SZJXA v Minister for Immigration
[2008] FMCA 1053
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1053 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a decision of a delegate of the Minister not to grant the applicant a protection visa – whether the applicant is a citizen of Ghana or of Togo – claim assessed against Togo – whether failure of interpreting at Tribunal hearing – no evidence of deficiencies of interpreting – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.425, 474 |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Citizenship v SZHXF [2008] FCAFC 36 SZHOA v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 501 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZJXA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3807 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 July 2008 |
| Date of Last Submission: | 22 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Applicant: | Applicant in person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to "Minister for Immigration & Citizenship".
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3807 of 2006
| SZJXA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant claims to be a citizen of the African nation of Togo. She asks the Court to review a decision of the Refugee Review Tribunal signed on 20th November 2006 and handed down on 30th November 2006.
The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant now seeks to have that decision reviewed.
Background
The Applicant arrived in Australia and applied for a Protection (Class XA) visa on 31st March 2006. In that application she claimed a well‑founded fear of persecution, on the basis that her late husband was executed by the authorities for his political activities against the government in Togo. She set out that Togo itself is divided into two different ethnic groups; the ruling party, which is from the Kabri tribe, in the north of Togo, and the Ewe tribe, which is in the south of Togo. The Applicant claimed to be from the Ewe tribe.
The Applicant's claim also referred to her fear of persecution by the government, or the ruling party, on the ground of her religion. The Kabri tribe, according to her statement set out on page 28 of the Court Book, believed in voodoo, whilst the majority of the Ewe tribe are Christians.
The Applicant claimed that she herself was a Christian. She claimed that most of her relatives in Togo, as well as her husband, had been killed during an uprising during the government. She claimed that she, and a few of her relatives who stayed alive, escaped Togo and went to Ghana and, fearing that her life was still in danger in Ghana, she left Ghana and decided to escape to Australia. She claimed that the government would not protect her if she were to return to her country because of the activities of her late husband.
A delegate of the Minister considered her application but refused the application for a visa on 28th July 2006. The delegate, in the decision, noted that the Applicant had arrived on what appeared to be a passport from Ghana, under a different name.
The Applicant had been interviewed by the delegate and the delegate was suspicious of her claim to be a citizen of Togo, due to the fact that the Applicant claimed that she spoke, read and wrote in both Ewe and in English but did not speak French.
The Applicant was offered a French interpreter because Togo is a Francophone state but declined that offer because she does not speak French. The delegate said:
The applicant's language skills leads me to question the credibility of her claim that she is a Togolese citizen who has resided in Togo since birth, and who has been educated in the Togolese education system.[1]
[1] See Court Book at page 98
The Applicant provided a photocopy of a birth certificate which the delegate was not satisfied was a valid document and did not accept was satisfactory supporting evidence of the Applicant's Togolese citizenship. The delegate ended up by saying:
I have considered all the information and the evidence before me. I am unable to satisfactorily establish the applicant's actual country of citizenship, however it is possible that she may be a Ghanaian citizen. However I am satisfied that the applicant is not a citizen of Togo.[2]
[2] See Court Book at page 99.
The delegate noted that the Applicant had made claims against both Togo and Ghana and was satisfied that the Applicant was not a citizen of Togo. The delegate expressed herself unable to make a finding on whether the Applicant was a Ghanaian citizen but was satisfied that the evidence did not indicate that the Applicant was a citizen of Ghana. Therefore, the delegate did not undertake an assessment of the Applicant's claims of persecution against either Togo or Ghana and found that she was not satisfied that the Applicant was a person to whom Australia has protection obligations.
Application for Review by the Refugee Review Tribunal
The Applicant then applied to the Refugee Review Tribunal for a review of that decision. The application was received at the Sydney Registry of the Refugee Review Tribunal on 18th August 2006. In section C of the application the Applicant set out that she had an adviser whom she authorised to act for her and provided details of that adviser. The Applicant appointed the adviser as her authorised recipient for correspondence.
The Tribunal wrote to the Applicant on 19th August 2006, acknowledging receipt of the application, and wrote again on 1st September, advising the Applicant that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.
