SZKDL & Anor v Minister for Immigration & Anor
[2007] FMCA 1806
•22 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKDL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1806 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – lack of good faith on the part of the Tribunal not proved – Tribunal’s reasons satisfied requirements of s.430 – failure by Tribunal to consider untranslated documents does not amount to error – Tribunal under no duty to translate foreign language documents. |
| Migration Act 1958, ss.425, 427, 430 |
| SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| First Applicant: | SZKDL |
| Second Applicant: | SZKDM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 354 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 October 2007 |
| Date of Last Submission: | 22 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2007 |
REPRESENTATION
The Applicants appeared in person.
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicants pay the first respondent's costs fixed in the amount of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 354 of 2007
| SZKDL |
First Applicant
| SZKDM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. The first applicant claims he was a supporter and member of Shiva Sena, a Hindu organisation. He alleges that while in India he was a local leader of Shiva Sena and a supporter of the Bharatiya Janata Party (“BJP”) and that this subsequently led to him being threatened and subject to extortion by Congress Party members.
The second named applicant is the wife of the first applicant. She has no refugee claims of her own but is applying on the basis that she is a member of the first applicant’s family unit. For convenience, the first named applicant will be referred to in these reasons as “the applicant”.
The applicant claims to fear persecution in India because of his religious and political beliefs.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 15 July 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 13 of the Tribunal’s decision (Court Book (“CB”) pages 106 – 115). Relevantly, they are in summary:
a)the applicant was a supporter and member of Shiva Sena, a Hindu organisation;
b)the applicant and his family owned a jewellery making business but the Hindu-Muslim riots of 2002 ruined their business and social life. On 28 March 2002, during the riots, his shop was looted and burnt;
c)during the last municipal elections the applicant and his family supported the BJP candidate;
d)during the last municipal elections his “place” was a centre for BJP workers. Local and state BJP and Shiva Sena leaders visited his home most of the time;
e)a day before the election, the Muslim leader Mr Bhai came to his place with a “hired person” and asked him to support the Congress Party candidate. He told Bhai to leave and not to threaten him;
f)Bhai did leave but warned that if the Congress Party candidate did not win the election the applicant and his whole family would be in trouble and might be forced to leave town;
g)a month after the BJP candidate won the election the applicant was told to leave the city within a week and pay 300,000 rupees or he would be killed and his whole family face troubles;
h)the applicant informed his leaders and they advised him to move and hide, which he did, but a week later, “they” found him and only gave him two days to pay;
i)the applicant paid an agent who organised a visa for Australia and he left his children with a distant relative far away from the city; and
j)the applicant claimed that if he returns to India the Congress Party would find and kill him and his family.
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 did not accept that the applicant was or ever had been a Shiv Sena member or that he campaigned for any BJP candidate in any election, noting that:
i)the applicant was unable to identify Shiv Sena as a political party notwithstanding his claim to have been a member for five years;
ii)the applicant’s testimony about what Shiv Sea was and did was very general;
iii)he was unable to name the Shiv Sena leader when first asked at the hearing. The Tribunal did not accept the applicant’s claim that he was unable to answer because he was tense, noting that he seemed to have been quite relaxed;
iv)the applicant’s evidence about being a Shiv Sena leader was unclear. It seemed to the Tribunal that the applicant was being intentionally evasive about this;
v)the applicant initially stated that no Shiv Sena candidates stood during the 2002 Gujarat state elections although independent country information indicated that nine candidates had stood;
vi)he was unaware of the Shiv Sena election symbol;
vii)he was unable to tell the Tribunal of the name of the candidate he campaigned for in the 2005 elections, notwithstanding that he had campaigned for fifteen days for that candidate; and
viii)his applicant’s evidence about the 2002 election was confused and inconsistent;
b)the Tribunal did not accept that the applicant had to go into hiding because of threats by the Congress Party or anyone else, noting that:
i)the applicant’s evidence about being threatened and being forced to go into hiding was vague and general; and
ii)his evidence was inconsistent as to whether he hid alone or with members of his family;
c)the Tribunal did not accept that in 2002 riots occurred outside the applicant’s home, that he was harmed, that his business was looted and burnt during the riots, that his business failed on account of the 2002 riots or that he left home in Ahmedabad in 2003, noting that:
i)the applicant was not able to provide an explanation of how the 2002 riots forced him to leave his home in 2002;
ii)the applicant was unable to provide an explanation of how the riots ruined his business if he was able to operate until 2006;
iii)the applicant’s evidence was vague and appeared rehearsed;
iv)independent country information indicated that the extent of violence that occurred during the 2002 riots had not been repeated subsequently, that Muslims are a minority in India and are at a greater risk of harm than Hindus are in Hindu dominated areas such as Gujarat and Ahmedabad; and
d)the Tribunal concluded that the applicant was not a credible witness and that his claims had been invented.
