SZLPN v Minister for Immigration - [2009] FMCA 1011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPN v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1011

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group and political persecution in India – applicant not believed – no reviewable error in the Tribunal decision – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424, 424A

SZLPN v Minister for Immigration and Citizenship [2008] FMCA 1434

Applicant:

SZLPN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1534 of 2009

Judgment of:

Driver FM

Hearing date:

21 October 2009

Delivered at:

Sydney

Delivered on:

21 October 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1534 of 2009

SZLPN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 9 June 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background facts relating to the applicant’s claims and the Tribunal decision on them are conveniently summarised in the Minister’s written submissions filed 9 October 2009. I incorporate as background in this judgment, with minor amendments, paragraphs 2 through to paragraph 8 of those written submissions:
The applicant is a citizen of India who arrived in Australia on 28 March 2007. On 5 April 2007 he applied for a protection visa. He claimed that he was a member of a scheduled caste and a member of the Bahujan Samaj Party. He wrote that he had been refused employment and beaten for reason of his caste and threatened and beaten because of his party membership. The police did nothing to help him. After he had been involved in a caste-related protest, the police took the applicant to the police station, beat him and warned him not engage in any further protests. Subsequently, he was threatened by members of Shiv Sena, attacked by another group, and started receiving regular threats.
On 9 May 2007 a delegate of the Minister refused to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.
On 9 October 2007 the Tribunal decided to affirm the delegate’s decision. That decision was quashed pursuant to a writ of certiorari issued by this court and the Tribunal was required to determine according to law the application for review of the decision of the delegate. The Tribunal was reconstituted for the purpose of that review.
After some difficulty, the Tribunal held a hearing at which the applicant gave evidence and presented arguments with the assistance of an interpreter requested by him.[1] Following the hearing, the Tribunal sent the applicant a letter inviting him to comment on information [CB 227]. The applicant replied to the letter, indicating that he was trying to get information from India, asking for an extension of time within which to reply, and for a copy of the hearing tapes [CB 325]. The Tribunal supplied the hearing tapes [CB 327], but declined to grant an extension of time [CB 326]. The applicant sent nothing further to the Tribunal. On 9 June 2009 the Tribunal made a decision to affirm the delegate’s decision [CB 330].
[1]The interpreter was the same interpreter used in the proceedings before Smith FM brought by the applicant in respect of the first Tribunal’s decision: SZLPN v Minister for Immigration and Citizenship [2008] FMCA 1434; see CB 338, [42]
Tribunal’s decision
The Tribunal did not believe the applicant’s claims and found that, rather than being a member of a scheduled caste as claimed, the applicant was a member of the Ror caste and, as such had no well-founded fear of persecution [CB 349 – 352].
The reasons for which the Tribunal did not believe the applicant included the following:
a) his evidence was vague and he was unable to recall any dates: CB 348 [98];
b)there were a number of inconsistencies between the evidence given by the applicant at the hearing and his written claims: CB 350 – 351;
c)the applicant failed to give evidence at the hearing about serious attacks on him in 2005 and 2006 that were in his written claims: CB 350 [111];
d)the information in his application for a business visa to travel to Australia was inconsistent with his claims in support of the protection visa application: CB 350 [114]; and
e)the applicant had travelled to Singapore and Thailand and returned to India, suggesting that he did not in fact have any fear of harm: CB 351 [115].
For those reasons, the Tribunal found that the applicant was not a person to whom Australia had protection obligations and so affirmed the decision under review.
These proceedings began with a show cause application filed on 26 June 2009. That is the only application before the Court. It is supported by a short affidavit in which the applicant refers to his claims for a protection visa. I treated that affidavit as a submission. The application sets out two grounds which I incorporate in this judgment:
1. The Tribunal has not considered my facts, [i]t has assumed that I am not a Dalit because my cousin (from mothers side) is using the words Ror with his name. Many people in India change their family names to hide the fact that they are untouchables. Untouchables are treated very badly in India. As the Tribunal has made the decision on assumption only the decision is not based on law.
