SZKNL v Minister for Immigration - [2007] FMCA 1761

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1761

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – in the absence of a subjective fear of harm there could not be a well-founded fear of harm for a Convention reason – Tribunal must exercise its powers under s.427(7) to appoint an interpreter if the applicant requires one in order to have a real opportunity to give evidence and present arguments – if an applicant can communicate sufficiently well to give evidence and present arguments in a real sense, s.425(1) will have been satisfied.

Migration Act 1958, ss.91R, 91X, 425, 427

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293
Singh v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 1

Applicant:

SZKNL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1263 of 2007

Judgment of:

Cameron FM

Hearing date:

6 August 2007

Date of Last Submission:

17 September 2007

Delivered at:

Sydney

Delivered on:

2 November 2007

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents:

Ms. A. Cox

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1263 of 2007

SZKNL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 18 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 28 February 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 21 November 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.

Background facts

The applicant claims to fear persecution in Mongolia because of his homosexuality.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-6 of the Tribunal’s decision (CB 83-85). Relevantly, they are in summary:
a)the applicant is homosexual. In autumn 2005 when he was drunk at a party, the applicant kissed one of his friends, whom he mistakenly thought was also homosexual. This man hit the applicant who, out of fear, did not report the assault;
b)after that incident, the applicant’s life became very difficult. He could not relate to most of his friends because the man who became aware of his homosexuality told everyone and nobody understood or accepted his sexuality;
c)the applicant lost his business because of the problems. He had financial problems and his relationship with his business partners had worsened;
d)the applicant became a Christian in August 2003, but was unable to “leave my sins”. He fears that he will be harmed by everyone who knows about his homosexuality and that the authorities would not protect him; and
e)the applicant said that although homosexuality was legal in Mongolia, most Mongolians do not accept homosexuality.

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 was not satisfied that the applicant was homosexual or that he had engaged in any homosexual activities either in Australia or in Mongolia. For those reasons, the Tribunal was not satisfied that the applicant had suffered any of the harm claimed by him or that there was a real chance that he would suffer any harm on the basis of his claimed homosexuality.

Proceedings in this Court

The grounds of the application can be summarised as follows:
a)the Tribunal made a wrong decision;
b)the Tribunal misapplied the test for a “well-founded fear”; and
c)the Tribunal did not consider the applicant’s claim to fear “serious harm”.
At the hearing it became apparent from the applicant’s submissions that an important element of his complaint with the Tribunal’s decision related to what he asserted was a misunderstanding of what he had said to it. Without expressing it in these terms, the applicant was saying that he had not been given a real and meaningful invitation to a hearing because he had been unable to communicate sufficiently well with the Tribunal. His new allegation also raises the possibility that the Tribunal erred by failing to require the intervention of an interpreter as s.427(7) empowered it to do.
Dealing with each of these grounds in turn:

The Tribunal made a wrong decision

This asserted ground of review invites the Court to revisit the Tribunal’s decision on the merits of the applicant’s application to it. As the Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10:
… to engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal. (at [10]).
It is not open to this Court to reconsider the merits of the applicant’s claim or, even if it were minded to do so, to arrive at a decision on the merits of his claim different from the one reached by the Tribunal.
Consequently, this ground does not disclose jurisdictional error on the part of the Tribunal.

The Tribunal (a) misapplied the test for “well-founded fear” and (b) did not consider the applicant’s claim to fear “serious harm”

A threshold issue in the consideration of these two asserted grounds of review is whether the Tribunal accepted the fundamental elements of the applicant’s claim to fear persecution by reason of his alleged homosexuality. That is to say, before the Tribunal can decide whether the applicant’s alleged fear of persecution is a well-founded one it has to determine whether the applicant has a subjective fear of persecution at all. Similarly, before the Tribunal determines if the applicant fears serious harm it has to determine if the applicant has a subjective fear of persecution and that the fear is objectively well-founded.
As to the proper tests to apply in the event that the Tribunal accepted that the applicant had a genuine subjective fear of persecution, they were discussed by the Tribunal without apparent error at CB 82. There the Tribunal talked of well-founded fear in terms of the “real chance test” and, in relation to the issue of serious harm, made specific reference to s.91R(1) and (2) of the Act where the “serious harm” modification to the refugee test is found.
In the circumstances of this application, the Tribunal had no occasion, based on its factual findings, to consider whether the applicant’s claimed fear of persecution was well-founded or whether the persecution he claimed to fear amounted to serious harm. This was because it found against the applicant on the foundation point of his claim, namely that he is homosexual. Having rejected this most fundamental element of his claim, there was no occasion for the Tribunal to consider either of the two issues raised by the applicant in this asserted ground of review. Consequently, this ground discloses no jurisdictional error on the part of the Tribunal.

