SZKOG v Minister for Immigration
[2007] FMCA 1598
•24 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1598 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – citizen of Israel claiming fear of persecution on the grounds of imputed political opinion and ethnicity – where applicant claims to have been interrupted during Tribunal hearing – where applicant claims inaccuracy in translation of documents – where applicant claims that Tribunal should have made further inquiries about the authenticity of documents provided – where applicant claims that Tribunal failed to consider a claim that he feared persecution by Hamas as an alleged collaborator – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 424, 427, 474 |
| Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 SZIWK v Minister for Immigration and Citizenship [2007] FCA 168 SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 followed |
| Applicant: | SZKOG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1342 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 September 2007 |
| Date of Last Submission: | 3 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the First Respondent: | Mr Godwin |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
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 1342 of 2007
| SZKOG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of Israel, asks the court to set aside the decision of the Refugee Review Tribunal handed down on 3rd April 2007, refusing his application for a protection visa. He had applied for a visa on these grounds:
a)Imputed political opinion, on two different bases; and
b)Discrimination as an Israeli Arab.
He claims that there are three grounds for finding that the Tribunal committed jurisdictional error:
a)The Tribunal did not give enough time to answer the multiple questions asked by the Tribunal Member, who kept interrupting him while he was trying to answer.
b)The Tribunal Member was “reckless” and did not appear to be interested in considering some of his documentary evidence.
c)There was a mistake in the translation of a letter to him from his sister.
d)The Tribunal did not check the authenticity of a pamphlet which he submitted as evidence.
e)The situation in Palestine has changed for the worse since the hearing.
f)Whilst the Tribunal considered and rejected his claim to fear persecution by the Israeli authorities, it did not consider his other claim, to have been persecuted by Hamas sympathisers.
Background
The applicant is a citizen of Israel who is an Arabic Muslim. He arrived in Australia on 5th February 2006 and applied for a Protection
(Class XA) visa on 22nd September 2006. His application was refused on 14th November 2006, so the applicant applied to the Refugee Review Tribunal for a review of that decision on
14th December 2006.
The applicant submitted to the Tribunal a copy of a report from Amnesty International about the situation in Israel and the Occupied Territories in support of his case. The Amnesty Report referred to restrictions placed by the Israeli authorities on people in the Occupied Territories, including the Gaza Strip, discrimination against Israeli Arabs, and the issues facing collaborators. The term “collaborators” is applied to Arabs who allegedly assist or cooperate with Israel in ways harmful to Palestinian national security.[1] He also made a written request to the Tribunal asking that he give his evidence with a telephone interpreter in the Arabic language because he did not feel comfortable with a face to face interpreter.[2]
[1] The full text of the report is set out in the Court Book on pages 59 to 66.
[2] See Court Book page 57
The Tribunal invited the applicant to attend a hearing on 16th February 2007. The applicant replied, saying that he would attend the hearing and required an Arabic interpreter. He repeated his request to give evidence with the aid of a telephone interpreter rather than a “face to face” interpreter.[3]
[3] Court Book page 74
The Tribunal wrote to the applicant on 5th January 2007, inviting him to comment on some perceived inconsistencies in his application. This letter, headed “Invitation to comment on information”, appears to have been written in order to comply with the requirements of s. 424A(1) of the Migration Act.[4] The applicant replied in writing to that letter on 23rd January 2007.[5]
[4] Court Book page 71.
[5] Court Book page 75.
The applicant attended the hearing on 16th February and brought his Israeli passport with him. The Tribunal Member refused his request for a telephone interpreter.[6] The applicant gave oral evidence and the Tribunal asked him a number of questions about his claims.
[6] The Tribunal’s reasons for this decision are set out in the Tribunal Decision Record, see Court Book at page 103.
After the hearing, on 23rd February 2007, the applicant forwarded a letter to the Tribunal, which he said was a copy of a pamphlet that had been distributed in Israel, naming him as a “criminal” and one of a number of “spies and traitors”.[7]
[7] The text of this document is set out in the Court Book on page 106.
The Tribunal signed its decision on 12th March 2007 and handed that decision down on 3rd April. The full text of the Decision Record appears at pages 98 to 113 of the Court Book. The Tribunal was not satisfied that the applicant had a well founded fear of persecution for Convention reasons and affirmed the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa.
The Tribunal set out the applicant’s claims and evidence under three headings:
a)Claims in the primary application;
b)Oral testimony; and
c)Post hearing submission.