2. In para 113 the Tribunal is wrong that I did not respond. I told the Tribunal that Dalits are threatened by the higher castes and I never said that I am threatened by the lower castes. As the Tribunal has not understood my claims the decision is not based on the law.
I have before me as evidence the book of relevant documents filed on 3 August 2009.
Essentially, the applicant is concerned by the Tribunal’s rejection of his claim to be an untouchable. The Tribunal found that that claim lacked credibility. In my view, that credibility finding was open on the material before the Tribunal. The applicant also asserts that in paragraph 113 of its reasons (CB 350), the Tribunal was in error in stating that the applicant did not respond to a question. He says he told the Tribunal that “untouchables”, or Dalits, are threatened by the higher castes and he never said that he was threatened by the lower castes. The applicant asserts that the Tribunal did not understand his claims. In my view, it is the applicant who has misunderstood the Tribunal’s decision. At paragraph 113, the Tribunal states that in the applicant’s protection visa application he has said that he was threatened by higher caste Indians as he is a Dalit. The Tribunal notes that the applicant told the Tribunal at the hearing conducted by the Tribunal that he was threatened by lower caste Churas. When this inconsistency was put to him in a letter written pursuant to s.424 of the Migration Act 1958 (Cth) (“the Migration Act”), the applicant did not respond.
It is correct that the applicant did not respond to the invitation to comment pursuant to s.424A of the Migration Act other than to seek further time to respond. It should be pointed out, however, that the characterisation of the applicant as having been threatened by lower caste Churas may be dependent upon the Tribunal’s rejection of the applicant’s claim to have been a Dalit. The Tribunal found that the applicant was a member of the Ror caste, which was a higher caste than the Churas. It was in my view therefore, possible that it was the factual findings made by the Tribunal (rather than the applicant’s characterisation of the Chura a being members of a lower caste than him) that led it to conclude that the applicant had been allegedly threatened by members of a lower caste. However, I see no jurisdictional error in the Tribunal’s statement, which the applicant had the opportunity to correct, if he disagreed with it.
In relation to the two grounds in the application, I otherwise agree with the Minister’s submissions and adopt paragraphs 10 to 13 of those submissions in this judgment:
The first ground consists of an assertion of fact. The applicant says that the Tribunal was wrong to find that he was not a member of a scheduled caste but, rather, a Ror. He says that the Tribunal assumed this because his cousin used the word “Ror” with his name. He claims, without evidence, that many people change their name to hide the fact that they are untouchables.
The Tribunal’s finding that the applicant was a Ror, and not a Dalit, was based on the First Information Report he supplied which concerned his brother: CB 209. Contrary to the assertion by the applicant, that document shows that the applicant’s brother’s caste was Ror. This reveals that this ground is not only an impermissible attack on a finding of fact, but that it is based upon an unproven assertion. It should be rejected.
The second ground contains an assertion that, contrary to what is stated in [113] of the Tribunal’s statement of reasons (CB 350), the applicant did in fact respond to the Tribunal’s letter dated 4 May 2009 (CB 227). There is no basis in the evidence to support that assertion. As noted in paragraph 5 above, the only response made by the applicant to the Tribunal’s letter was to request an extension of time and a copy of the hearing tapes (CB 325).
The second ground also asserts that the applicant never said that he said that he had been threatened by the lower castes. The only evidence of what was (and was not) said by the applicant at the hearing is in the Court Book. In the Tribunal’s statement of reasons, the Tribunal records that, when asked at the hearing why he was attacked on one occasion, the applicant said (CB 340 [54]): … that he had some conflict with people belonging to the lower caste Chura and it was to monopolise labour and contractors … They threatened him. This statement was later referred to in the Tribunal’s letter of 4 May 2009 (CB 228.2).
It is not disputed that the applicant asserted conflict with Chura caste members. It is not clear whether the characterisation of the Chura as being lower caste was a statement by the applicant or a conclusion by the Tribunal. In any event the applicant did not respond to the invitation to comment on that issue.