Proceedings in this Court
The grounds of the application can be paraphrased as follows:
a)the Tribunal’s decision was not made in good faith and according to the rules of natural justice;
b)the Tribunal erred in reaching its finding on relocation;
c)the Tribunal failed to give proper and adequate reasons; and
d)the Tribunal failed to consider all the claims and issues advanced by the applicant.
At the hearing today the applicant also raised a further issue, namely that he had been unable to present certain evidence which he wished the Tribunal to consider.
Dealing with each of these grounds in turn:
The Tribunal’s decision was not made in good faith and according to the rules of natural justice
The reference to the breach of the rules of natural justice must relate only to the allegation concerning a lack of good faith because nothing has been identified as the basis for this asserted ground of review. In particular, no breach of any section contained in div.4 of pt.7 of the Act has been alleged.
As to whether there has been a lack of good faith in the conduct of the Tribunal's review, the matters which might constitute a failure to undertake an exercise of the power of review in good faith have been set out by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at pages 755-756 as follows:
i)an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker;
ii)the allegation is not to be lightly made and must be clearly alleged and proved;
iii)there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition;
iv)the presence or absence of honesty will often be crucial;
v)the circumstances in which the Court will find an administrative decision-maker has not acted in good faith are rare and extreme;
vi)mere error or irrationality does not of itself demonstrate lack of good faith;
vii)errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness;
viii)the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; and
ix)it is not necessary to demonstrate that the decision-maker knew the decision was wrong.
In this case there is no evidence before the Court other than what appears in the Tribunal's decision record. That demonstrates that the Tribunal endeavoured to conduct a full and fair review. Judging by the “RRT hearing record” reproduced at CB 84 and 85, the Tribunal hearing went for over three hours. That, together with the recounting of the evidence which was taken at the Tribunal hearing, and is rehearsed in the decision record, suggests that the Tribunal was giving the applicant an opportunity to give evidence and present arguments.
There is nothing before me which suggests that there is any basis for personal criticism of the Tribunal and I find that the asserted ground for review based on lack of natural justice by reason of failure by the Tribunal to exercise its powers bona fide is not made out.
The Tribunal’s finding on relocation was incorrect
This ground is misconceived as the Tribunal made no finding on the subject of relocation. The applicant's application refers to a passage at CB 56 which is one page of the decision of record of the delegate who made the initial decision to refuse the applicant's application for a protection visa. These proceedings are for review of the Tribunal's decision, not the delegate's decision, and consequently no jurisdictional error is demonstrated in respect of this asserted ground of review.
The Tribunal failed to give proper and adequate reasons
The Tribunal's duty to give reasons is prescribed by s.430(1) of the Migration Act 1958 (“Act”) which provides:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement which:
(a) Sets out the decision of the Tribunal on the review;
(b) Sets out the reasons for the decision;
(c) Sets out the findings on any material questions of fact;
(d) Refers to the evidence or any other material on which the findings of fact are based.
In this case the reasons for the decision were that the Tribunal did not accept that the applicant was a credible witness. It did not believe his claims and in fact believed that they were fabricated. In reaching these findings and the other findings already detailed in these reasons the Tribunal set out the applicant's claims, set out the inconsistencies associated with the applicant's evidence concerning those claims, discussed in a logical and cogent manner why some of the applicant's evidence was not believable and identified the facts it found and the evidence on which those findings were based. No breach of s.430 of the Act has been demonstrated and no jurisdictional error has been shown as a consequence.