The Tribunal noted that the applicant had provided a statement that in early 2004 he began delivering fruit and vegetables from Palestine into Israel. This was illegal at the time. Eventually his employer asked him to transport some workers illegally from Palestine into Israel. At first he agreed, because the money was good.
After a while the applicant decided to quit because he was afraid of being caught. His employer tried to persuade him to continue, even to the extent of sending men to assault him. The applicant claimed that they were members of Hamas, the Islamic militant group. He said that they spread word throughout the Arab community in Israel that he was a spy for Israel, which made it impossible to find work.
The applicant claimed to fear that the police would suspect him to have links with Hamas. He also claimed that all Arabs in Israel were subject to racial discrimination.
The Tribunal Hearing
The applicant requested a telephone interpreter for the hearing, claiming to feel more comfortable with an interpreter on the telephone rather than in the room. The Tribunal denied his request, giving these reasons:
The applicant appeared to be fluent in English. The Tribunal noted to the applicant that his request for a telephone interpreter had been considered by the Tribunal, but that in the circumstances he had not given any valid reason that warranted the engagement of an interpreter on the telephone as opposed to one who was physically in the hearing room. The tribunal also advised the applicant that he was at liberty to speak English if he chose since he appeared fluent in English; however, it was in his interest to use the interpreter at any time that he felt he did not understand the English expression used by the Tribunal.
The Tribunal further advised him that if at any point of the hearing he felt he could not continue because of the presence of an interpreter in the hearing room, he was to inform the Tribunal immediately, and that the Tribunal would make arrangements to remove the interpreter.[8]
[8] Court Book at 103
Under the heading Oral testimony, the Tribunal Decision Record sets out the applicant’s claim to the Tribunal that he was ostracised by his friends and his life was threatened.
He claimed that the Israeli authorities wanted to arrest him because they considered him to be a Hamas sympathiser. He denied that he was a member of Hamas but said that he knew people who were.
The applicant claimed that pamphlets had been distributed in his neighbourhood urging people to identify and reject traitors and collaborators. He produced a copy of a pamphlet.
The applicant repeated his claim that he had been beaten up and his assailants had spread word that he was a collaborator and a spy for Israel. As a result, he could not find work in his community.
The applicant claimed that Jews did not want to employ him because he was an Arab. He feared being arrested if he were to return to Israel if the Israeli authorities found out that he had transported workers illegally into the country, an activity that he was aware was a breach of Israeli law.[9]
[9] Court Book at 104
The Tribunal noted that it challenged him about aspects of his claims:
The Tribunal put it to him that it does not seem plausible that the organisation he claimed to have worked for could or would have compelled him to continue trafficking in people if he was not willing to do so. The Tribunal pointed out to him that trafficking by its nature is very sensitive and delicate and requires considerable secrecy. The Tribunal noted that it seems implausible that his employer would have persisted to recruit someone who was neither willing nor wanted to continue with such deliveries.[10]
[10] Court Book at 105
The Tribunal also challenged the applicant about his claim to have been suspected to be a collaborator, noting that there was no credible evidence to support that claim. The Tribunal also stated:
The Tribunal noted to him that the letter which he claims was written by his sister from Israel only notes that the authorities suspect that he was a Hamas sympathiser in Israel. The Tribunal then put it to him that if this was the basis for which the authorities were looking for him, he has no claim as a refugee because the basis for which the authorities have an adverse interest in him is for his breach of a law of general application. He said that he has a pamphlet which could indicate that he is wanted specifically because he is considered to be a collaborator.[11]
[11] Court Book at 105
The Tribunal then, in a section headed Post hearing submission, stated that the applicant provided a note on 23rd February 2007, which he said was a copy of a pamphlet that had been distributed in his neighbourhood in Israel. The pamphlet referred the presence of “spies and traitors” in the area and mentioned a number of names, including that of the applicant.[12]
[12] A copy of this document appears at Court Book page 92 and is quoted in full by the Tribunal at Court Book page 106.
