SZLSW v Minister for Immigration & Anor
[2008] FMCA 498
•14 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 498 |
| MIGRATION – RRT decision – Pakistani applicant claiming persecution by government narcotics agents and fundamentalist Islamic group – disbelieved by Tribunal – no error in failure to obtain translation of foreign language documents tendered by applicant – no other jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424(1), 424(2) |
| Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 SZJHK v Minister for Immigration & Anor [2007] FMCA 248 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 |
| Applicant: | SZLSW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3778 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 14 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Adam |
| Counsel for the First Respondent: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3778 of 2007
| SZLSW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in September 2007 without a proper visa. At the airport, he was taken into immigration detention, where he remains. It appears that the immigration authorities had information from their counterparts in Thailand, concerning his acquisition of a boarding pass to enter the flight to Australia. It also had information suggesting that he came to Australia under arrangements made by his brother, whom he had met in Thailand, and who had recently acquired permanent residence in Australia after making refugee claims.
After he was taken into detention, the applicant lodged an application for a protection visa assisted by a solicitor appointed under the Department of Immigration’s application assistance scheme. His application for a visa was lodged on 20 September 2007, and was accompanied by a statement in which the applicant set out the history upon which he claimed protection against return to Pakistan.
The applicant claimed to have grown up and worked in Peshawar, and “around a year ago” to have become a member of a community non‑government organisation which he named as “L…”. In that organisation he claimed to have “started doing various social work in the community”, to discourage the planting of narcotic plants and to work against drug use. He claimed to have become the general secretary of this organisation in July 2007.
He claimed that in August 2007 he was approached by officers from the government narcotics agency, and to have met them on several occasions. They attempted to induce him to become involved in trafficking in drugs, but the applicant refused. As a consequence, he claimed that he was threatened with death. He then left his home and slept at friends’ houses until he was able to leave Pakistan, which he claimed to have done on a “fake passport”.
In a second statement forwarded to the Department on about 28 September 2007, the applicant narrated a further history which he said he had forgotten to include in his first statement. This was that he had been forced to leave the area of his family’s tribe, as a result of having been beaten by members of an Islamic group, “A…”, in September 2006, after being accused of working for narcotics agents against the drugs industry in that area. He claimed that “A” is “an organization that settles disputes in the area. They are a fundamentalist Islamic faction who is fighting with other such groups in the area”. He claimed also to fear members of that group if he returned to that area in Pakistan.
The applicant forwarded to the Department a document which purported to be a certificate of registration of the organisation “L” on 31 July 2007, and also proof of his educational achievements, but no other corroboration of his claim.
A delegate refused the application on 11 October 2007, after interviewing the applicant on 8 October 2007. The delegate had put to the applicant the information which had been received in relation to the applicant’s travel from Thailand to Australia, including information suggesting that his travel had been arranged by his brother. The applicant denied what was put to him, and said that he did not recognise the picture of the person said to be his brother. The delegate formed the view that the applicant had not been truthful nor forthright about his claims, and that there were “numerous inconsistencies, omissions and contradictions”. The delegate was not satisfied that the applicant was a credible person, and considered that he had fabricated his claims to create a profile of a refugee.
On appeal to the Tribunal, the applicant was assisted by a different lawyer, who presented submissions and a further statement to the Tribunal. In this, the applicant repeated his claim to have joined the organisation “L”, and to have “started organising youth convocations in order to bring awareness among the people of the region, particularly the youth against the menace of the drugs”. He also claimed that “I also came into direct notice of Taliban (“A…”) who mainly fund these activities through the sale of drugs and local weapons”. He claimed to have been once beaten and his house destroyed by these “Islamists”.
The applicant’s solicitor framed the applicant’s case before the Tribunal on the basis that he belonged to a particular social group comprising “anti‑drug campaigners”, and also that the Taliban would perceive the applicant to be “anti‑Taliban and will persecute him for his imputed political opinion or his imputed religion”.
The Tribunal received evidence from the applicant at a hearing held by it on 6 November 2007, which appears to have lasted for nearly three hours. The applicant was subsequently sent the tapes of that hearing, but has not presented a transcript to the Court.