The Tribunal invited the Applicant to attend a hearing, to take place at 9:30am on 18th October 2006. The Applicant completed a Response to Hearing Invitation, indicating that she wished to attend the hearing and would require the assistance of an interpreter in the Ewe language. She provided to the Tribunal a copy of a letter in English, which was signed "Best wishes from the entire family". The Applicant attended the hearing on 18th October 2006 and was accompanied by her agent. An interpreter was available in the Tonga/Ewe dialect.
The Tribunal’s Decision
The Tribunal handed its decision down on 30th November 2006. A copy of the Tribunal decision record can be found in the Court Book, at pages 120-132. The Tribunal set out the Applicant's claims and evidence, noting that she claimed to have arrived in Australia on 10th December 2005 on a Ghanaian passport, which was taken from her by a people smuggler after her arrival at Sydney airport.
The Tribunal noted the Applicant's claims to have left Togo because of fear of persecution by the government, following the execution of her husband by the authorities; it noted her claim to fear that she would be arrested or killed if she returned to Togo, because of her late husband's anti‑government political activities; and noted her claim that the government in Togo persecuted the Ewe people for being both anti‑government and for being Christian.
The Tribunal set out the Applicant's evidence to the Tribunal in some detail at pages 124-127 of the Court Book. The Tribunal also considered external evidence, being Independent Country Information from the United States Department of State, being Country Reports on Human Rights Practices for 2005, Togo.
The Tribunal’s Findings and Reasons
The Tribunal was not satisfied that the Applicant was a citizen of Togo notwithstanding the fact that the Applicant had produced a Togolese birth certificate. The Tribunal said:
It was not satisfied that a person who had lived for more than 30 years in a country where French is the official language would be unable to speak any of that language - especially as the applicant was not in a remote village but in the capital city for the last 17 or 18 years of her time there. Even prior to that, she lived in a town (Tabligbo) which the Microsoft Encarta Atlas indicates is one of the biggest towns in the country. Given that, and her attendance at school until the age of 16, is it not possible that she has remained entirely ignorant of the French language and has instead become fluent and literate in English.[3]
[3] See Court Book at page 129.
The Tribunal did accept that the Applicant's first language was Ewe but formed the view that the Applicant would have some familiarity with French and should be more familiar and comfortable with French than with English, in which, as the Tribunal noted, the Applicant was fluent and literate.
The Tribunal then set out details of the Applicant's answers to a number of questions about Togo which the Tribunal had asked her and found that, on the evidence, it was not satisfied that she was a citizen of Togo. The Tribunal went on to say:
However, there is no definite evidence to show that she is a citizen of Ghana, although the Tribunal has formed the view that this is the case, based on the evidence of the hearing.[4]
[4] See Court Book at page 130.
However, the Tribunal went on to address the question of whether the Applicant has a well-founded fear of persecution for a Convention reason if she were to return to Togo, based on her testimony. It decided not to address the question of her return to Ghana because she had not put forward any claims against that country. The Tribunal went on to state:
Although the applicant was put on notice by the Tribunal that it considered she may be a citizen of Ghana, the applicant made no claims (nor did the evidence suggest) that she has any fears of Convention‑related persecution in relation to that country.[5]
[5] Ibid
The Tribunal then went on to consider the Applicant's claims against Togo based on the Applicant's late husband's political activities. The Tribunal was critical of the Applicant's evidence, saying that she was unable to give any evidence at all that her husband was a political activist and described her testimony as "a series of mere assertions, with no detail whatsoever"[6]. The Tribunal went on to find that it was not satisfied that the Applicant's husband was an activist in the UFC, which was the opposition party in Togo, nor that he was killed for that reason.
[6] Ibid
The Tribunal found that, even if the Applicant's husband had been a member of the UFC, there was nothing before the Tribunal to indicate that the Applicant would be targeted for reason of an imputed political opinion simply because she was married to him. The Tribunal did not find that there was a real chance that harm amounting to persecution would befall the Applicant for reason of her imputed political opinion.
The Tribunal noted the Applicant's general fears about the treatment of Ewe people and Christians in Togo and that she claimed to be both Ewe and Christian. The Tribunal went on to refer to external evidence to show that Ewe is the largest ethnic group and dominates the south of Togo. The Tribunal was not satisfied that the external evidence showed any support for the Applicant's claim that the Kabye (also known as Kabri) people were animists and targeted Christians for reason of their religion. It also went on to find the external evidence indicated that inter‑religious tension was not a major concern in Togo.