Failure to exercise powers under s.427(7) and / or breach of section 425

The applicant raised the question of whether the discretion available to the Tribunal pursuant to s.427(7) miscarried. Section 427(7) provides:
If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
The operation of s.427(7) impacts on the Tribunal’s obligations under s.425(1) which provides:
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.
In Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188, Goldberg J discussed s.425(1) of the Act and came to the conclusion that the earlier authorities suggested:
… 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 … 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. (at 195 [31]).
The requirements of s.425 have been discussed by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 where it held at 300 [37] that the statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation.
The question in the present case then is whether there was a real and meaningful invitation to the hearing or just a gesture rendered empty by the applicant’s alleged inability to express himself in English sufficiently well.
The inter-relationship between s.427(7) and s.425 was discussed by the Full Court of the Federal Court in Singh v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 1 where their Honours identified that if an applicant for refugee status was unable to give evidence and present arguments in English, the effect of s.425(1) was to necessitate the exercise of the power under s.427(7) and to require that communication proceed through an interpreter. As their Honours said:
Thus, the notion of proficiency in English that is referred to in s.427(7) must be understood by reference to the object for which s.427(7) is included in the Act. It is there to ensure that at a hearing the applicant will have a real opportunity to give evidence and present arguments (at 6 [27]).
In his evidence to the Court the applicant stated that he went to the Tribunal without an interpreter and conceded that he read, wrote and spoke English and that in his “Response to Hearing Invitation” form he indicated that he did not need an interpreter for the Tribunal hearing (CB 65). He also agreed that he had indicated in his application to the Tribunal for review of the delegate’s decision that he did not need an interpreter. However, the applicant also said that after he had read and understood the Tribunal’s decision record it became apparent to him that elements of the Tribunal decision, based upon the evidence he had given at the Tribunal hearing, reflected a misunderstanding of what he had wanted to say. In particular he referred to the Tribunal’s quotation of his evidence where he said that after his first homosexual experience he “felt very dirty … it was horrible” and to a misunderstanding of the Tribunal’s question concerning whether he had had any partners in Australia. His evidence was that although he had tried to express himself well in English, on reflection, he had not been able to express himself as well as he had originally expected. Moreover, he said that on occasions the Tribunal member spoke quickly and he had had to guess at some of the words which she used. In cross-examination the applicant conceded that he had believed that he would be able to give evidence at the Tribunal hearing without the need for an interpreter and that he had completed his protection visa application all in his own hand although a student friend of his had assisted him with what to write.
Unlike the situation in Singh's case, in these proceedings no transcript of the Tribunal hearing was put before the Court. As a result the only evidence before the Court as to the conduct of the Tribunal hearing is what is found in the Tribunal's decision record and in the oral evidence given by the applicant in these proceedings. As to the former, no suggestion emerges that there was any difficulty in communication between the Tribunal and the applicant; there is not even a reference to the applicant's lack of reliance on an interpreter. If there had been any question whatsoever as to the applicant's ability to communicate effectively in English, it is to be expected that the Tribunal would have made some reference to the issue in order to show that an issue which might potentially invalidate the hearing had been considered and properly addressed. The fact that no reference of any sort was made by the Tribunal to the applicant's language skills leads me to the conclusion that the Tribunal believed that no communication issue was presented by the applicant or his particular circumstances.
In his evidence to the Court the applicant said that the following exchange occurred between him and the Tribunal:
Because before the hearing started, I asked the Tribunal can you speak slowly? And slowly please, because my English not really good for – to understand very clearly. And the Tribunal said, “Yes, I try to use the simple English and I try to speak not very fast.” Yes.
