SZIWT v Minister for Immigration

[2007] FMCA 501

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWT & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 501

MIGRATION – Refugee – failure to give information – failure of procedural fairness – interpreter complaint not disclosed to Tribunal – economic grounds – no convention reason – application dismissed.

Migration Act 1958, ss.91X, 424A, 422B, 425

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
Mazhar vMinister for Immigration and Multicultural Affairs [2000] FCA 1759
NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicants: SZIWT & ANOR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1527 of 2006

Judgment of: Nicholls FM

Hearing date: 2 April 2007

Date of Last Submission: 29 March 2007

Delivered at: Sydney

Delivered on: 10 April 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. J.A.C Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The reference to the first respondent’s title is amended to read “the Minister for Immigration and Citizenship”.

2. The Migration Review Tribunal is removed as a party to these proceedings.

3. There be no publication of the applicant’s name pursuant to s.91X of the Migration Act.

4. The application is dismissed.

5. The applicants pay the first respondent’s costs set in the amount of $5000.00.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1527 of 2006

SZIWT & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 26 May 2006, and amended on 29 September 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 10 April 2006 and handed down on 4 May 2006, to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicants.

Background

1. The applicants, who are husband and wife, are citizens of India who arrived in Australia on 17 November 2005. On 29 December 2005 the applicants lodged an application for protection visas with the first respondent’s Department. The second named applicant (“the applicant wife”) applied only as a member of the first named applicant’s (“the applicant”) family unit. On 1 February 2006 a delegate of the first respondent refused to grant both applicants a protection visa. On

   
   

   22 February 2006 the applicants applied to the Tribunal for review of that decision.

Claims

1. The applicants’ claims to protection are set out in their application for protection visas (reproduced in the Court Book (“CB”) at CB 1 to CB 24 and CB 31 to CB 35). The applicants’ actual application for review to the Tribunal (CB 68 to CB 71) does not disclose any further additional matters.

2. The applicant’s claims were that he left India in order to escape poverty and economic hardship. Specifically he claimed that if he were to return to India he would be without employment and an income, and that there was no food, hygiene, clothes, or medicine, and that his children would be without a future. The applicant wife did not make specific claims under the Refugees Convention, relying on her relationship to the applicant (her husband).

3. The applicant appeared before the Tribunal on 31 March 2006 (CB 77). The Tribunal’s account of what occurred at the hearing is set out in its decision record reproduced at CB 89.5 to CB 90.1. On putting to the applicant that his fears did not appear to be Convention related, the applicant is reported as responding:

   “that one of the creditors is a Muslim man who had asked him to sell drugs and alcohol” (CB 89.8).  

Tribunal’s findings

1. The Tribunal’s “Findings and Reasons” are reproduced at CB 90. The Tribunal:

   1)Was sympathetic to the applicant’s situation, that is, his fear of poverty and financial hardship in India, but found that there was nothing in his evidence to suggest that the cause of his financial situation, including the fire that destroyed his business, was Convention related (CB 90.3 to CB 90.4).

   2)With reference to the applicant’s statement that one of his creditors was a Muslim, noted that: “he was quick to confirm that religion had played no role in this situation” (CB 90.7).

   3)On all the evidence before it, was not satisfied that the applicant had a well founded fear of persecution for a Convention reason (CB 90.8 to CB 90.9).

   4)Consequently, refused the application of the applicant wife for a protection visa, in line with the outcome of the applicant’s application (CB 90.10 to CB 91.1).

Hearing

1. The applicant was unrepresented at the hearing before the Court.

   
   

   He was assisted by an interpreter in the Gujarati language. He also appeared on behalf of his wife who was not present in Court. Mr. J. Potts of Counsel appeared for the respondent Minister.

Amended application and affidavit

1. The applicants put forward three grounds of review in their amended application filed on 29 September 2006.

2. The applicant husband by way of affidavit, made on 26 May 2006 and filed on the same day, complains further that the interpreter provided by the Tribunal was a “Muslim interpreter” and that this inhibited his fully setting out his complaint.

3. The applicant stated that he relied on his affidavit of 26 May 2006, which asserted that he was afraid to provide the Tribunal with details of the whole of his claim as this involved the Muslim community in India and the interpreter provided by the Tribunal was a Muslim.  

Applicant’s evidence before the Court

1. The applicant was cross examined by Mr. Potts. As a general observation I found the applicant’s evidence, in a large part, to be:

   1)Confused, and therefore of limited reliability. For example, the applicant insisted that he had discussed his case with a lawyer “a few days” after the Tribunal hearing, but before the decision had been handed down by the Tribunal, and that this lawyer had been referred by the Court. The applicant had been referred to a lawyer by the Court, pursuant to the Court’s Refugee Legal Advice Scheme, but this was after he had made his application to the Court [He was given advice on 17 August 2006].

