SZIBW v Minister for Immigration
[2007] FMCA 1660
•19 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1660 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no error in not considering relocation in detail – applicant had no well-founded fear of persecution in his home locality so a need for relocation did not arise – s.424 does not require notification of factual conclusions or findings – no need for second Tribunal hearing if s.425 obligation satisfied at earlier Tribunal hearing – s.425 obligations do not apply to issues not determinative of the application – no need to ask “what if I am wrong” if Tribunal in no real doubt as to matters in respect of which it made findings. |
| Migration Act 1958, pt 7 div 4; ss.91X, 424A, 425,428 |
| SZBYR v Minister of Immigration & Citizenship [2007] HCA 26 Soltanyzand v Minister of Immigration and Multicultural Affairs [2001] FCA 1168 Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 Minister of Immigration v Rajalingam (1999) 93 FCR 220 |
| Applicant: | SZIBW & SZIBX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3517 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 July 2007 |
| Date of Last Submission: | 23 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Ms. L. Clegg |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3517 of 2007
| SZIBW & SZIBX |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 27 March 2007, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 16 October 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 16 September 2005 refusing the applicants’ application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicants. There was a previous Tribunal decision signed on 25 November 2005 which was quashed by order of this Court on 26 May 2006 (Court Book (“CB”) page 276).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicants’ names.
The second applicant is the wife of the first applicant and makes no claim independent of her husband who, in these reasons, will be referred to as the applicant.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a 43-year old married Hindu man from Saij-Mehsana in India’s Gujarat state. He does not have any children. He has had 8 years of education. His initial occupation was that of a plumber, but he later became a businessman. He speaks, reads and writes Gujarati, speaks and reads Hindi, and reads English. (CB 339)
The applicant claims to fear persecution in India because of his religious beliefs.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-17 of the Tribunal’s decision (CB 339-352). Relevantly, they are in summary:
a)in November 1997, the applicant commenced a retail/wholesale business in Ahmedabad. He was doing well in that business until the break-out of Hindu-Muslim riots in Gujarat in February 2002;
b)on the evening of 27 February 2002, riots broke out in the area of the applicant’s shop, after he had closed it. A curfew was imposed in the city, and it was not until 4 March 2002 that the applicant came to know that his shop had been set on fire. Not only was the shop burnt, but the applicant and his wife also began receiving threatening telephone calls “by unknown Muslim fundamentalists” threatening them with death;
c)the applicant could not get protection from the police even though the BJP was in power;
d)the applicant said that after the chaos was over he went to look at his shop and was caught and beaten so badly by the Dawood Ibrahim gang that he could not restart his business. He was told not to reopen his shop and to leave the area or he would be killed; and
e)the applicant said he could not relocate within India because everywhere there were problems between Hindus and Muslins and wherever he might go the Muslims would kill him. He said he did not want to go to another state because of the threats of the “Ibrahim people” and he “just got scared” and feared he would be killed wherever he went.
In response to a s.424A notice dated 27 July 2006, the applicant’s agent wrote to the Tribunal on 18 August 2006 stating, inter alia, that the answers given by the applicant at the hearing on 18 November 2005, before the Tribunal as originally constituted “was not an accurate reflection of what was actually interpreted” (CB 283). By that, the applicant’s agent meant to say that the translation did not accurately reflect what the applicant had said. In the attachment to that letter (CB 285-294), the applicant’s agent submitted that the interpreter at the original hearing “was conducting a hearing within a hearing” and “After asking a series of questions or seeking detailed explanations the interpreter would provide the Tribunal with a summarised version of what the applicant was trying to say”. (CB 292) The applicant’s agent requested another hearing by the Tribunal in light of the deficiencies he identified in the original Tribunal proceedings.