The Tribunal was not satisfied that the Applicant had suffered, or would suffer, harm, let alone harm amounting to persecution, for reason of her race or her religion. The Tribunal was not satisfied that the Applicant would suffer harm for any other Convention reason and noted that no claims had been put forward about any other grounds.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and found that the Applicant did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa.
Application for Judicial Review in this Court
The Applicant commenced proceedings for judicial review in this Court on 19th December 2006, by filing an application and an affidavit in support. It has taken some time for the application to come to a final hearing in the Court. One of the reasons for that is that a considerable amount of difficulty had been occasioned in obtaining an interpreter in the Ewe language. An interpreter was eventually secured who was fluent in that language, located in Melbourne, and the interpreter provided assistance by telephone.
The Applicant's application does not set out any orders which the Applicant seeks but I would be of the view that she would seek orders in the nature of certiorari and mandamus setting aside the Tribunal decision and remitting the application to the Tribunal for determination according to law. The only ground given in the application is, "I disagree with the decision taken by RRT". The Applicant's affidavit in support is not much more helpful, saying:
(1) All information about my financial status are true and correct;
(2) All information about my immigration status are correct and true.
The Applicant has submitted some documents in support of her claim. Prior to the hearing she submitted some medical documents, including a discharge summary from Westmead Hospital showing that the Applicant had attended that hospital on 9th June 2008, suffering from some medical symptoms. It was not clear what relevance that documentation has to the Applicant's claim.
The Applicant submitted two documents in the form of character references from one Hwa‑Yeon Lee, known as Mark Lee, the President of the Macquarie University Bible Fellowship. Those certificates indicated that the Applicant had come to join Mr Lee's church in June 2004 and the church had provided her with some assistance. The second document indicated that the Applicant did not have a Medicare card and had received medical treatment, when necessary, at the expense of the church. The document related mainly to a request to obtain the Applicant a Medicare card.
The day after the hearing the Applicant forwarded some documents to the Court, unannounced and uninvited. They were documents in the nature of a birth certificate and other documents going to her identity. The Court cannot consider this material because the Court does not embark on merits review of the Tribunal's decision. If this material was not before the Refugee Review Tribunal, it cannot figure in the Court's consideration of the Applicant's request for review of the Tribunal decision in any way. Those documents, which appear to be original documents, will be returned to the Applicant.
Mr Johnson of counsel, who appeared for the First Respondent, the Minister for Immigration & Citizenship, submitted to the Court a copy of a letter written to the Applicant on 2nd June 2008 by the solicitor for the Minister. That letter asked the Applicant to advise the Minister's lawyers in writing of any grounds upon which she sought to rely and any evidence upon which she sought to rely. No such material was forthcoming.
The Applicant did, however, attend Court and made submissions, with the assistance of the Ewe interpreter. She explained that the medical documents that had been forwarded that supported her claim that before the matter came before the Court on her last occasion, which was 10th June 2008, the Applicant had been rushed to hospital. That may well be the case but there was no application for an adjournment for any medical reason and, indeed, on 10th June 2008, the hearing did not proceed due to the unavailability of an interpreter.
At the hearing before this Court on the 22nd July 2008, the Applicant complained about the standard of interpreting by the interpreter at the Refugee Review Tribunal hearing. She told the Court details of how she had gone from Togo to Ghana for a short period of time and had been provided with a Ghanaian passport. Again, as I have indicated, the Court cannot undertake merits review of the Tribunal decision.
The Applicant then reiterated her complaint that the interpreter at the Tribunal hearing had misinterpreted some matters of evidence before the Tribunal. No transcript of the Tribunal hearing has been produced, although the hearing took place on 18th October 2006, which is approximately 17 months ago. The Applicant did not indicate how it was that the interpreter had misrepresented her case or how she knew of it.
For the Minister, Mr Johnson of counsel submitted that it was up to the Applicant to prove her claim that the translation of her evidence had not been satisfactory; she had provided no transcript and no evidence from any expert in the Ewe language. He submitted that: any deficiencies which the Applicant observed were not material and, if the Applicant had heard things being said to the Tribunal that were not correct, she should, or would, have known that at the time; there is no record in the Tribunal decision record that the Applicant made any complaint then about the Tribunal's interpreter misinterpreting her claim; the Tribunal's reasons for the decision were based on the Tribunal's evaluation of the Applicant's case and were based on Independent Country Information.