According to the Tribunal’s description of the hearing, the applicant gave clearly contradictory evidence concerning his travel arrangements, and whether he had met his brother in Thailand. He also claimed that his brother had been previously involved in the organisation “L”, prior to his departure from Pakistan and three or four years before his own involvement in that organisation. According to the Tribunal, it put various concerns to the applicant concerning his claimed association with the organisation.
In relation to his claim to have been pressured to assist narcotics agents in their drug trafficking, the applicant gave what the Tribunal thought was a different account to the details given in his statements to the Department. The Tribunal drew the applicant’s attention to the inconsistencies.
The Tribunal also took evidence from the applicant concerning his claimed persecution by the Muslim group “A”. It told the applicant that it had been unable to find any information about such a group on the internet. The applicant claimed that the Pakistan government created such organisations because “they wanted the world to see that they were doing something about terrorism when they arrested or killed members of those same organisations”. The Tribunal questioned the applicant about his claims to have suffered harm at the hands of this group.
Following the hearing, the Tribunal forwarded to the applicant and his solicitor a letter repeating the concerns which had been discussed with the applicant at the hearing. This included in relation to the applicant’s claimed membership of “L”:
Membership of “L”
You claim that you were the general secretary of “L” and were active in trying the spread the anti‑drug message in his community. As a result you were approached by the police who tried to recruit him as a drug dealer. When you refused, they threatened to kill him. You were unable to provide sufficient particularised details of his activity with “L” to satisfy the Tribunal that you were involved. The Tribunal questioned you as to why you became involved in that particular organisation and you claim that his brother was a leader of that organisation. However neither you, nor his brother in his original Protection Visa application mentioned your brother’s involvement in “L” prior to the hearing. This was despite you claiming that you “reactivated” “L” because its previous leadership had fled the country because they had been persecuted. Your involvement only began several years after his brother’s departure from Pakistan. The Tribunal put to you that it found it difficult to accept that you [were] involved in the organisation, or that your brother was involved in the organisation or that you had ever been leaders of that organisation as the story surrounding your involvement and your inability to provide sufficient particularised details of his activity led the Tribunal to believe that the story had been fabricated in order to support a refugee claim.
The Tribunal also put to you that it was unable to find any information about the organisation on the internet and was unable to contact it on the telephone numbers provided. The Tribunal put to you that this may lead it to find that the organisation did not in fact exist. You assured the Tribunal that it did.
The letter also referred to the Tribunal’s concerns about the applicant’s claimed harm at the hands of members of “A”, including by putting to him:
“A”
You claim that members of “A”, a radical Islamist group beat you, burnt your house and told you not to return to your village on pain of death. The Tribunal put to you that it had been unable to find any information on “A” on the internet despite many hours of searching. The Tribunal put to you that if “A” was involved in beatings and killings then it would expect that there would be some information about it available on the Internet. You gave an increasingly fanciful story about the group being set up in secret by the government as an explanation as to why no information was available. The Tribunal asked you if you could have been referring to a group called “A‑al” and you claimed that the group that beat you was called “A”. The Tribunal put to you that it could not be satisfied that such a group existed at all.
The letter also put a number of other matters to the applicant, and concluded:
Please indicate to the Tribunal if you want to respond or comment on these issues of concern at a further hearing or in writing by 13 November 2007. If you wish to respond in writing, please indicate to the Tribunal the additional time you require to formulate your response. If you wish to respond or comment at a further hearing, the Tribunal will inform you of the earliest suitable date.
The applicant, through his solicitor, indicated that he wished to respond by way of attending a second hearing, and the Tribunal arranged for that hearing to be held on 28 November 2007. The applicant attended. He was given the tapes at the end of the hearing, but has not presented a transcript to the Court. The Tribunal did not set out a detailed account of what happened, but in the course of its reasoning it referred to the evidence given by the applicant in response to the Tribunal’s letter.
On 4 December 2007, the Tribunal handed down a decision affirming the delegate’s decision. It appears that the copy of the decision which was handed down did not contain the Tribunal member’s corrections made to the last page before she signed it, but the Tribunal subsequently issued a corrigendum which deleted a passage from that page. No point is now taken in relation to this, and I do not consider that the change made by the Tribunal was material.