   2)Not credible. For example in answer to questions as to whether he had taken steps to inform the Tribunal of his concerns about the interpreter after the hearing he said he did not have enough time to do so. I did not find this explanation credible:

   i)The hearing was held on 31 March 2006 (CB 77). The decision was handed down on 4 May 2006 (CB 80 and CB 85). The applicant gave no real explanation as to why the available period of over one month was not enough time to have made a simple communication to the Tribunal.

   ii)This is especially so given what the applicant had already (as Mr. Potts subsequently submitted) demonstrated his capacity to quickly complain when matters were not to his liking. (At CB 40 to CB 41 – see the applicant’s written complaint to the first respondent Department when he had been granted a bridging visa to remain in Australia, but a visa that did not permit him to work. Further, the applicant was then able to engage the services of a migration agent who pursued this issue on his behalf. See CB 51).

   iii)The applicant’s claim to fear harm in India is a serious matter. The applicant has put nothing before the Court to say that he had concerns in this regard about the presiding Tribunal member. The applicant gave no plausible reason as to why he did not seek to communicate (in whatever way possible) his concern, which after all involves the serious matter of a refugee claim, to the presiding member at the hearing, or more importantly, if he felt that was too difficult, at some time after the hearing.

   3)Not plausible:

   i)The applicant confirmed in his evidence that he made no mention whatsoever in his protection visa application about any claim to fear harm from Muslims in India. His explanation that he was told by a friend not to mention it, but to “tell” it at the interview, is itself flimsy and convenient, given in particular that the only claims put in the application concern economic and financial hardship. It becomes implausible when seen in the context of the applicant’s (it must be said somewhat convenient) claim now concerning Muslims in India and the concern about the interpreter being a Muslim raised for the first time before this Court.

   ii)The only reference to “Muslim” at the Tribunal hearing is a reference, in the only account of what occurred at the hearing before the Court, in the Tribunal’s decision record – at CB 90.6 – that the applicant stated that one of his creditors was a Muslim man but: “he was quick to confirm that religion played no role in this situation”. Even if the applicant was concerned that the interpreter was a Muslim, such that he was reticent to give details of his concerns about Muslims in India, the plausibility of his complaint now is weakened by his failure to explain now why he told the Tribunal that “religion” played no role in his situation in India.

   4)Lacking in substance and foundation such that it was implausible and lacking in credibility. The applicant’s explanation as to why he thought the interpreter at the hearing was a Muslim was simply that he had seen her on the morning of the hearing talking to two other men who he also thought were Muslims. The applicant gave no evidence of any other factors (for example, religious garb, possible relevant language, or the like) which may have played a part in his view of the interpreter or the “two men” being Muslim.

First ground of review – Section 424A

1. The first ground of review alleges:

   “1. The tribunal was in breach of section 424(A) for failure to give me information.

   (a) The tribunal Failed to ensure that I understood the definition of a refugee.

   (b) The tribunal failed to explain to me that I could request a different interpreter as I was uncomfortable with the interpreter present at the hearing.”

2. The applicant complains that the Tribunal failed to ensure that he understood the definition of refugee, and did not explain to him that he could request a different interpreter. I agree with Mr. Potts that neither matter is “information” within the meaning of s.424A. The particulars provided by the applicant in support of this complaint provide no foundation to support a claim of the Tribunal having breached is obligations pursuant to s.424A. Nor was the applicant’s understanding (or lack thereof), or an explanation about the availability of interpreters, the reason, or even part of the reason, for the Tribunal decision. This ground does not succeed.

3. Nor on what is before me can I discern any other particular to support this ground. The Tribunal’s decision was based on what the applicant himself had put before it at the hearing such that the information relied on by the Tribunal comes within the exception contained in s.424A(3)(b). As the Tribunal stated:

   “… there is nothing in his evidence to suggest that the cause of his financial situation, including the fire that destroyed his business, was in any way Convention related” (at CB 90.3).

Second ground of review – failure of procedural fairness

1. The second ground alleges the Tribunal failed to accord the applicant procedural fairness:

   “2. There was a failure of procedural fairness in that the tribunal did not give me a hearing.

   (a) The tribunal member did not realize the sensitive Nature of having a Muslim interpreter at the hearing and should have arrange a new interpreter or re-schedule a hearing with the interpreter with another religion because I was not able to address the issues freely.

   (b) At the start of the hearing, the tribunal member said to me “I will ask you more question about this later on. First I need to get some details from you. I just need to get a sense of what your life was like in India….” I did not understand what the member was referring to and when he changed any direction of his questions. It was no (sic: not) made clear to me.”

