SZLMZ & Anor v Minister for Immigration
[2008] FMCA 511
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMZ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 511 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLMZ”. |
| Migration Act 1958 (Cth), ss.91X, 424, 425, 427 Migration Regulations 1994 (Cth) reg.425D |
| Applicant P19/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 SZBYR v Minister for Immigration & Citizenship [2007] 235 ALR 609 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 |
| First Applicant: | SZLMZ |
| Second Applicant: | SZLNA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3239 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Applicant: | The applicants appeared in person with the assistance of a Gujarati interpreter |
| Solicitors for the Respondents: | Ms N Johnson of Sparke Helmore |
ORDERS
The application filed on 17 October 2007 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3239 of 2007
| SZLMZ |
First Applicant
And
| SZLNA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The first applicant is a citizen of India of Gujarati ethnicity and claims to be Hindu. He was born in 1978 in Kukarwadi, Mensana. He speaks, reads and writes Gujarati and Hindi and reads and writes English. He states that he has completed twelve years of education and describes his profession before coming to Australia as the proprietor of a jewellery store. The second applicant is his wife and makes no separate protection claim but relies on her membership of her husband’s family.
The applicant ran a jewellery store and employed six Bengali men for “cleaning and shaping” jewellery. One day all six employees left with his stock which was valued at 3,300,000 rupees. The stock consisted of jewellery paid for by his customers in advance and jewellery that he had purchased with his own capital. As a result, the applicant was unable to supply the jewellery or repay his customers. He claims that two of his customers were Muslim men who pressured him to repay what he owed them. As the Muslim and Hindu communities had communal problems, the Muslim customers threatened him, his family and his property.
The applicant claims that this pressure forced him to undertake speculative activities to pay his debts.
The applicant makes a number of claims including that he was arrested for failing to repay his debts and he thought of suicide after being forced from his home. His wife was threatened with kidnap and he became depressed and addicted to alcohol and sleeping tablets.
The applicant advised the Tribunal during the hearing that he was fearful of returning to India and claimed his and his wife’s lives were at risk. They had no support in India and even his family wanted him to leave. He was making jewellery for his family and had taken 60% cash advances from them.He confirmed that the Muslims wanted to kidnap his wife in order to force him to pay money he owed. He claimes that he had been threatened many times and was beaten twice.
The applicants arrived in Australia on 22 March 2007 and applied to the Department of Immigration for a Protection (Class XA) visa on 1 May 2007. A delegate of the Minister refused to grant the visa on 15 May 2007 and the applicants applied to the Refugee Review Tribunal (“the Tribunal”) on 7 June 2007 for a review of the delegate’s decision. It is the Tribunal decision of S Roushan (reference number 071483032) that is the subject of judicial review in this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence in this matter.
An amended application was filed on 14 January 2008 in accordance with leave granted at the first Court date. It contains three grounds of review.
Consideration
At the first Court date, the first applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicants were allocated a panel advisor and the Court file indicates that they attended a conference with the advisor and received written advice.
The applicants also availed themselves of the opportunity to file an amended application. Prior to the hearing, the applicants filed an outline of submissions which in effect repeated many of the claims set out in the original visa application and made to the Tribunal at its hearing.
Tribunal decision
On 25 June 2007, the Tribunal invited the applicants to attend the hearing on 15 August 2007 to give oral evidence and present arguments in support of their application (CB 55-56). The invitation complied with the statutory requirements of s.425(1) and s.425A of the Migration Act 1958 (Cth) (“the Act”) and reg.4.25D of the Migration Regulations 1994 (Cth). On 14 August 2007, the Tribunal received a facsimile transmission from the applicants seeking an adjournment of the scheduled hearing due to medical reasons (CB 57-58). Annexed to the facsimile was a medical certificate. The Tribunal granted the adjournment and advised the applicants to attend a re-scheduled hearing on 23 August 2007 (CB 60).
The first applicant did attend the re-scheduled hearing by videolink to the Griffith police station. The Tribunal hearing was conducted with the assistance of a Gujarati interpreter. It is noted that the second applicant did not attend the hearing because of her concern that the hearing was taking place in a police station.