The Tribunal replied by its letter of 23 August 2006 (CB 295-296) providing a summary of the original hearing, as well as a summary of the country information set out in the decision of the Tribunal as first constituted, and invited the applicant to provide any further comments or information in response to that information. The Tribunal indicated that it did not, at that stage, consider it necessary to have a further hearing. The applicant’s agent replied by letter dated 7 September 2006 (CB 314 ff) submitting that the applicant lacked funds to transcribe the audio tape of the hearing. It should also be noted that the following paragraph appeared at the end of that letter:
“I [applicant] have had the above submissions interpreted to me in the Hindi language. I have understood the contents of the same and authorised Sashi Singh & Associates to lodge these submissions to the RRT”. (CB 318).
By letter dated 14 September 2006 the Tribunal responded saying that all that was necessary was for the applicant to identify any evidence which he gave and which he believed was not properly translated. The Tribunal also said it was not of the view, at that point, that it was necessary to have another hearing. The applicant’s agent replied on 27 September 2006 and identified some passages which he submitted were incompletely or inaccurately translated.
Having considered the applicant’s submissions seeking a further hearing the Tribunal decided not to hold such a hearing, noting it was satisfied that the difficulties of interpretation, which it recognised, were not so serious as to make the opportunity to give evidence at the hearing ineffective. The Tribunal was of the view that to the extent that there had been such difficulties they were overcome by the exchange of correspondence from July to September 2006 and the opportunity that the applicant had had to correct any errors or put further evidence before the Tribunal. (CB 352)
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted the applicant’s claim that his shop was set on fire during the Muslim-Hindu riots, that he was attacked and beaten up by Muslims, told not to re-open his shop and to leave the area. However, the Tribunal was not satisfied that the harm the applicant claimed to fear extended beyond the particular locality of his shop. The applicant had made no claim of having any particular profile other than as a Hindu proprietor of a shop in a Muslim area of Ahmedabad;
b)the Tribunal did not accept that there were further threats or assaults on the applicant after March 2002 as these had not been mentioned until September 2006. Further, the failure of the people who threatened the applicant in March 2002 to act on these threats in the three years between then and his departure from India in 2005 led the Tribunal to not accept that the applicant would be subject to further personal threats, much less actual violence, if he were to return to his home “now or in the reasonably foreseeable future”;
c)the Tribunal did not accept that, as a Hindu, the applicant would not have the protection of the authorities in his state should there be random instances of community violence in the future; and
d)although in light of the above findings it was not necessary for the Tribunal to consider the issue of relocation in detail it nevertheless found that the applicant could speak Hindi, contrary to his assertions to the contrary, and thus language problems would not prevent him from relocating in India.
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the Tribunal failed to consider the issue of relocation properly;
b)the Tribunal failed to review the adequacy and effectiveness of state protection in accordance of the Act;
c)the Tribunal breached s.424A by not giving the applicant an opportunity to respond to all adverse findings and inconsistencies;
d)the applicant was denied a fair hearing; and
e)the Tribunal misapplied the Rajalingam test.
Dealing with each of these grounds in turn:
The Tribunal failed to consider the issue of relocation properly
In his amended application the applicant submitted that, other than considering his ability to speak Hindi, the Tribunal failed to consider the reasonableness and practicality of the postulated relocation.
The Tribunal’s decision records that at the hearing before the Tribunal as originally constituted the question of relocation was discussed and the applicant objected to it on the basis that wherever he went he ran the risk of the persecution he feared in Gujarat.
The principal conclusion of the Tribunal in this application was that, in fact, the applicant did not have a well founded fear of such persecution, whether in Gujarat or elsewhere. As set out above at [12] the Tribunal did not accept that the applicant would be subject to personal threats or violence were he to return to his home “now or in the reasonably foreseeable future”. The Tribunal’s consideration of the relocation issue was not a comprehensive one, but as the Tribunal implied, this was because there really was no need to give it a detailed consideration given its finding on the principal issue. That is to say, as the applicant did not have a well founded fear of persecution in relation to a return to Gujarat, there was no need for him to consider relocating. The Tribunal simply made a comment, on the subject of relocation, that as he could speak the principal language of India, he would be able to relocate to other parts of India where Hindi is the main language.
