SZIFY v Minister for Immigration
[2006] FMCA 1700
•9 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1700 |
| MIGRATION – Protection visa – whether jurisdictional error – mother and child applicants – no separate sur place claim of child – whether jurisdictional error – whether appropriate to allow reference to additional document not provided to Tribunal – whether required to obtain translation of document of similar content to the translated documents – whether Tribunal required to hold combined hearing of husband and wife applications. |
| First Applicant: | SZIFY |
| Second Applicant: | SZIFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 324 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 9 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2006 |
REPRESENTATION
| Applicants: | In Person |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $4,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 324 of 2006
| SZIFY |
First Applicant
| SZIFZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Applicants seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 1 December 2005. In its decision the Tribunal affirmed the decision of a delegate of the First Respondent not to grant to the Applicants protection visas.
The application filed in this court by the Applicants appears to have been filed on 1 February 2006. The First Applicant is the mother of the Second Applicant who had been born on 4 September 1998. The First Applicant appears self-represented though with the assistance of an interpreter.
When the matter commenced this day the First Applicant sought and was granted permission to rely upon an Amended Application dated 8 November 2006. It will be evident from the reasons that I am about to provide that the Amended Application bears little or no resemblance to the original application which had been filed on 1 February 2006.
It is also evident that at least a significant part of the First Respondent’s Outline of Submissions seeks to address grounds which had otherwise been relied upon by the Applicants in the original application.
The First Respondent, however, has not opposed the Applicants relying upon the Amended Application and has otherwise made submissions in relation to the grounds set out in that Amended Application. In the circumstances that constitutes a significant concession which in this instance I regard as having been reasonably made.
The background in this application is not particularly complicated.
The Applicants, as recorded in the First Respondent’s submissions, are citizens of Indonesia. The first-named Applicant arrived in Australia on 19 June 1998. As noted earlier, the Second Applicant is the First Applicant’s son. He was born in Australia on 4 September 1998, that is, just a few months after the arrival of his mother. It was not until
12 April 2005 that the application for a protection visa was lodged. The delegate of the First Respondent refused the grant to the Applicants of protection visas. Following that refusal the Applicants then on 26 August 2005 applied to the Refugee Review Tribunal for review of the delegate’s decision.
The first-named Applicant is the only one to make specific claims to be a refugee within the meaning of the Convention and hence it is the First Applicant to whom reference will be made. It is noted that the Second Applicant makes application as a family member and does not appear to raise any separate or discrete claims including any sur place claims which may specifically relate only to the Second Applicant. It is appropriate therefore in considering judicial review of the Tribunal decision that essentially the court notes the grounds relied upon appear to be those of the First Applicant, albeit, as will be evident, that the First Applicant’s husband otherwise supported the application.
It is perhaps relevant to note that at the time when the Applicants before this court made application for protection visas, that is, on
12 April 2005, the application itself appears to refer to the First Applicant’s husband who, is also Indonesian and where the First Applicant is asked to provide a “Reason for not including in this application” (the husband) the words appear, “departing for Indonesia;” (Court Book p.3).
The First Applicant was invited to attend a hearing which was to be conducted by the Tribunal on 21 October 2005. The First Applicant and her husband attended that hearing and gave evidence in support of the application. The basis upon which the protection visa application was made appears to be a fear of persecution by the First Applicant as a result of her services to the previous Suharto government and in particular employment by the governor of West Timor as well as by reason of her religion, namely Christianity. In its decision which the Tribunal handed down on 22 December 2005, under the heading “Claims and Evidence” the Tribunal refers to the primary application of the First Applicant and specifically states as follows:
“According to her protection visa application, the Applicant is a female aged 39 born in Kupang, Indonesia. She states her ethnic group is Indonesian and her religion as Christian. She speaks, reads and writes Indonesian (no other language is indicated). The Applicant lived at one address in Kupang for at least the period from 1994 until 1998. She completed 22 years of education in Kupang, graduating with law qualifications (criminal law) in 1994. She states that from 1994 until 1998, she worked with the Indonesian Government as a lawyer.