The Tribunal made the following observations in its “Findings and Reasons”:
a)The threats and assaults the applicant was subjected to were because his creditors wanted their money back. The intimidating tactics adopted by them had no connection with his religion (CB 76.7). The claim that Muslims sought to influence the applicants’ debtors, because of his father’s imputed role in the Godhra incident where Muslim shops were burnt by Hindus, was not accepted (CB 76.8).
b)The “essential and significant” reason behind the applicant’s experience with Muslim creditors and his fears in relation to them was his indebtedness and the fact that the creditors wanted their money back (CB 77.4).
c)The applicant’s arrest and detention had nothing to do with his religion, imputed political opinion, membership of his father’s family or any other Convention reason. The applicant’s evidence did not suggest that the police were acting beyond their authority for a Convention reason. Nor did the police succumb to pressure from his creditors to refuse him bail. The alleged mistreatment of the applicant by police was not carried out for any Convention reason and there was no evidence to suggest that it was essentially and significantly anything other than police cruelty (CB 77.6).
d)The withdrawal of family support to the applicant did not amount to persecution for a Convention reason, nor was the death of his friend a Convention related reason (CB 77.8).
The Tribunal concluded that the applicant’s claim lacked a Convention nexus and that the applicant was not a person towards whom Australia owed protection obligations (CB 78.5). Accordingly, the Tribunal affirmed the delegate’s decision.
Ground one
1. The Tribunal has wrongly [applied] the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion persecution in the applicant claims.
Particulars
a) Section 91R(1)(b) &(c) of the Act requires the persecution to be of serious harm and systematic and discriminatory.
b) The Tribunal failed for not providing more opportunities to the applicant and therefore generalize the applicants claim and therefore failed to apply correct test in accordance with section 424A(1) of the migration Act. Ref SAAP v Minister for Immigration & Multicultural Affairs HCA.
The applicant filed written submissions which contain a restatement of his claims, interspersed with submissions addressing the grounds raised in the amended application. They are general in nature and not specific to the grounds identified. The first particular of ground one refers to s.91R of the Act, in particular that there must have been serious harm to the person and systematic and discriminatory conduct for persecution to be found to exist. This complaint is raised in isolation with no reference to any aspect of the Tribunal’s decision. The written submissions also fail to canvass this issue.
I agree with Ms Johnson, for the first respondent, that the Tribunal did not find whether the harm the applicant claimed to fear was sufficiently serious to amount to persecution, or involved systematic or discriminatory conduct. It was not necessary for the Tribunal to do so because it was not satisfied on the evidence before it that any harm the applicant feared was for a Convention related reason.
The first and second grounds of the amended application also allege a breach of s.424A of the Act. The applicant claims that the Tribunal made a jurisdictional error when it denied him procedural fairness and natural justice by not following s.424A(1). He alleges that the Tribunal used certain adverse information which was not provided to him in accordance with s.424A(1). Consequently, he was denied an opportunity to respond.
The applicant states that he provided the information in his protection visa application to the delegate and that it was vital to his application. The applicant states that the information was not then disclosed to him in accordance with s.424A. That is the extent of the submissions made. The material that the applicant claims was not provided to him is not identified in either the pleaded grounds or his written submissions. Although he made oral submissions, no further light was shed on his claim that the Tribunal failed to provide the material.
I agree with Ms Johnson’s written submissions that the Tribunal decision was based on its inability to be satisfied, on the information before it, that the applicant suffered any harassment, persecution or harm for a Convention related reason. This includes the information provided by the applicant in his oral evidence before the Tribunal on 23 August 2007. Ms Johnson submits, and I agree, that these matters were thought processes of the Tribunal member and were not within the scope of s.424A(1). “Information” for the purposes of s.424A does not encompass:
the Tribunal’s objective appraisal, thought processes or determinations…does it extend to identify gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to these gaps, etc. (SZBYR v Minister for Immigration & Citizenship [2007] 235 ALR 609 at [18])
I accept that the Tribunal’s thought processes and its determinations of the applicant’s evidence were the bases of the Tribunal’s decision and the Tribunal was not required to send a s.424A letter.
Ground two
2. There was certain informations used by the Tribunal without providing an opportunity to respond. The adverse informations used by the Tribunal was not given by the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. The Tribunal did not disclose the information in accordance with s.424A(1) of the migration act.
This ground contains no particulars nor do the written submissions refer specifically to it. This ground does not in any way expand the claim in ground one or identify any specific issue. I do not believe it requires any further consideration in addition to the comments set out above.
Ground three
This ground contains no particulars but the applicant included a brief statement that the Tribunal had dealt with aspects of the applicant’s claim relating to state tolerance and his financial hardship as a result of his membership of a particular religious or social group. The applicant claims that this places an obligation on Australia to afford him protection as member of such a group. The Tribunal’s failure to recognise that social group was a jurisdictional error.
The applicant’s submissions then refer to the conduct of the Tribunal hearing. At the end of his written submissions, the applicant again submits that the Tribunal erred in looking at effective State protection. He claims that the Tribunal failed to make appropriate enquiries in relation to the “applicant’s class”.