The Tribunal’s decision was not based on its insubstantial investigation of the relocation issue. Consequently, the fact that it did not deal with the reasonableness and practicality of relocation does not have the consequence that its decision is affected by jurisdictional error.
The Tribunal failed to review the adequacy and effectiveness of state protection in accordance of the Act
The applicant bases this asserted ground of review on the inadequacies of the translation services provided at the Tribunal hearing on 18 November 2005 and the thrust of the following passage appearing at page 9 of the Tribunal’s decision, paraphrasing an exchange which happened at the 18 November 2005 hearing:
The Member said that the notion of adequate state protection does not require that the state must be able to guarantee the safety of the person or that the person will be immune from harm; rather the question is whether there is a reasonable willingness on the part of law enforcement agencies and courts to detect, prosecute and punish offenders. The applicant’s response was (verbatim), “OK it’s true that there is protection there, but the thing is, like, just in the fear of they’ll kill me, - the Dawood Ibrahim people – I had to move out of the country”. (CB 344)
In his letter dated 27 September 2006, the applicant’s agent addressed this part of the Tribunal hearing and stated that the quotation which appears below is an accurate representation of what was said by the Tribunal, the interpreter and the applicant at the hearing, noting that the translations provided by the interpreter did not reflect what the principal interlocutors were saying:
On a closer examination of the hearing tape, this is what is revealed:
T= Tribunal, I= Interpreter, A= Applicant
T: The notion of adequate state protection does not require that the state must be able to guarantee the safety of the person or that the person will be immune from harm; rather the question is whether there is a reasonable willingness on the part of the law enforcement agencies and courts to detect, prosecute and punish offenders.
I: Tribunal is saying that on protection visas it’s written they “olu” for one person. He (Tribunal) is only explaining that all this is in India, explaining that to all people that government gives protection to everyone, can or cannot provide protection to one person. Can also happened that some other person can come and hit (could mean assault or kill) as well.
A: These people are Dawood Ibrahim’s gang members, wherever I go, who knows when these people can attack/assault me. There is no law, order, Supreme Court, government, all is there but the problem is that if I am not careful, or if I make mistake and am not mindful than I am gone. I panicked all these people were threatening me over the phone, I could not do anything.
Please note: this is what the applicant said as stated above. Now observe what the interpreter said to the Tribunal.
I: “OK! Its true that there is protection there but the thing is, like, just in the fear of they’ll kill me – the Dawood Ibrahim people – I had to move out of the country”. (CB 327 – 328).
It may be the case that the Tribunal as originally constituted would have misunderstood the meaning of what the applicant had attempted to communicate in his response at the hearing in November 2005. However, the Tribunal as reconstituted had the advantage not only of the original sound recording but also the more correct translation which was provided to it by the applicant’s agent in the letter containing the quotation set out at [20] above. For this reason, there is no adequate factual basis for this asserted ground of review.
Further, the only part of the Tribunal’s findings and reasons which touch on the question of state protection follows the conclusion that the applicant would not be subject to personal threats or violence were he to return home and is expressed in the follow terms:
The applicant is a Hindu, living in a state which is 90% Hindu. The country information discussed with the applicant indicates that, if the government of his state is prone to ignore religious violence, it is violence committed by Hindus against Muslims, and not vice versa. (See for example Human Rights Watch, 2003, Humans Right Watch World Report 2003, January). In these circumstances, the Tribunal, while noting his claim that the Government is unwilling to protect Hindus, does not accept that, as a Hindu, he would not have the protection of the authorities in his state should there be random instances of community violence in the future. (CB 354)
Seen in its proper context, the Tribunal’s reference to state protection neither relies on the applicant’s evidence on the subject nor forms the basis of a finding that persecution which the applicant allegedly fears is not well-founded because of the adequacy of state protection available to him. Consequently, jurisdictional error is not demonstrated in respect of this asserted ground of review.