The Applicant married in December 1994. The Applicant’s husband is not included in her application, the stated reason being that he is returning to Indonesia.”
The husband of the First Applicant made a separate protection visa application which has been dealt with in another Tribunal decision. The Tribunal after referring to that matter then specifically refers to the First Applicant’s seven-year-old son who is the Second Applicant before this court. In its decision the Tribunal goes on to state the following:
“The Applicant travelled to Australia in 1998, on a passport issued in 1997 and valid for five years. She states that she had never previously travelled outside her home country. She entered Australia on a student visa. Her current travel document is an Indonesian passport issued by the Indonesian Consulate in Sydney in April 2005 valid for one year.”
The Tribunal then deals in some detail with the claims made by the First Applicant in answer to specific questions in the claim form.
The application before that Tribunal, it is stated and is readily apparent from the Court Book, does not appear to contain any new information or claims. As indicated earlier, the First Applicant and her husband attended the hearing conducted by the Tribunal on 21 October 2005.
It is significant to note that in its reasons the Tribunal then sets out the following;
“The Tribunal invited the Applicant to summarise her fears of returning to Indonesia. The Applicant said that she feared “jihads” Muslim extremists. She nominated two reasons why they would wish to harm her; namely (a) as a Christian, and (b) because of her and her husband’s support for East Timorese independence.”
(Court Book p.105)
The Tribunal provides further details concerning those claimed fears. The Tribunal sets out relevant background concerning the First Applicant’s family and the assertion that the family is Christian.
It otherwise sets out the other religions in the Kupang district. In its reasons the Tribunal analyses under separate headings the issues raised by the First Applicant including religion, political opinion, East Timor independence and other issues raised by the First Applicant in support of the application. It also deals with evidence given by the First Applicant’s husband.
For present purposes having regard to the Amended Application to which I shall refer presently it is significant to note that the Tribunal refers to certain documents sought to be relied upon by the First Applicant. Relevantly it states the following:
“The Applicant handed over recent correspondence from Indonesia. Most was in Indonesian untranslated, but a letter from Ms B dated 26 May 2006 (Kupang) refers in general terms to a dangerous conflict between pro- and anti-independence militias, without mentioning any specific threats to the Applicants. The Tribunal undertook to consider this, but flagged that it may not be able to accord weight to such letters from friends who, writing a month after lodgment of a protection visa application, have an obvious interest in supporting the application.”
(Court Book p.107)
Further in the Tribunal’s decision when dealing with its findings the Tribunal again refers to the documents in the following manner:
“The Tribunal has also considered the documents submitted to it, in particular the translated letter from B, a relative of the Applicant. Other documents were submitted in Indonesian only. These appear to be correspondence from family members. Although provided an opportunity to do so, the Applicant did not suggest that these documents contained any different or significant additional information beyond the evidence which she had already provided concerning her concerns about West Timor’s security, political and economic problems. On this basis, the Tribunal has decided not to have them translated.”
(Court Book p.116)
In its decision the Tribunal made significant adverse findings including that the First Applicant did not have a subjective fear of persecution and that the First Applicant’s claims regarding the risk of harm for Christians in Indonesia was speculative and contrived. There was no support, it found, in either the country information or the First Applicant’s family’s own direct experiences to support the claim of a well-founded fear on the basis of her religion. The Tribunal further found that the mere fact of having been a public sector employee for the Suharto government did not itself put a person at risk of persecution. The Tribunal found the First Applicant did not have a well-founded fear of persecution owing to her past work for the governor of West Timor. It referred specifically to the incidents upon which the First Applicant relied and concluded that they did not amount to serious harm within the meaning of the Migration Act 1958 (the Migration Act) and were not for an essential or significant reason of any Convention ground and did not establish after the First Applicant’s long absence from Indonesia a real chance of any prospective harm.