The applicant complains that the Tribunal failed to enquire if State protection was meaningful in his particular case. In support, he suggests that the Tribunal failed to enquire about the practicality of relocation. It failed to address the issue of reasonableness and more importantly whether the applicant could relocate in a practical sense as required by the law, instead of dismissing his overall protection claim. The applicant contends that this approach failed to consider all of the elements of reasonableness with respect to relocation.
I agree with Ms Johnson’s submission that the Tribunal did not make a relocation finding nor did it consider the issue as it was not satisfied on the material before it that the applicant had a well-founded fear of persecution in India for a Convention related reason. In the circumstances, ground three cannot be sustained and should be dismissed.
New claims not raised in the amended application
Ms Johnson further submits that the applicant’s written submissions were not filed in accordance with the orders made and after the first respondent’s written submissions had been filed and served. This resulted in a number of issues not being addressed in the respondent’s submissions. I agree with Ms Johnson that much of the applicant’s written submissions repeats his claims made to the Tribunal and essentially challenges its factual conclusion. The applicant repeated that the Tribunal misunderstood his case.
The Tribunal considered whether the harm feared by the applicant was for reason of his religion, political opinion or membership of a particular social group. It found that the intimidating tactics adopted by his creditors were to force him to pay his debts and had no connection with his religion. Contrary to the applicant’s claim that the Tribunal ignored his father’s role, it did not accept that the Muslims sought to influence the debtors because of his father’s imputed role in the Godhra incident.
I agree with the submissions made by Ms Johnson that the conclusions arrived at by the Tribunal displeased the applicant but this is not indicative of a jurisdictional error.
The applicant also raised a claim that at the time of the Tribunal hearing, he became confused because the Gujarati interpreter was not accurate in interpretation. The applicant claims the interpreter did not actually interpret what he said. He states that he was a truthful witness.
The applicant also expressed his concern with the Tribunal hearing conducted by videolink to the Griffith police station in a manner similar to a police investigation. He states that this did not meet his expectation of a Tribunal hearing which should have been conducted like a Court hearing.
There has been nothing filed in the Court to support the claim that the standard of interpretation was inadequate. There is no transcript of the Tribunal hearing or an affidavit prepared by a qualified interpreter indicating that the interpretation would have led to misunderstanding by both parties. The orders made at the first Court date stated that if a transcript of the Tribunal hearing was to be relied upon, a transcript of that hearing was to be prepared and verified by an affidavit.
The applicant also had the assistance of a Court appointed panel advisor who would have advised on this issue if it had been raised. Under s.427 of the Act, the Tribunal is required to provide an interpreter when an applicant is unable to give evidence without one: VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [8]. The Tribunal has a statutory obligation under s.425 to ensure that an invitation to the hearing is “real and meaningful”: Applicant P19/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [16]. This includes providing an interpreter of sufficient skill so that the applicant is not denied his or her right to a fair hearing: VWFY v Minister for Immigration & Multicultural & Indigenous Affairs at [27].
For an applicant to succeed in such a claim, he/she must show one of the following:
a) The standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence; or
b) Errors made by the interpreter at the Tribunal hearing were material to the Tribunal’s conclusion and adverse to the applicant: Applicant P119/2002 at [17].
The material before this Court is the Tribunal’s decision record which sets out a summary of the hearing. There was no comment by the Tribunal member that the applicant’s responses to the questions asked was not forthcoming, incoherent, or that the exchanges were confusing. In the circumstances, no inference can be drawn that the interpreter service was in any way inadequate and this claim cannot be sustained.
The Tribunal hearing was held by videolink for the convenience of the applicant because he had been ill and was unable to travel. Tribunal hearings are inquisitorial in nature and are conducted in a very different manner to that of a Court conducting adversarial proceedings. It is recognised that the applicant was in a strange environment using a foreign language and a system of review with which he is not familiar.
However, the procedures were explained in material provided to the applicant by the Department and the applicant has had some assistance from an unidentified third party. The circumstances may not have been ideal, but there is nothing in the way that the Tribunal conducted its review which indicates jurisdictional error. These claims cannot be sustained and must be rejected.
Conclusion
The applicant is a self-represented litigant who appears to have been assisted by a number of different people in presenting this application. This has resulted in the application addressing a range of issues which do not directly relate to the applicant or the Tribunal decision he is attempting to challenge. Some of the issues do not appear in the decision record and are not relevant to the applicant’s actual claim for protection. The Court has been assisted by the written and oral submissions of Ms Johnson, for the first respondent, and I am satisfied that all the applicant’s issues have been addressed. The Tribunal decision does not reveal any other issue which gives rise to jurisdictional error. The application should be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 April 2008
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