Under the heading “Findings and Reasons”, the Tribunal addressed the elements of the applicant’s claims. It also arrived at a conclusion on his general credibility, particularly in the light of the difficulties facing his evidence about his travel from Pakistan. It said:
The Tribunal is not satisfied that the applicant did not fabricate the account of his experiences in Pakistan with the anti narcotics force and an extremist Islamist organisation in order to support a claim for protection in Australia. The Tribunal further finds that the applicant’s account of his departure from Pakistan and his arrival in Australia is inherently implausible to the extent that it cannot be believed.
For the reasons set out above, the Tribunal does not accept the present applicant is a witness of truth. The Tribunal is not satisfied that any of the applicant’s material claims to invoke protection obligations in Australia are true.
In relation to the applicant’s claimed involvement in the organisation “L”, the Tribunal referred to his evidence claiming a previous involvement in that organisation by the applicant’s brother, and to the applicant’s inability to “provide sufficient particularised details of his activity” which “led the Tribunal to believe that the story had been fabricated in order to support a refugee claim”. This had been put to the applicant at the first hearing and in the Tribunal’s letter. The Tribunal referred to the applicant’s response at the second hearing, and said:
At the second hearing he provided the Tribunal with another copy of the organisation’s registration. The Tribunal pointed out that this did not necessarily prove that the organisation existed as the document could be fabricated, but even if it did exist, it did not corroborate his claims that he was the general secretary of the organisation.
The Tribunal put to the applicant that the fact that neither he nor his brother had mentioned his brother’s prior involvement in “L” gave the Tribunal little confidence that his claims in relation to his involvement with the organisation, or even its existence were true. The Tribunal finds that the document described as the certificate of registration is not reliable evidence of the facts in it; and even if it is, the Tribunal is not satisfied that either the applicant or his brother were or are members or leaders of the organisation or had any role in its activities.
In relation to the claimed approach by narcotics agents to the applicant in August 2007, the Tribunal referred to its “overall concerns about the implausibility of the applicant’s account”. It referred to the applicant’s evidence to the Tribunal hearing in which he referred to the previous Tribunal’s decision concerning his brother, who had made a similar claim. It was not satisfied that the applicant had been approached by narcotics agents, nor was it satisfied that the applicant was of any interest to them.
In relation to the applicant’s claimed fears of the Islamic group “A”, the Tribunal referred to evidence given by the applicant which “gave an increasingly fanciful story about the group being set up in secret by the government”. It also referred to the evidence given by the applicant at the second hearing in response to this concern. It said:
At the second hearing the applicant provided the Tribunal with some untranslated newspaper articles in Pashto which he claimed referred to the group called “A”. The interpreter confirmed this was the case.
The existence of the group does not however satisfy the Tribunal that the applicant was targeted by this group whilst he was in Pakistan. His accounts of the meeting and his beating were vague, lacking in particularised detail and unconvincing and did not satisfy the Tribunal that the incidents he claimed happened, or if they did, that they happened for the reasons claimed. Despite prompting, the applicant was unable to provide additional particularised details of the incidents to satisfy the Tribunal that the incidents he described actually occurred. He was unable to verify that his house had in fact been burnt down nor did he mention that he fled to [location] with his mother in previous written statements either to the department or the Tribunal. The Tribunal finds the applicant’s account unpersuasive and is not satisfied that the applicant was beaten or had his house burnt and his life threatened by “A” or any other radical/extremist Islamist group.
The Court Book contains very poor reproductions of documents which appear to be the untranslated newspaper articles. There was no translation of these documents in English given to the Tribunal by the applicant, nor is a translation before the Court in support of the present application. As I shall indicate, the major contention now made is that the Tribunal itself should have obtained a translation of these documents.
The Tribunal’s decision also addressed issues of relocation and State protection, but I need not describe these parts of its decision, since they were not material to its ultimate conclusion.
This rested upon its view of the applicant’s credibility. The Tribunal ultimately concluded that it was “not satisfied that the applicant faced persecution in the past or that he faces a real chance of being persecuted now or in the reasonably foreseeable future” if he returned to Pakistan in relation to a matter protected by the Refugees Convention.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration by the Tribunal. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s history should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s original application made claims that procedures under the Migration Act 1958 (Cth) were not observed in good faith, that the Tribunal’s decision was not “reasonably capable of reference to the decision making power given to RRT member”, and that the Tribunal “deprived me of Natural Justice”.
