SZLZJ v Minister for Immigration
[2009] FMCA 341
•23 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 341 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – whether failure to make necessary findings or to apply the law – whether lack of good faith – whether findings illogical or unreasonable – whether jurisdictional error in relation to interpreter provided at the Tribunal hearing – whether actual or apprehended bias. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 |
| Applicant: | SZLZJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG364 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 November 2008 |
| Date of Last Submission: | 19 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG364 of 2008
| SZLZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal signed on 7 January 2008 and handed down on 22 January 2008.
The applicant, a citizen of Uzbekistan, arrived in Australia in March 2007 and applied for a protection visa. He claimed he had been persecuted and feared persecution for reason of his political activities opposed to the trafficking of young girls for prostitution. In his protection visa application the applicant claimed that initially he did not realise he was fighting against “corrupt authorities” and that by the time he realised that profits from trafficking went all the way up to the government, he was “tortured, threatened, and facing death”. He claimed he was persecuted by criminal trafficking organisations and also by local administration and police after he made complaints to a human rights committee and law enforcement authorities.
The applicant also claimed that he had disseminated copies of poems he had known were “forbidden”, but that he had no idea that this might attract “such mistreatment”. He claimed his life was endangered and that the authorities had threatened him with imprisonment.
In a further statement submitted to the Department by letter dated 18 May 2007 the applicant elaborated on his claims. He claimed that he had been detained, beaten and tortured by the militia and warned not to continue his investigations and agitations on behalf of victims of trafficking and that his wife was also threatened.
The applicant claimed that he nonetheless spoke with the Samarkand Human Rights Centre which could not provide any material assistance and with a named journalist who promised to investigate the claims. He claimed the militia then searched his home, tortured and beat him, and threatened his wife and that the militia searched his workplace where they found copies of a number of poems banned by the authorities that he had been distributing. He claimed that his employer advised him to leave his hometown and not to come back to work, which he did. He claimed the militia were searching for him.
The application was refused by a delegate of the first respondent who considered most of the applicant’s claims to be highly implausible, contrary to publicly available country information, lacking in credibility and fabricated for the purposes of obtaining protection.
The applicant sought review by the Tribunal. His representative provided written submissions, country information and comments from the applicant. On 5 September 2007 the applicant attended a Tribunal hearing conducted with the assistance of a Russian interpreter as had been requested in the review application and in the response to hearing invitation. Further submissions and information were provided after the hearing.
On 15 November 2007 the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) inviting him to comment on information including inconsistencies in his claims, issues about the plausibility of aspects of his claims and country information relevant to the credibility of his claims and to provide further information. The applicant responded through his adviser on 29 and 30 November 2007. On 7 January 2008 the Tribunal affirmed the delegate’s decision.
The applicant sought review by application filed in this Court on 18 February 2008. In that application he indicated that he required an interpreter and that he spoke “Uzbek, limited Russian”. He attended a directions hearing on 20 March 2008 with the assistance of a Russian interpreter. The Registrar noted that the applicant required an interpreter in Uzbek (or Russian if an interpreter of Uzbek was not available). The matter was listed for hearing on 25 August 2008. On that day an Uzbek telephone interpreter was provided. However the interpreter told the Court that there seemed to be a difference between her dialect and that of the applicant and that the applicant spoke Tajik. The hearing was adjourned on the basis that the Court would try to provide a Tajik interpreter and also (out of an abundance of caution) a Russian interpreter.
On 7 November 2008 the hearing resumed with a telephone interpreter who spoke Tajik and a Russian interpreter present in Court. The applicant told the Court that he would like to use the Russian interpreter because he understood Russian. The hearing was conducted with the assistance of the Russian interpreter. Nonetheless, at the Court’s request, and as was explained to the applicant, the Tajik interpreter stayed on the telephone, so that if at any time the applicant did not understand or felt that he wanted to use Tajik he would have an opportunity to do so. He did not do so.
The applicant filed and relied on an English language transcript of the Tribunal hearing and written submissions of 20 August 2008 and 25 August 2008. After the hearing the parties were given the opportunity to file further written submissions, as the issues raised in the applicant’s oral submissions varied from those canvassed in his application and written submissions. Both parties filed further supplementary written submissions.