The Tribunal’s findings and reasons
The Tribunal noted that the applicant’s central claim was that he came to be regarded as a collaborator in his community because Hamas sympathisers spread rumours about him after he refused to work as a trafficker in illegal labourers into Israel. The Tribunal also noted:
On the other hand, because of his activities as a trafficker in breach of Israeli law, he is of adverse interest to Israeli authorities who would consider him to be a Hamas sympathiser for breaking the law. He also claims that as an Arab living in Israel he suffers discrimination at the hands of the Jews in Israel.[13]
[13] Court book at 107
The Tribunal dealt with these claims under three headings:
a)The claim that he is considered a collaborator.[14]
b)Claims that he is wanted as a Hamas sympathiser by the Israeli authorities.[15]
c)Claims that he suffers discrimination as an Israeli Arab.[16]
[14] Court Book at 107
[15] Court Book at 109
[16] Court Book at 110
As to the first heading, the Tribunal found that it was “more probable than not” that the applicant may have been a trafficker of illegal labourers in Israel.[17] Whilst the Tribunal noted that the applicant claimed because he stopped his work as a trafficker he was labelled as a collaborator, the Tribunal found that there was no credible evidence that supported that claim.
[17] Court Book at 107
The Tribunal found it important that the letter that the applicant claimed to have been written by his sister did not mention that he was regarded as a collaborator. Instead, the letter specifically noted that the applicant may be of adverse interest to the Israeli authorities because they regarded him as a Hamas sympathiser. The Tribunal did not accept the applicant’s explanation of this omission, being that his family would not have found it appropriate to mention that he had been accused as a collaborator because no family wanted to associate with a collaborator. The Tribunal stated:
The Tribunal does not find it plausible that if indeed the applicant was wanted at home as a collaborator on the one hand, and as a Hamas sympathiser the letter would only choose to mention his problems as a Hams sympathiser to the exclusion of his difficulties as a collaborator.[18]
[18] Court Book at 108
The Tribunal also referred to the pamphlet that the applicant provided after the hearing, naming him as a collaborator. The Tribunal placed no weight on it, stating:
The Tribunal has no way of checking the authenticity of this pamphlet. However, the Tribunal has given little weight to this pamphlet and its contents. This is because if by the applicant’s own admission, his relatives were not willing to write to him to tell him that he is wanted as a collaborator, then it is hard to understand why they would send him a pamphlet in which he is specifically named as a collaborator.
In the Tribunal’s opinion, this document does not appear credible. The Tribunal therefore has decided to place no weight on it.[19]
[19] Court Book at 108
The Tribunal was not satisfied that the applicant was perceived as a collaborator in Israel and stood at risk of persecution for that reason if he were to return to Israel and rejected that claim.
The Tribunal then turned to the applicant’s next claim, described as claims that he is wanted as a Hamas sympathiser by the Israeli authorities. The Tribunal noted that the applicant claimed that because he engaged in the illegal trafficking of labourers into Israel he was of adverse interest to the Israeli authorities, who would regard him as a Hamas sympathiser.
However, the Tribunal noted that the trafficking of labourers into Israel when the border is closed is against Israeli law, which is a law of general application. It applies to all Israelis, whether Arabs or Jews. The Tribunal stated:
Given that it is a law of general application, in the event that the Israeli authorities decided to prosecute the applicant for breaching such a law, the applicant would not be the victim of any discriminatory practise as such by the Israeli authorities. Accordingly, the applicant’s claims that by breaching the law in Israel, he would be regarded as a Hamas sympathiser, does not provide the basis for a valid claim under the Convention.[20]
[20] Court Book at 109
The Tribunal rejected the claim.
The Tribunal then went to consider the applicant’s third claim, which it described as Claims that he suffers discrimination as an Israeli Arab.
The Tribunal said that the plight of Israeli Arabs was well document:
It is known that as a result of the tensions in Israel, Israeli Arabs are subjected to specific restrictions in the country. However in the opinion of the Tribunal such restrictions do not necessarily constitute persecution in the sense envisaged under the Convention.[21]
[21] Court Book at 110
The Tribunal expressed the opinion that the circumstances of the applicant did not provide a basis that he had suffered persecution as a result of being an Israeli Arab. The Tribunal was also of the view that the applicant’s search for employment in Israel over a period of three months could “hardly be classified as indicative of a severe condition of hardship”.[22] The Tribunal, in coming to this view, considered the definition of serious harm as defined in s. 91R of the Migration Act.
[22] Court Book at 111
The Tribunal rejected the applicant’s claim that he suffered discrimination as an Israeli Arab.
The Tribunal, after having considered the evidence as a whole, was not satisfied that the applicant had a well founded fear of persecution for Convention reasons and affirmed the delegate’s decision not to grant him a Protection (Class XA) visa.