No particulars of these arguments were given with the application, but the applicant filed a written submission which makes a number of criticisms of the Tribunal’s reasoning. Essentially these concern the merits of the Tribunal’s conclusions, but they also contain a criticism of the Tribunal for not making enquiries itself in Pakistan into the history of the militant group “A” and other circumstances.
There is a weight of authority that the Tribunal is not obliged to conduct investigations to obtain information to support an applicant’s refugee claims (e.g. Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18], Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at [15], Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). I consider that the points made by the applicant in his written submission fail in the light of these authorities. I am not persuaded that there was any matter which the Tribunal was obliged to investigate in the exercise of its discretion to do so, as is argued in the written submissions.
The applicant today was assisted by counsel, who sought to give some refinement to the applicant’s argument. He addressed an amended application, which contained one ground:
The Refugee Review Tribunal failed to comply with s 424 of the Act in that:
Particulars
a)The Tribunal Member requested and got information that it considered relevant. The Tribunal considered such information in relation to questioning the applicant’s credibility;
b)The Applicant produced to the Tribunal the information about the existence of the organization called “L” and the religious group “A”.
c)The Tribunal Member failed to have regard to that information, or to consider its relevance to the credibility of the witness;
d)The Tribunal Member did not consider or give weight to the matters which were supportive of the claims, but only material which was contrary to the applicant’s claims.
Section 424(1) and (2) of the Migration Act provide:
424Tribunal may seek additional information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.
Section 424(3) then provides formalities in relation to an invitation under s.424(2), and further requirements are set out in s.424B. In the present case, in my opinion, the Tribunal did not purport to issue an invitation to the applicant under s.424(2) and, as I understood counsel’s submissions, this was not submitted.
Counsel submitted that the Tribunal’s invitation for comments in its letter dated 8 November 2007 involved the Tribunal “getting information that it considers relevant” within s.424(1), being the foreign language newspaper articles and the certificate of registration of organisation “L”. It was then submitted that the Tribunal had failed to “have regard to that information in making the decision on the review” as required by the second sentence of s.424(1), particularly, as a result of it not obtaining a translation of the articles.
However, in my opinion, the letter from the Tribunal did not involve the ‘getting of information’, as envisaged by s.424. The letter was no more than an invitation to the applicant to respond, whether by volunteering further evidence or not, to concerns which the Tribunal raised with the applicant. A similar view of a similar letter was taken by Nicholls FM in a decision which was relied upon by the applicant (see SZJHK v Minister for Immigration & Anor [2007] FMCA 248 at [27]).
In SZJHK, Nicholls FM found a different jurisdictional error on the part of the Tribunal, when it failed to obtain a translation of a Korean language document which was given to the Tribunal after the member had signed its decision and before it was handed down. The member looked at the document without a translation, and made a file note in which the member recorded that he was “satisfied that the Korean text contains no new information or claims”. As Nicholls FM pointed out, the member was actually in no position to be satisfied that the Korean text contained “no new claims” and, in that circumstance, his Honour appears to have concluded that the Tribunal failed to exercise its jurisdiction, since it was possible that the Korean document may have contained refugee claims which had not previously been put forward.
I do not consider that his Honour’s judgment rests upon the proposition that the Tribunal is generally required to obtain translations of foreign language documents which it is given by an applicant, as was submitted by counsel to me. As Nicholls FM pointed out, the previous longstanding position was referred to by Moore J in S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [49]:
49I finally deal with the contention that the Tribunal failed to afford the applicant procedural fairness first by not securing translations of a newspaper article and the brother’s letter and secondly by not providing the applicant with a copy of the Reuters article and giving him an opportunity to comment on it. Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother’s letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable.
In the case before Nicholls FM, it was not considered by his Honour that there was a failure of procedural fairness of the sort referred to by Moore J and in previous authorities. It was therefore not necessary for his Honour to consider the implications of s.422B of the Migration Act, which contains an exclusion of the requirements of the natural justice hearing rule which would not have applied to the cases referred to by Moore J.
I also can put this question aside in the present case. This is because, in my opinion, it is clear that natural justice was accorded to the applicant in relation to his presentation of the untranslated newspaper article. Certainly I am not persuaded otherwise on the evidence before me.