The Tribunal further found that the First Applicant did not have a well‑founded fear of persecution by reason of her actual or imputed political opinion in support of East Timorese independence. It found there was no independent information indicating that that would be the case and that there was a significant delay between the First Applicant’s arrival in Australia and her application for a protection visa. The Tribunal noted the First Applicant had not articulated those fears in any other context and that the particular claim concerning East Timor had not been raised until the Tribunal hearing which, as I indicated earlier in this judgment, occurred on 21 October 2005.
In the Amended Application the Applicants set out the following grounds for review:
“1.The Tribunal denied the procedural of fairness and, in doing so, made a jurisdictional error.
2.The Tribunal erred in law by not relying and understanding the provided documents by the Applicant rather than relying on country information which is not applied to the region the Applicant come from.
3The Tribunal did not implement the agreement on unifying my application and my husband’s which was initiated by the Tribunal.”
I have set out the grounds verbatim and it is obvious there are some errors in those grounds, but essentially they raise questions of a denial of procedural fairness and a failure to rely upon and/or understand documents provided by the Applicant rather than relying upon country information which the Applicant, I infer, claims is irrelevant given that information did not apply to the Applicant’s region; and further, a complaint is made that apparently there was an agreement, of which there is, I should note, no evidence, but in any event an agreement whereby the Applicant’s application would be combined with the application of her husband referred to earlier in this judgment.
Subjoined to those grounds is a list of particulars numbered 1 to 5 as follows:
“1. The Tribunal refused a document presented by the Applicant with the reason that the document is not in English. The letter, which is less than one A4 page content, could have been translated by the interpreter attending the hearing if the Tribunal Member asked for it. Such a conduct is an error of law.
2. The Tribunal ignored the fact that, as a bridging visa holder, the Applicant (with a child and a husband) has no permission to work which is truly the only reason she could not afford the translation. Is to obey the condition of Bridging Visa-E wrong?
3. The Tribunal member said the he could not find from internet/google information against the Applicant’s claim, and refused the Applicant’s claim based on “not enough evidence”. Evidence should not be refused simply because on “lack of evidence against it. Such conduct is a jurisdictional error.
4. The Tribunal did not see the nature of the Applicant’s claim as closely related to her husband’s whose hearing was held long before. It is reflected from very little use of her husband’s evidence (all evidence is on the data base of the Tribunal) by the Tribunal before coming to decision.
5. The Tribunal did not implement the decision to unite the application with the Applicant’s husband’s which is initiated by the Tribunal and having the Applicant’s agreement. This is a procedural error.”
Again I have quoted verbatim from the particulars subjoined to the grounds and it is evident that there are a number of typographical errors. Nevertheless, it appears that those particulars relate in sequence to the grounds of review in the following manner. Particulars 1 and 2 appear to relate to grounds 1 and 2. Particular 3 presumably relates to ground 2 and particulars 4 and 5 would appear to relate to ground 3. Of course in matters of this kind where the Applicant is self-represented and has not necessarily received the assistance of legal representation or advice it is appropriate to make due allowance and provide a degree of latitude to the Applicant and it may well be the first ground, namely denial of procedural fairness to some extent applies and is taken into account by the particulars subjoined to the grounds.
A number of observations need to be made, however, in relation to the issue concerning the documentary material allegedly presented by the Applicant to the Tribunal. It is noted that at the hearing of this matter the Applicant, when asked to identify the specific document which she claims was presented to the Tribunal not in English but which the Tribunal refused to translate, produced a document dated July 2005. That document was in the Indonesian language. Upon questioning the Applicant, however, it would appear that that document was of the same genre as other documents which appear in the Court Book and in particular the court notes a document not translated which appears at page 73 of the Court Book and a further document likewise not translated appearing at pages 74 and 75. The second of those documents appears to be dated May 2005. Hence, I conclude for the purposes of this application that the documents in the Court Book which are untranslated are those documents to which I referred earlier when I set out extracts from the Tribunal’s decision relating specifically to the untranslated documents. For present purposes I accept that the document now sought to be referred to by the Applicant could properly be described as being of a similar type or, as I indicated, genre to the other documents already in the Court Book.