   (c) When I was asked about religion, I said “It is - …..” But changed my answer to say “Religion is not involved, he is a Muslim that is for sure” because I knew that the interpreter was a Muslim. There was discrimination to me by the Muslims Lender and community in India because they charged me the interest and they never charged Muslims interest in India because it is against their religion. Harsh action was taken against me for the loan.”

2. At the heart of the applicant’s complaints before the Court (as expressed by him, and in his affidavit of 26 May 2006), are that he was denied procedural fairness at general law by the Tribunal because the interpreter it provided for the purposes of the hearing was a Muslim woman. In these circumstances, the applicant felt unable (fearful) of putting his claim to fear harm from Muslims in India.

3. I agree with Mr. Potts that s.422B of the Act which applies to this case, excludes the application of common law rules of procedural fairness (except the bias rule). The matters set out in Division 4 of Part 7 of the Act are the exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62)

4. However, the applicant’s complaint may be seen as a claim that the Tribunal failed in its obligation pursuant to s.425 (which is of course a part of Division 4 of Part 7) in that it knowingly failed to provide an adequate level of interpreting service such that it could be said to have failed to provide a real and meaningful invitation to the hearing within the meaning of s.425.

5. In Mazhar vMinister for Immigration and Multicultural Affairs [2000] FCA 1759 Goldberg J., after looking at relevant authorities, said at [31]:

   “These passages suggest that where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s.425(1). I agree with the observations of Wilcox J in Xiao above, at [30] that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s.425(1).”

6. The applicant’s first and third particulars in support of this ground are that the Tribunal should have realised the sensitivity, in the circumstances, of having a Muslim interpreter at the hearing and should have provided a different interpreter, or rescheduled the hearing for that purpose. Further, that the applicant changed his answers at the hearing because the interpreter was a Muslim.

7. For all the reasons already set out above, I have great difficulty with the credibility of much of the applicant’s evidence before this Court. For this reason, I can only agree with submissions by Mr. Potts that the “only explanation” for raising this issue now before this Court is a “belated” attempt to get this matter before the Tribunal for a second time. The applicant’s explanation now of his failure to inform the Tribunal (at least in the month after the hearing) of his difficulty with the interpreter, and indeed his explanation for why he thought the interpreter was a Muslim can only be described (being charitable) as weak. There is a very clear inference that, given the lack of credibility in the applicant’s evidence, the applicant’s complaint now is a late invention to seek to argue jurisdictional error on the part of the Tribunal and the complaint should be rejected on that basis.

8. But there is a second, and separate, basis on which to reject the applicant’s second ground of his application. I cannot see, on the facts before me, that the complaint, that the Tribunal did not provide a meaningful opportunity to the applicant to be heard, can be made out.

9. The applicant complains that the Tribunal member did not “realise the sensitive Nature of having a Muslim interpreter”, and should have arranged a new interpreter or re-scheduled the hearing. On what is before the Court, there is nothing (in the Tribunal’s account of what occurred at the hearing – see CB 89.5 to CB 90.1) to substantiate the applicant’s claim that the interpreter was a “Muslim”. There is nothing in the Tribunal’s account, or in any relevant documents that the Tribunal knew of, any difficulty that the applicant now says that he had.

10. Further, this complaint is not supported by any evidence put forth by the applicant. I can only agree with Mr. Potts that the applicant has put no evidence whatsoever before the Court to substantiate this claim. There is nothing before the Court to show that the Tribunal had reason to believe the applicant had difficulties with the interpreter. Even further, there is nothing before the Court to show that the applicant said, or indicated, to the Tribunal that he had difficulty, or took issue with the interpreter provided by the Tribunal.

11. The “Response to Hearing Invitation” form (reproduced at CB 76) provides at “2e” (CB 76.8):

    “Do you have any special needs for the hearing? (e.g. wheelchair access, male or female interpreter)”

    This form, signed by the applicant, shows no response to this question. There is nothing from the applicant to indicate that he wanted a non- Muslim interpreter.

12. Nor is there anything before the Court now to show that the applicant put any such concerns to the Tribunal at the hearing. Nor, if indeed he felt inhibited, is there anything to show he subsequently communicated his concern to the Tribunal, either in writing or otherwise, in the period of over one month between the hearing and the handing down of the decision. Further, the applicant had notice of the handing down of the decision on 4 May 2006, by letter dated 12 April 2006 (CB 78 to CB 79).

13. Importantly, in this regard, the applicant confirmed in his evidence to the Court that he had not told the Tribunal, at any time, of his concerns about the interpreter. Nor had he sought a different interpreter, or a rescheduling of the hearing.