In my view, the Tribunal's decision was open to it, on the evidence that was before the Tribunal at the time. As I said, the Court cannot undertake merits review of the Tribunal's decision, and I refer in particular to Attorney-General (NSW) v Quin[7] and also Minister for Immigration & Ethnic Affairs v Wu Shan Liang[8]. It has been put to the Court, and I accept, that the Full Court of the Federal Court of Australia has recently confirmed, in Minister for Immigration & Citizenship v SZHXF[9], that country information of the type that was considered by the Tribunal in this case does not need to be put to an applicant under the provisions of s.424A of the Migration Act. In my view, it is well‑established that Independent Country Information is covered by the exclusion in s.424A(3)(a) of the Migration Act.
[7] (1990) 170 CLR 1 at 35-36
[8] (1996) 185 CLR 259 at 271-272
[9] [2008] FCAFC 36 at [19]‑[22]
Mr Johnson also referred the Court to the decision of SZHOA v Minister for Immigration & Multicultural & Indigenous Affairs[10], where his Honour Allsop J indicated that s.424A should be seen as a code, insofar as that section deals with the subject matter of raising issues with an applicant by reference to the material placed before the Tribunal. Mr Johnson submitted that no breach of any procedure governing the Tribunal had been established, nor was any error of principle evident in the Tribunal's reasons; there was no error of the kind discussed in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[11]. That judgment, of course, dealt with a Tribunal decision turning upon an issue that was not obvious.
[10] [2007] FCA 501
[11] (2006) 228 CLR 152
Conclusion
In this case the Applicant has made no claims of jurisdictional error, other than to make a vague, unsupported claim that certain aspects of the interpreting before the Tribunal hearing were inaccurate. There has been no evidence provided in support of that claim and, indeed, it is difficult to ascertain what matters were actually mistranslated or not translated. In my view there is no breach of s.425 of the Migration Act.
The Tribunal wrote to the Applicant on 1st September 2006 and invited her to attend a hearing on 18th October 2006, which was more than sufficient time. The Applicant attended the hearing. She had requested an interpreter in the Ewe language and that is what the Tribunal provided for her. She gave evidence and had the presence of her adviser to assist her at the hearing. There were no fresh issues raised by the Tribunal that had not been raised by the delegate. The entire issue of the Applicant's nationality was an issue that was well and truly before the delegate, and the delegate made the decision not to assess her claims against either Togo or Ghana.
The Tribunal, however, whilst less than satisfied that the Applicant was in fact a citizen of Togo, as she claimed, proceeded to assess the Applicant's claims against Togo, as the Applicant's country of nationality, which was the country of nationality which the Applicant claimed. There was no basis for assessing the Applicant against Ghana, as she had made no claims against that country.
The Tribunal considered the substance of the Applicant's claims of a fear of persecution arising out of the execution by her husband in Togo for anti-government activities and her fear of persecution on the basis of race and religion in Togo. The Tribunal considered Independent Country Information about Togo and considered the Applicant's evidence. There is nothing before this Court to show that the Tribunal failed to consider any relevant aspect of the Applicant's claim. There is no breach of s.425 of the Migration Act, there is no breach of s.424A of the Migration Act either.
The reasons for the Tribunal's decision were based on the Applicant's failure, from her own evidence and from the country information, to satisfy the Tribunal that she was not a person to whom Australia owed protection obligations under the Refugees Convention. There was no information that formed the reason, or a part of the reason, for the Tribunal's decision to affirm the delegate's decision that should have been put to her in writing under the provisions of s.424A(1) of the Migration Act. There is no breach of s.424A of the Migration Act.
In my view, considering the Applicant's case, noting that she is not legally represented, noting also that the only claim that she made was a failure of interpreting, which has not been proved, the Court's own independent assessment of the Tribunal decision does not disclose any arguable case of jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by s.474(2) of the Migration Act. Privative clause decisions are final and conclusive and not subject to orders in the nature of certiorari, mandamus, prohibition injunction or declaration.
It follows, therefore, that the application must be dismissed and the Court will consider the question of costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 28 July 2008
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