Application for judicial review
The applicant commenced proceedings on 27th April 2007. On 13th July 2007 he filed a document entitled “Ground of Appeal”. In that document he set out these grounds:
a)The Tribunal did not give enough time to answer the multiple questions asked by the Tribunal Member, who kept interrupting him while he was trying to answer.
b)The Tribunal member was “reckless” and did not appear to be interested in considering some of his documentary evidence.
c)There was a mistake in the translation of a letter to him from his sister.
d)The Tribunal did not check the authenticity of a pamphlet which he submitted as evidence.
e)The situation in Palestine has changed for the worse since the hearing.
f)Whilst the Tribunal considered and rejected his claim to fear persecution by the Israeli authorities, it did not consider his other claim, to have been persecuted by Hamas sympathisers.
The application was originally set down for final hearing on
15th August 2007. On that occasion, the applicant told the court that the interpreter who had been allocated for the hearing was the same interpreter who had acted at the Tribunal hearing. The applicant said that part of his case was that the interpreter did not speak the same dialect of Arabic, which caused difficulty for him at the hearing.
I adjourned the application to 3rd September and arranged for another interpreter.
When the matter came back to court on 3rd September, the applicant, in answer to questions from the Bench, complained that he had asked for a telephone interpreter but this request was refused. He complained that the interpreter at the hearing had made some mistakes in translation. He did not produce a tape of the hearing or a transcript of the evidence.
The applicant, in answer to a question about what he meant by “recklessness” on the part of the Tribunal member, said that the member was not interested in looking at the material that he submitted. When asked to explain, he said:
I could see it in his face.
Annexed to the applicant’s Ground of Appeal document was a copy of a letter in Arabic and a certified translation of that letter, bearing the date 11th July 2007. The applicant sought to rely on that translation, which he said was a more accurate translation of the letter from his sister. I rejected the tender of that document, as it was a document that had come into existence since the Tribunal hearing.
The applicant again stated that the Tribunal had not considered that he had a real fear of persecution by Hamas members and sympathisers.
He also said that the main issue was the pamphlet naming him and others as spies and collaborators. He claimed that the Tribunal should have asked the organisation that produced the pamphlet about its authenticity.
Mr Godwin of Counsel for the first respondent, the Minister, submitted that the Tribunal had considered the applicant’s claim that he feared the actions of Hamas members and the Tribunal’s consideration of that issue could be found in the Findings and Reasons at page 107 of the Court Book.
Mr Godwin submitted that there were two reasons why the pamphlet was not accepted:
a)It did not appear credible;[23] and
b)The applicant’s sister did not mention the allegations against him
[23] Court Book at 108
Mr Godwin also submitted that there was no duty upon the Tribunal make inquiries on behalf of the applicant about the authenticity of a document that he had submitted (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[24]).
[24] (2004) 207 ALR 12 at [43] per Hayne and Gummow JJ and at [124] per Callinan J
As to the applicant’s claim that there were mistakes made in translation or interpreting during the Tribunal hearing, Mr Godwin put to the court that the hearing lasted for two hours[25] and there were two tapes of the evidence. No transcript of evidence was produced.
[25] Court Book at 86
In addition, the applicant made a post hearing submission when he forwarded a document in Arabic and its English translation to the Tribunal.[26] He did not make any complaint at that stage that there were any errors in translation of the proceedings.
[26] Court Book at 88-91
In addition, Mr Godwin referred the court to the decision of Nicholson J in SZIWK v Minister for Immigration and Citizenship[27], where the evidence required to show that there had been a failure to provide a fair hearing under s. 425 of the Migration Act was discussed. He submitted that in this case there was no evidence of any deficiencies in translation.
[27] [2007] FCA 168 at [14]-[15]
The applicant in reply reiterated his claim that the pamphlet he had provided to the Tribunal was very strong evidence going to show that he had a well founded fear of persecution. He asked rhetorically what evidence could be stronger than a pamphlet listing his name as a person to be killed.
Conclusions
The applicant claims that there are in fact six grounds for a finding that the Tribunal decision was affected by jurisdictional error.
As to the first ground – The Tribunal did not give enough time to answer the multiple questions asked by the Tribunal member, who kept interrupting the applicant when he was trying to answer – there is no evidence to support this ground. In order to establish this ground, more than a bald assertion is needed. The applicant did not produce any transcript of the evidence of the Tribunal hearing which would have shown whether the Tribunal Member kept interrupting the applicant.
In this absence of evidence, this first ground fails.