14. Having been unaware at all times of the applicant’s view of the interpreter, I cannot see that the Tribunal can be said to have knowingly failed in its obligation to provide a meaningful opportunity for a hearing. Nor can I see in all the circumstances before it that the Tribunal should have been otherwise aware of the applicant’s concern about the interpreter.

15. I should just also note that there was nothing from the applicant to complain about the standard, quality, or level of interpretation provided by the interpreter. The issue for the applicant was the perception that she was “a Muslim”.

16. Similarly there is no evidence to support, let alone substantiate, the claim that the applicant changed his answers at the hearing because of his concern that the interpreter was “Muslim”.

17. The applicant further asserts (by way of the second particular under this ground in the amended application) that the Tribunal member confused him at the beginning of the Tribunal hearing. On what is before the Court, and with reference to what has been put forth by the applicant, there is no evidence to support this complaint (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

1. In all therefore, even putting aside the issue of the credibility of the applicant’s evidence to this Court, the evidence that is before the Court, confirms that the Tribunal had no knowledge of the applicant’s (now expressed) complaint. Nor were there circumstances before it from which it could infer any such difficulty with the interpreter. In all, on the evidence before the Court, the ground alleging a breach of s.425 does not succeed.

Third ground of review

1. The final ground of review put forward by the applicant is:

   “3. The tribunal member failed to understand or inquire about the serious harm I was suffering as a result of discrimination and neglect by the authority to save me.

   (a) The discrimination resulted in such serious harm to me and my family in that they were stopping me from being able to earn a basic living.

   (b) The authorities were allowing the discrimination by this Muslim community against me and many other poor people indebted to the Muslim. There were no mechanisms to stop this type of discrimination in place.

   (c) It was impossible for me to explain this type of discrimination and serious suffering in the presence of a Muslim interpreter as he would get angry and I could not trust him to interpret correctly for me.

   (d) In my form 866C application I have said in Question Number 41 and 44 that I need an interview for me to explain in detail but I never received this interview opportunity and I could explain in detail to the tribunal due to the presence of a Muslim interpreter.”

2. Putting to one side the applicant’s repeating in this ground his complaint about the interpreter, with which I have already dealt with above, what remains is the complaint that the Tribunal failed to understand, or to enquire, about discrimination by the Muslim community in India, and that the authorities “allowed” this discrimination.

3. I agree with Mr. Potts that, on the material before the Court, such a claim was never put to the Tribunal. Nor can I see, on what is before the Court now, that it can be said that there were such circumstances which should have caused the Tribunal to make further enquiries about this issue.

4. Nor for that matter was any complaint about discrimination in the community and the inability of the Indian authorities to address this discrimination put in the application for a protection visa or with the written application for review.  The applicant contends that this claim was not put to the Tribunal at the hearing due to the presence of a Muslim interpreter. As I noted above, there is nothing before the Court now to suggest that the applicant informed the Tribunal at any stage of the discrimination he faced in India or his claimed difficulty with the “Muslim interpreter”. The applicant’s explanation that he could not put this claim to the Tribunal at the hearing because of the interpreter in no way explains why he did not put it to the Tribunal in the one month available to him after the hearing. The evidence before the Court is that the applicant was able to make representations in writing on his own behalf (even if he did obtain the services of a “friend” for this purpose) and that he even knew how to go about arranging the assistance of a migration agent. In all therefore, this ground does not succeed.

Conclusion

1. The applicant made claims in his protection visa application (nothing more was added to his written application to the Tribunal) which indicated the basis of his refugee claim as being economic and financially related. The Tribunal (on the evidence before the Court) dealt with possible additional element to his claim put at the hearing, that one of the creditors was a “Muslim man”. But proceeded on the basis of the applicant’s confirmation that “religion” “played no role”. 

2. The Tribunal found that the applicant’s claims were not Refugee Convention related. On what was before it, this was plainly open to the Tribunal, and it gave reasons which were reasonable in all the circumstances. Similarly, the Tribunal’s conclusion in relation to the second applicant before the Court (the applicant’s wife) was also open to it given her reliance solely on her husband’s claims. I cannot see that jurisdictional error can be discerned in the Tribunal’s decision. The application is dismissed.

Orders

1. In addition, I will make orders amending the reference to the first respondent’s title, to remove the Migration Review Tribunal as a party to these proceedings and an order pursuant to s.91X that there be no publication of the applicant’s name (given that he stated his name at the beginning of his evidence before the Court). In all the circumstances it is also appropriate that an order for costs be made against the applicants (I can see no reason that argues against the making of such an order). The Minister’s request for a fixed sum of $5000.00 is reasonable in all the circumstances (The applicant was put on notice of this possibility at the hearing before the Court and made no relevant response).

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

Associate: 

Date:  10 April 2007.