The Tribunal breached s.424A by not giving the applicant an opportunity to respond to all adverse findings and inconsistencies
The applicant asserts that he was entitled pursuant s.424A of the Act to have an opportunity to respond to adverse findings and inconsistencies and also to receive written notice of particulars of all information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. These propositions misstate the Tribunal’s obligations under s.424A which provided at the time:
(1)Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) …..
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application …
What the section requires the Tribunal to provide to the applicant is “information”. Findings and conclusions as to inconsistencies do not amount “information” as that term is understood by the section. This was made clear in SZBYR v Minister of Immigration and Citizenship [2007] HCA 26 per Gleeson CJ, Gummow, Callinan, Hayne, Heydon and Crennan JJ at [18].
Further, the section does not require the Tribunal to put the applicant on notice of “all” information it considers the reason or part of the reason for affirming the delegate’s decision. Section 424A(3) contains exceptions to this obligation in respect of information of a general nature, such as country information, and information which is given to the Tribunal by the applicant for the purposes for the application. But in any event, whatever obligations the Tribunal had pursuant to s.424A(1) it discharged by its letters to the applicant dated 27 July 2006 (CB 281-282), 23 August 2006 (CB 295-313) and 14 September 2006 (CB 320-321). The applicant was given a comprehensive notification of matters falling within s.424A(1) and, through his agent, made comments in response to the letters from the Tribunal.
Indeed, the information specifically referred to by the applicant in the particulars to this asserted ground of appeal is that which is found at pages 11 and 12 of the Tribunal’s decision and relates to the Tribunal’s letter of 27 July 2006 and the response from the applicant’s agent dated 18 August 2006. This is a clear example of the Tribunal’s compliance with the requirement of the section and is not, as the applicant asserts, indicative of a breach of a section.
For these reasons, no jurisdictional error is demonstrated on the basis of the asserted breach of s.424A.
The applicant was denied a fair hearing
The thrust of the applicant’s submission in relation to this asserted ground was that the Tribunal should have given the applicant a second opportunity to appear before it and that its failure to do so amounts to jurisdictional error.
It is not apparent why the original decision of the Tribunal was quashed as the orders signed by the parties do not identify the reason why the parties agreed the decision had to be set aside (CB 276-277). The applicant’s affidavit sworn 27 March 2007 annexes a transcript of the Tribunal hearing of 8 November 2005. That transcript does not evidence any unfairness on the part of the Tribunal or any other conduct, other than issues potentially related to the interpreter services, which indicate that the applicant was denied his s.425 entitlement to a real and meaningful invitation to a hearing.
At the outset it should be observed that no expert evidence was led to substantiate the applicant’s allegations that the translations provided at the Tribunal hearing in November 2005 were inadequate. The only evidence on this subject is contained in the letters received by the Tribunal from the applicant’s agent to which reference has already been made. The transcript of the Tribunal hearing annexed to the applicant’s affidavit sworn 27 March 2007 does not elucidate the issue and the Tribunal’s decision indicates an acceptance that although there were deficiencies in the translations it concluded they were not of such a nature as to vitiate the hearing. The Tribunal reached this conclusion after having set out in some detail and giving explicit consideration to the arguments advanced by the applicant’s agent on the subject of the interpreter services at the Tribunal hearing. On this issue, the Tribunal said:
The Tribunal has given the applicant ample opportunity to correct any errors in relation to the presentation of his evidence. While he has given examples of where things were not interpreted word-for-word, he has given no example of any evidence regarding his personal circumstances which has not been understood by the Tribunal, and no example of any material fact which was ignored. The Tribunal has put other questions to the applicant in writing and has had his response.
In all the circumstances, the Tribunal is satisfied that the difficulties of interpretation were not so serious as to make the opportunity to give evidence at the hearing ineffective. To the extent that there were any such difficulties, the Tribunal considers they have been overcome by the exchange of correspondence from July to September 2006, and the opportunity the applicant has had to correct any errors or place further evidence before the Tribunal. (CB 352).