As to whether the invitation to the hearing was not a real and meaningful one by reason of the applicant's alleged inability to express himself in English, it is not insignificant that in the two forms he submitted to the Tribunal the applicant said that he did not need an interpreter. Of greater significance is the Tribunal’s apparent satisfaction that the applicant was capable of expressing himself during the course of the Tribunal hearing. Further, it is implicit in the evidence the applicant gave to the Court that he did not ask for an interpreter when he was at the Tribunal hearing. This factor is significant given that in his evidence the applicant said that although he had believed he did not require an interpreter at the hearing, in fact the process was harder than he had expected. That is to say, on his evidence, the applicant became aware during the course of the Tribunal hearing that his English language skills were not what he thought they had been. But he does not say that the Tribunal shared his concerns and he does not say he asked for an interpreter.
That being so, no miscarriage of a discretion under s.427(7) is demonstrated by the Tribunal's failure to exercise the power which that sub-section gives it.
However, that does not dispose of this asserted ground of review. The applicant's evidence was that he thought the Tribunal member had understood what he had tried to say and, based on that belief, he did not make any complaint during the hearing. Indeed, it appears that the applicant's concern arose only as a result of the reliance by the Tribunal in its decision-making on the applicant's evidence that after his first sexual encounter he “felt very dirty … it was horrible”. Notwithstanding that the applicant's evidence was that he received the Tribunal's decision on 28 March 2007 and filed his application commencing these proceedings on 19 April 2007 he did not raise the question of poor communication skills until the hearing on 6 August 2007. In this regard, the applicant said that when he used the word “dirty” what he had intended to say was that he felt guilty or felt bad and that he understood the word “horrible” to mean “very very difficult” this being the sense in which he believed he had used it in his protection visa application for where, in answer to question 40, he said, amongst other things, that:
My life of last six months in Mongolia was very horroble [sic] and difficult. (CB 19)
In Singh's case, their Honours held that if an applicant can comprehend and articulate English sufficiently well to enable him or her, in a real sense, to give evidence and present arguments in English to the Tribunal, the requirements of s.425(1) will have been satisfied (at 6 [28]).
It was apparent during the course of his evidence to the Court, which was given partly directly by the applicant and partly through an interpreter, that the applicant did have English language skills. He answered several questions without the assistance of the interpreter and, on one occasion, made a reasonably lengthy submission on an issue.
Even though the Tribunal might not have been aware of it, if the applicant was, in fact, unable to communicate adequately then the Tribunal will not have discharged its obligations under s.425(1). It is for the applicant to demonstrate to the Court that, indeed, his language skills were not up to the task required of them for the purposes of the Tribunal hearing. Given that no transcript of the Tribunal hearing has been placed before the Court, the only evidence upon which the Court can draw to make a finding on this issue is the evidence which has already been referred to in these reasons.
In my view, the applicant has not demonstrated that he was unable to comprehend and articulate English sufficiently well to enable him to give evidence and present arguments in English to the Tribunal. Indeed, his evidence to the Court rather suggested the contrary.
The applicant also alleged in his evidence that the exchange between him and the Tribunal concerning whether he had had any “partners in Australia” laboured under a misunderstanding between him and the Tribunal as to what a “partner” was. The applicant said that he understood the question to refer to a companion rather than to a sex partner. However the applicant says he may not have understood the Tribunal’s questions, he nevertheless did address the issue of whether he had had sex, including casual sex, since coming to Australia and whether he had been in a relationship of some duration or personal commitment.
In such circumstances it cannot be concluded that the applicant was unable to comprehend the Tribunal’s questions on these issues or to provide answers of sufficient proficiency.
To the extent that the applicant asserts that the Tribunal breached its obligations under s.425, that allegation has not been made out and no jurisdictional error is demonstrated in relation to this asserted ground of review.

Conclusion

Jurisdictional error in the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 2 November 2007