The second ground alleges that the Tribunal Member was ‘reckless’ and did not appear to be interested in considering some of the applicant’s documentary evidence. There is no evidence to support this assertion. The applicant claims that he could tell from the member’s expression that he was not interested but the Tribunal’s decision record contains no support for that assertion. The fact that the Tribunal considered the applicant’s documents but gave little or no weight to them does not support any allegation of recklessness or lack of interest.
In the absence of evidence, the applicant’s second ground fails.
The applicant’s third ground is that there was a mistake in the translation of a letter to him from his sister. The translation was produced by the applicant to the Tribunal. The Tribunal was under no duty to make its own translation. It was of no avail to produce a further translation of the letter after the hearing and attempt to tender it in court. The document was not in existence at the time of the Tribunal hearing. Producing a further translation was no more than an attempt to obtain a further hearing of the case on the merits, which is not available on judicial review.
The applicant’s third ground fails.
The applicant’s fourth ground claims that the Tribunal did not check the authenticity of a pamphlet which he submitted as evidence.
There was no obligation on the Tribunal, either under ss. 424 or 427 of the Migration Act, to conduct its own investigation or inquiries about the authenticity of a document produced by the applicant. It is well established that these two sections are discretionary; there is no obligation on the tribunal to exercise the power given by the sections.
The fourth ground fails.
The applicant’s fifth ground claims that the Situation in Palestine has changed for the worse since the hearing. That may well be the case, but that does not demonstrate any jurisdictional error by the Tribunal.
It is an attempt at asking the court to reconsider the case on its own merits, but the court has no power to so. As Gyles J held in SZHCJ v Minister for Immigration and Multicultural Affairs[28]
Insofar as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates can only correct the Tribunal if jurisdictional error is revealed.
[28] [2007] FCA 205 at [3]
This ground does not show any error on the part of the Tribunal and therefore does not succeed.
The applicant’s sixth ground claims that whilst the Tribunal considered and rejected his claim to fear persecution by the Israeli authorities, it did not consider his other claim, to have been persecuted by Hamas sympathisers.
The fact is that the Tribunal did consider this claim in the section of its Findings and Reasons headed The claim that he is considered a collaborator.
The Tribunal noted the applicant’s claim to have been labelled as a collaborator but found that there was no credible evidence to sustain that claim[29]. The Tribunal considered the following pieces of evidence going to that claim:
a)The scars on the applicant’s hands;
b)The letter written by the applicant’s sister; and
c)The pamphlet provided with the applicant’s post-hearing submission.
[29] Court Book at 107
The Tribunal was not satisfied that the scars on the applicant necessarily corroborated the applicant’s claim to have been beaten because he refused to continue working as a trafficker of illegal workers.[30]
[30] Court Book at 108
The Tribunal noted that the letter from the applicant’s sister did not mention that he was regarded as a collaborator back in Israel.
Whilst the applicant explained at the hearing that the letter from his sister would not have found it appropriate to mention that the applicant had been accused as a collaborator because no family wanted to associate with a collaborator, the Tribunal did not accept this explanation, saying:
The Tribunal does not find it plausible that if indeed the applicant was wanted at home as a collaborator on the one hand and as a Hamas sympathiser on the other hand, the letter would only choose to mention his problems as a Hamas sympathiser to the exclusion of his difficulties as a collaborator.[31]
[31] Court Book at 108
The Tribunal considered the pamphlet provided by the applicant in his post-hearing submission which named him as a collaborator, but placed no weight on it. The Tribunal expressed the opinion that the document did not appear to be credible.[32]
[32] Ibid
I am satisfied that the Tribunal did consider all of the applicant’s claims and his sixth ground fails.
The applicant is not legally represented in these proceedings, although he had the benefit of legal advice from a barrister on the RRT legal advice panel. I have read through the Tribunal decision and supporting documents and I am unable to discern any arguable case for any other jurisdictional error not referred to by the applicant.
Whilst the Tribunal declined the applicant’s rather unusual request to give evidence with the aid of a telephone interpreter rather than with an interpreter in the same room, the Tribunal’s account of the way in which the Tribunal member dealt with the situation[33] leads to the inference that the Tribunal member could hardly have been more fair to the applicant. There is nothing in the Decision Record that shows any failure to provide procedural fairness on the part of the Tribunal.
[33] Quoted at [14] above and set out on page 103 of the Court Book
There is no evidence of any jurisdictional error by the Tribunal.
The Tribunal decision is a privative clause decision and is therefore final and conclusive. There are no grounds for any order setting aside the Tribunal decision.
The application will be dismissed. It is appropriate to consider any application for costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 September 2007
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