It is not necessary therefore for the court to consider whether it should receive this additional document at this hearing. If, however, I were required to consider receiving the document I would of course require further evidence from the Applicant as to whether in fact the document was presented to the Tribunal, that is the July 2005 document, and I would need to receive other evidence concerning the details in that document beyond the general description which I have accepted.
Whilst counsel for the First Respondent has made what can only be described as appropriate submissions concerning the lack of evidence in relation to the document, I do not regard it as necessary for me to make a specific finding about that question given the general nature of the document and the description of it to which I have already referred. It seems to me the Tribunal has dealt with that issue in a manner free of jurisdictional error as the Tribunal is not obliged to obtain a translation of documents which properly described would indicate that they are documents which do not contain as the Tribunal states any different or significant additional information beyond the evidence which the Applicant already provided concerning her concerns about West Timor’s security, political and economic problems.
In my view the Tribunal’s decision involves a finding of fact reasonably open to the Tribunal free of jurisdictional error. Hence it is not necessary for me to formally rule upon whether this court should receive an additional document or indeed explore in further detail the document now sought to be referred to by the Applicant. Out of an abundance of caution should I, however, be required to rule on that issue I would rule that it is inappropriate for a court undertaking judicial review to receive a document of that kind without additional admissible evidence as to its contents and use allegedly made before the Tribunal.
That leaves the court to consider other grounds and particulars relied upon by the Applicant in the Amended Application. It is clear to me that the use made by the Tribunal of the Applicant husband’s evidence was one which was entirely open to the Tribunal. The Tribunal clearly in its decision has referred to the husband’s evidence. As a matter of law there is no requirement upon the Tribunal to combine this hearing with the hearing which dealt with the separate application by the husband. This is particularly so in circumstances where the application itself refers to the imminent departure of the Applicant’s husband and it is clear he is not included in this application. There is simply no evidence before the court upon which it can rely to support any alleged agreement by the Tribunal or otherwise to combine the two hearings.
It is clear to me from the Tribunal’s decision that it has otherwise made reference in some detail to the husband’s evidence. It has taken that evidence into account in reaching the significant, albeit adverse conclusions set out earlier in this judgment.
I can see no jurisdictional error in the manner in which the Tribunal has dealt with the Applicant husband’s evidence. It is clear that that evidence was received by the Tribunal and it clearly considered as it was entitled to do that evidence in reaching conclusions particularly in relation to the more recent claim of involvement with the East Timorese issue. Hence in my view the grounds which rely upon the manner in which the Tribunal dealt with the husband’s application and/or his evidence should fail.
The further particular, namely particular 4 which to some extent relates in a general sense to the grounds relied upon including perhaps procedural fairness, cannot be sustained. What the Tribunal has undertaken in this instance is a clear analysis of the claim put before it by the Applicant both in written material and in evidence before the Tribunal. Whilst the Applicant may have some concern about the nature of the evidence accepted by the Tribunal, and in particular, perhaps the preference by the Tribunal for country information over and above material provided by the Applicants, it is my concluded view that the analysis of that material is a matter for the Tribunal and conclusions reached by the Tribunal were conclusions reasonably open to it.
In particular, the Tribunal was entitled to have regard to, as it clearly did, the delay between the date of arrival in Australia of the Applicant and her application for a protection visa. That factor combined with other factors considered by the Tribunal led to conclusions by the Tribunal in its decision which in my view could properly be regarded as reasonably open and free of jurisdictional error.
For those reasons it follows that the application as amended should be dismissed with costs. The orders of the court are:
(1)The application as amended be dismissed;
(2)The Applicants shall pay the First Respondent’s costs fixed in the sum of $4,700.00.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 November 2006
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