In the absence of expert evidence, and given the contents of the correspondence between the Tribunal and the applicant’s agent on the question of translation services, and in light of the Tribunal’s conclusions based on that correspondence and its own study of the audiotapes of the Tribunal hearing, I am not of the view, on the balance of probabilities, that such translation deficiencies as may have existed led to a miscarriage in the decision making process: Soltanyzand v Minister of Immigration and Multicultural Affairs [2001] FCA 1168. Indeed, there are many parts of the transcript which appear to be completely unexceptionable. But in any event, to the extent that the applicant asserted that the translations were exceptionable, the only evidence on this subject is evidence which was before the Tribunal and which the applicant had addressed in submissions to the Tribunal. Consequently, there is no basis to conclude that the Tribunal as constituted on the second occasion did not have a proper understanding of the evidence which the applicant gave, with the result of no breach of s.425 is demonstrated.
Moreover, the transcription errors identified in the 27 September 2006 letter from the agent to the Tribunal did not relate to passages of the evidence upon which the Tribunal relied in reaching its decision. As the Tribunal did not base its decision on those facts, jurisdictional error is not demonstrated in respect of those identified passages: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [35] per Mansfield and Selway JJ.
In relation to whether there was jurisdictional error in connection with the Tribunal’s approach to the issue of whether to conduct a further hearing the first respondent submitted that the Court would need to conclude that:
a)a jurisdictional error occurred due to the defect in the interpretation at the first hearing; and
b)the Tribunal as constituted on the remittal committed a jurisdictional error in its consideration of whether it was necessary to conduct a further hearing.
The first of these issues is determined by my findings set out above. The second proposition turns on whether the Tribunal was obliged to hold a second hearing. As s.422B of the Act provides that div.4 of pt.7 of the Act exhaustively states the requirements of the natural justice hearing rule in relation to the matters with which it deals, reference must be had to that division, which contains ss.422B to 429A, to determine whether there was any obligation on the Tribunal to have a second hearing. Of the provisions contained in that division, only s.425 contains a requirement that, in certain circumstances, the Tribunal must invite the applicant to appear before it. Those circumstances are found in s.425(1):
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
If evidence has already been given by the applicant relating to the issues arising in relation to the decision under review during the course of the first Tribunal hearing, the Tribunal is not required to have a second hearing to receive further evidence: s.428(5); Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541. That is the case here. The issues in respect of which the applicant sought a further hearing were issues which had been canvassed before the Tribunal as originally constituted. The basis of the request was the assertion that the translations provided at that hearing had been deficient. However, the only matter in respect of which evidence was put before the Tribunal, and which is also the only evidentiary matter which is before this Court in any way supportive of the applicant’s concerns, is what is contained in the letter from the applicant’s agent to the Tribunal dated 27 September 2006 (CB 324 – 332). This includes the passage quoted above at [20].
But none of the issues which were canvassed in those parts of the hearing from which the transcribed and interpreted passage came was decisive of the review application. As they were not determinative of the application, no s.425 obligation arose in respect of them: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
For these reasons the Tribunal was under no obligation to hold a second hearing and no jurisdictional error is demonstrated because it did not.
Rajalingam test
The applicant submits that the Tribunal erred in its assessment of incidents which could have occurred but which had not been proved by the applicant to have occurred. The Minister submitted that Minister of Immigration v Rajalingam (1999) 93 FCR 220 stands for the proposition there are cases where the decision-maker may be required to take account of the chance that past events may have occurred, even though the decision-maker thinks they probably did not. Sackville J said in Rajalingam at 238 [55] and [56]:
… if the RRT finds that is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining there was a well founded fear of persecution ….
If, on the other hand, it appears that the RRT had no “real doubts” that its findings were correct, it was not bound to consider whether those findings might be wrong
and at 240 [62] and [63]:
When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate questions …
Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
The applicant has not particularised which incidents or claims were rejected without considering their likelihood but a consideration of the Tribunal’s finding shows that it was in no real doubt as to the matters in respect of which it did make findings. That being so, it had no reason to consider whether its findings might be wrong and no jurisdictional error is demonstrated because it did not do so.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 19 October 2007
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