The applicant attended today’s hearing with the assistance of a Punjabi and Hindi interpreter, who was not required, and with the assistance of a Haryanvi interpreter who attended by telephone from India, who interpreted to and from the Haryanvi language for the assistance of the applicant. The applicant raised one issue which is of significance to him. That issue is that he was not provided with a Haryanvi interpreter for the purposes of an interview with the panel advisor appointed to assist him pursuant to the Minister’s panel advice scheme. The applicant is concerned that in the absence of the assistance of a Haryanvi interpreter for the purposes of that interview, he has been put at a serious disadvantage. Indeed, he was so concerned that he decided that continuing with this hearing was pointless and he left the court room during the course of the hearing. The correspondence file discloses that Ms Geraldine Hoeben of counsel was appointed to assist the applicant pursuant to the panel advice scheme. Ms Hoeben reported to the Federal Court Registry that the applicant declined to attend an interview and that Ms Hoeben had provided written advice sent to the two addresses provided to the applicant. Initially, in the course of his submissions, the applicant denied receipt of that advice but later admitted receiving it. He said, however, that the written advice was of no assistance to him without an oral interview, with the benefit of a Haryanvi interpreter.
Also in the correspondence file is a file note by Mr Bent of the Federal Court Registry. He states:
On 10 August 2009 I spoke with Jesse, a friend of the applicant regarding the advice given by Ms Hoeben. He said the applicant did want a face-to-face conference. I consulted with Ms Hoeben and she confirmed through the interpreter (Punjabi) that he definitely did not want a meeting. She sent written advice.
The applicant would seem to have issues with language and comprehension. We cannot provide a [Haryanvi] interpreter and at the first directions he was assisted by a Hindi/Punjabi speaker.
The last statement is confirmed by the bench sheet which records that at the first court date hearing on 20 July 2009 the applicant was assisted by an interpreter in the Hindi and Punjabi languages. I note, however, that it was clear then and remains clear now that the applicant was seeking the assistance of a Haryanvi interpreter. The difficulty is that there are few, if any, Haryanvi interpreters available in this country, hence the need to arrange an interpreter by telephone today.
The applicant wrote an undated letter to this Court in which he states that he was unable to obtain an Haryanvi interpreter for the purposes of his interview with Ms Hoeben, and he requested one. He notes that he was provided with a Haryanvi interpreter at the hearing conducted by the Tribunal. The applicant repeated at some length his assertion that he was disadvantaged because he was not provided with a Haryanvi interpreter for the purpose of an interview with Ms Hoeben. He conceded, however, that it was his decision to decline to attend that interview without a Haryanvi interpreter. He conceded that he was brought to court today by a friend who spoke Haryanvi. When I asked him why his friend could not have accompanied him to the interview with Ms Hoeben, he told me that he was advised that that would not be permitted. I find that statement surprising, and I have been unable to test the accuracy of it.
I note that the application to the court and the supporting affidavit were completed in the English language, apparently with the benefit of the assistance of the applicant’s friend, Mr Wikram Singh. I suggested to the applicant that Mr Singh may be a Punjabi person, at which point he became agitated and assured me that Mr Singh was Haryanvi, like himself. I refused the applicant’s request for an adjournment of today’s hearing on the basis that the court and Ms Hoeben had done all that could be reasonably be expected of them to assist the applicant with the provision of advice in relation to his application.
There are practical difficulties in arranging interpretation facilities in certain languages, of which Haryanvi is one. The applicant conceded that he had some knowledge of Hindi and Punjabi, although he asserted that knowledge was limited. My recollection is that he did not exhibit particular difficulty at the first court date directions on 20 July 2009. I also note that the applicant understands English. During the course of the hearing I asked a question concerning his application and he responded to it in the Haryanvi language without waiting for my question to be translated into that language. The applicant, when I challenged him on that, sought to deny that that had occurred.
I conclude that the difficulty in relation to the arrangement of a Haryanvi interpreter for the purposes of the interview with Ms Hoeben is not a reason for the Court from refraining to make a decision in this matter now, and has not unfairly prejudiced the applicant in connection with his application to this Court.
I find that the decision of the Tribunal in this matter is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I so order.
Costs should follow the event, in this case. The Minister seeks an order for costs in accordance with the Court’s scale in the sum of $5,865. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in that amount in accordance with rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 October 2009