the Registrar in October 2004. The applicant did not attend on that day, but sent to the Court through his migration agent a request for an adjournment based on his undergoing investigations in relation to a possible cardiac problem. I discovered on that day that the Court was unable itself to obtain a Georgian interpreter and had no prospect of obtaining one for an adjourned hearing date at any time. I then adjourned the matter for hearing today, made the following order, and directed that it be served on the applicant:
The applicant must notify the court before 31 October 2005 whether he will need an interpreter’s assistance at the hearing, and the languages which he speaks. If he speaks only Georgian and not Russian, then he must provide his own interpreter since the Court is unable to do so. No further adjournment will be allowed due to the unavailability of a Georgian interpreter.
The applicant did not respond to this order, and attended without bringing his own interpreter. The Court was once again unable to find a Georgian interpreter, and I am advised by the relevant officers of the Court that there is no prospect of them obtaining one. The Court did provide a qualified Russian interpreter, in whom it has a great deal of confidence. She informed me that she had difficulties communicating with the applicant in Russian to the extent only that in relation to some words she found she had to translate “in a round-about way”.
Generally, the applicant was able to address the Court through this interpreter, but there was at least one point in his submissions where he claimed to have become inarticulate in Russian. At other times he spoke to me directly in English, a language which it seems he has been using in everyday life for the last six years. I formed the view that the applicant’s complaints about his ability to communicate to the Court were somewhat exaggerated, and I was not satisfied that he was insufficiently able to address the Court, particularly given his presentation of carefully prepared written submissions in English.
Notwithstanding his complaints, the hearing proceeded all afternoon and I gave him every opportunity to explain all the points he wished to make to me as best as he could in English or through the Russian interpreter. I also offered the applicant the opportunity to adjourn for one or two weeks to allow him to bring his own interpreter. He declined that offer, and gave a reason that he could not trust anyone who spoke Georgian.
I accept that it would have been desirable for the applicant to have been able to address the court with the assistance of an interpreter in his native language. However, balancing all the circumstances, I concluded that it was the duty of the Court to proceed with the hearing and reach a conclusion in the matter. As with all unrepresented persons who cannot be expected to be conversant with issues of jurisdictional error, I have endeavoured to consider the material to identify any arguments which might have been available to him. I have also fully considered his written submissions. I do not consider that the lack of an interpreter in the applicant’s favoured language has materially prejudiced my ability to examine whether the Tribunal’s decision was affected by jurisdictional error.
For the reasons given above, my examination of the material did not identify any jurisdictional error affecting the Tribunal decision. It is therefore a privative clause decision for which relief is barred by s.474(1) of the Migration Act.
Taking into account the forthcoming Christmas vacation and the applicant's dissatisfaction with the interpreter who has endeavoured to translate my judgment to the applicant, I propose to suspend the effect of my orders to allow the applicant ample opportunity to take advice after these reasons are revised and posted to him.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 12 January 2006