In the passage I have extracted above from the Tribunal’s reasoning, it referred to the applicant putting forward the untranslated documents at the second hearing in support of the proposition that these articles “referred to the group called ‘A’”. That is, he suggested that they contained a reference to “A” which confirmed that it existed. The Tribunal noted that the interpreter “confirmed this was the case”. On this description of what happened at the second hearing, the proposition which the applicant wished to draw from the untranslated newspaper articles was fully presented to the Tribunal, with the assistance of an interpreter.
There is no evidence before me that there was anything else in the articles which the applicant relied upon. In those circumstances, the gist of what the applicant wished to draw from the articles was put to the Tribunal, and I do not consider that any obligations of fairness required it to take the matter any further, in particular, by itself obtaining a translation or suggesting to the applicant that he should himself present a translation.
I form that view in a context where all the procedures of the Tribunal which had been explained to the applicant, and to his solicitor, had drawn clear attention to the need for any documents in a foreign language to be provided to the Tribunal with a translation, if their contents were relied upon. Unequivocal statements to this effect appeared in the form of application to the Tribunal (see Court Book 93), in the acknowledgment of the application (see Court Book 98), in the two letters of invitation to attend hearings (see Court Book 109 and 157), and in the multilingual pamphlet which was sent to the applicant on both occasions (see Court Book 112 and 160). In my opinion, it must have been notorious or apparent to the applicant’s advisors, if not to the applicant, that the Tribunal expected the applicant to present translations of documents if he relied on their contents.
For these reasons, I have found no evidence of any unfair procedure in relation to the untranslated documents in the present case. I therefore do not need to consider whether a breach of procedural fairness, if it had occurred as argued, would have survived s.422B so as to provide jurisdictional error.
Counsel’s alternative submission was that the Tribunal failed to have regard to information which the applicant presented at the second hearing. This also must fail, in my opinion.
The submission that the Tribunal failed to take into account the second copy of the organisation “L’s” registration cannot stand in the face of the Tribunal’s explicit discussion of this document in its statement of reasons, in the passage which I have extracted above.
The submission that the Tribunal failed to take into account the applicant’s evidence that the newspaper articles gave corroboration to the existence of a group called “A”, does not succeed for the same reason. As I have indicated above, the evidence before me is that the applicant told the Tribunal the information which he wished to draw from the untranslated newspaper articles. This was confirmed by an interpreter, and the Tribunal took it into account expressly in its discussion I have extracted above.
In the light of these findings, the contention that the Tribunal “did not have regard to this information” amounts to an argument on the merits of the Tribunal’s reasoning in relation to that information, as does the criticism that it did not “give weight to the matters which were supportive of the claims”. As I have shown, the Tribunal did address whether these pieces of evidence supported the applicant’s claims, by considering whether they overcame its concerns about the credibility of his own evidence as to his relevant history. In my opinion, it was open to the Tribunal to arrive at the view of those pieces of evidence which it explained.
I also do not consider that its discussion of this evidence shows that it closed its mind to relevant evidence when it arrived at its decision. I can find no evidence that the Tribunal closed its mind to evidence favourable for the applicant at a point where it was required to keep its conclusions open. In effect, such a submission contends that the Tribunal’s decision is vitiated by an apprehension of bias of the sort referred to in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425. However, the fact that a Tribunal in its ultimate conclusions put aside pieces of evidence presented as corroboration, does not prove that the Tribunal closed its mind to the evidentiary weight of the material before it reached that conclusion.
In the present case, the Tribunal put a concern to the applicant at the first hearing and in its letter about the absence of corroboration of the existence of “L” and “A” found by it in its internet researches. However, this provides no evidence of a closed mind. Nor does the fact that it did not itself pursue further enquiries, particularly in the absence of any statutory obligation to conduct such enquiries. As I have indicated above, the Tribunal gave the applicant opportunities to respond to its concern as to absence of information available on the internet, both at the first hearing and in response to its letter and at the second hearing. Affording the applicant these opportunities does not, in my opinion, suggest that it addressed the applicant’s refugee claims with a closed mind. Indeed, in my opinion, it shows the contrary.
On all the evidence, I am not persuaded that any of the particulars of the ground presented in the amended application are made out. Nor am I persuaded by counsel’s oral submissions today that the Tribunal’s decision is affected by jurisdictional error. I must therefore dismiss the application.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 22 April 2008
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