The Tribunal failed to consider all the claims and issues put forward by the applicant
The applicant's claims were first set out in the statement attached to his protection visa application form which is found at CB 32 to 34. There the applicant sets out his claimed political activities and their consequences, as well as the alleged consequences to him of the 2002 sectarian riots in Gujarat. Clearly, the Tribunal's decision record demonstrates that these issues were considered.
The only matter raised there and not discussed in the Tribunal's decision record was the alleged lack of state protection available to the applicant. However, it was not relevant for the Tribunal to consider this given the findings that it made in relation to the applicant's claims to fear persecution.
Failure to consider evidence
Today the applicant raised two additional matters which he alleges the Tribunal did not consider. The first one was the alleged failure by the Tribunal to consider a photograph which he had submitted to it and which is reproduced at CB 90 and its failure to consider documents in the Gujarati language which are reproduced at CB 88 and 89.
As to the first of these, the applicant's claim is factually incorrect when one considers page 17 of the Tribunal's decision where it says:
He submitted what he said was photographic evidence of this. However, there is nothing on the face of the photograph to support his assertions that the riots occurred right outside his home or that the man was killed outside his home.
As to the assertion that the Tribunal failed to consider the documents in the Gujarati language, the Tribunal is under no obligation to translate foreign language documents submitted to it by applicants. It invites applicants to put evidence and arguments before it but no error is disclosed by requiring that the documents that are submitted to it be translated into English so that they can be understood by the Tribunal.
Although the Act says in s.427(7) that communication at the Tribunal hearing may go through an interpreter, such an obligation does not extend to providing translation services in relation to whatever written material the applicant may submit, even if the combined operation of s.427(7) and s.425 do effectively amount to a requirement that an interpreter be provided at a Tribunal hearing if it is necessary for the applicant to give evidence and present arguments. Therefore if the Tribunal did not consider the evidence contained in the documents submitted because they were in Gujarati, no error is disclosed.
But, in any event, to ignore relevant material will only amount to error if it affects the exercise of the power reposed in the Tribunal. No translation of those documents has been provided to the Court and thus it has not been shown what is in those documents. Consequently, it has not been proved that the fact that the Tribunal did not consider the contents of those documents amounted to jurisdictional error.
Inability to present evidence
The second matter raised by the applicant today, namely that he was unable to present evidence, relates also to the documents in the Gujarati language. The applicant submitted that although he had been given two weeks to translate these documents into English, he could not. Thus he could not effectively submit their contents to the Tribunal and he lost the opportunity to present that evidence to the Tribunal.
By the Tribunal's letter of 7 September 2006 (CB 74 to 75) the applicant was invited to attend the hearing of the Tribunal. That invitation to attend the hearing of the Tribunal also invited the applicant to:
send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator.
The applicant did not produce to the Tribunal at the time of the hearing or prior to the hearing any translations of the documents to which he now refers. However, as his submission today conceded and as is recorded at page 12 of the Tribunal's decision record (CB 114), the Tribunal allowed the applicant a further two weeks after the Tribunal hearing in which to submit translations of documents. No translations were submitted.
Although an applicant has no onus of proof before the Tribunal as that expression is understood in the Court context, nevertheless the Tribunal is obliged to affirm the decision of the delegate unless it is satisfied that the applicant is a person to whom Australia has protection obligations. In order to assist the Tribunal to reach the required level of satisfaction, it is necessary for applicants to put before the Tribunal evidence and arguments which can lead it to reach that level of satisfaction.
In the context of this application, if the applicant wished the Tribunal to consider the documents to which he made reference, it was incumbent upon him to put those documents before the Tribunal in a form which the Tribunal could understand. On at least those two occasions the applicant was invited to put before the Tribunal the information which he wanted it to consider and the fact that he could not do so does not amount to an inability to present evidence for which the Tribunal was responsible. Consequently, no jurisdictional error is demonstrated in relation to this asserted ground of review.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 November 2007
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