Tribunal decision
In its reasons for decision the Tribunal outlined the claims made by the applicant at various times, the country information submitted by him, his response to the s.424A letter, his submissions and those of his adviser. It summarised his claims as follows:
The Applicant claims fear of persecution on (sic) Uzbekistan for Convention-related reasons of “political opinion”. He claims he has attracted an anti-government profile in Uzbekistan due to his albeit amateur efforts to combat the trade of trafficking in women and girls for prostitution in Uzbekistan and abroad.
The Applicant claims he naïvely tried to bring sex trafficking to the attention of authorities in his home city of Samarkand and was threatened by them as a result. He claims he learned that the authorities are tacitly and actively involved in sex trafficking. He claims he felt so committed to the issue and so indignant at the threatening response from the authorities that he contacted named human rights workers and agencies. He claims he decided to flee Uzbekistan when two arguably more prominent human rights workers went into exile or disappeared. He claims his fear of persecution is convention-related because, although he has attracted a profile for opposing officials’ complicity in a purely criminal trafficking trade, their threats against him are the threats of an authoritarian state seeking to silence those who question the impeccable conduct of its officers and servants. He says that in this way the harm he fears is harm for reasons of imputed “political opinion”.
The Applicant claims that in his depressed state, closer to when he left Uzbekistan, he let a friend give him a book of poems for consolation. He claims the book is banned in Uzbekistan and that it was discovered by authorities searching his possessions for evidence to use against him in relation to his opposition to government complacency or complicity in the sex trafficking matter.
The Tribunal commenced its findings and reasons by observing that the applicant’s adviser had:
… interpolated a number of her own experiences, emotions and observations into her submissions in the present matter, seemingly to suggest that perceived factual gaps and perceived incongruities and discrepancies should be perceived as understandable in the circumstances. Whereas the adviser’s professional distance from the matter has not always been clear, the Tribunal has taken her submissions into account.
The Tribunal stated that it had considered various “characterisations” of the applicant in submissions, such as his claimed nervousness, lack of education and the fact that he spoke Russian as a second language. However the Tribunal found that the applicant’s claims about involving himself in the fight against sex trafficking in Uzbekistan were “unsupported and cumulatively damaged by inconsistencies”.
The Tribunal found that the applicant’s claims about the circumstances in which he first became aware of the trafficking of women in Uzbekistan did not sit with independent country information (including material he had provided) in particular about government information and rhetoric and warnings to people against being caught by sex traffickers.
The Tribunal also found that the applicant’s claims about working in a “knowledge vacuum” at the same time as he was working on behalf of families “living under great fear” were unconvincing. It did not accept the applicant’s claims that he had not suspected that the authorities in Uzbekistan were involved in and benefited from the sex trafficking trade.
The Tribunal found the applicant’s claims about proceeding to work on behalf of affected women and families unconvincing because “he claims to have remained ignorant of the dangers of campaigning on their behalf even as they warned him not to do so”. It found that he conveyed a “highly unconvincing impression of having been working in ignorance of the dangers of approaching the authorities in the matter if (sic) sex trafficking”. The applicant’s claims about how he persuaded families to let him proceed with his campaign on their behalf were said to be implausible “because of the great fear he attributed to them and because of the ease with which he changed their minds in the circumstances”. The Tribunal did not accept the applicant’s account as to “how or why he pressed on with his campaign, out of sensitivity for affected women, in spite of their, and/or their families,’ pleas for him not to do so”. It observed that he claimed to be ignorant of the authorities’ corrupt involvement in the trade even when he was working with a lawyer he had approached for help.
The Tribunal also found that the applicant’s evidence that he approached the Ayol Centre (an NGO in Uzbekistan concerned with women’s issues) was unreliable. It had regard to the fact that he gave inconsistent information about its address (and referred to visiting it on three occasions in 2006 at an address it had not been at since 2003). While the applicant had provided an explanation as to how the wrong address appeared in evidence to the Tribunal (which he attributed to an error of his adviser) the Tribunal gave this explanation no weight. It accepted that the applicant was aware of Ayol through a brochure, but did not accept on the evidence before it that he approached or met with anyone at Ayol. The Tribunal recorded that upon being informed that the applicant’s adviser had been in telephone contact with Ayol, it gave the applicant an opportunity to provide evidence of his own contact with Ayol. It considered this to be a not unreasonable request in the circumstances, particularly since the applicant’s adviser had succeeded in contacting the Ayol office. However it found the applicant’s response through his adviser to the Tribunal’s request amounted to “a list of presumptions as to why one should not contact Ayol for such information, or as to why it would be pointless to do so”. The Tribunal gave such explanations no weight, on the basis that a person whose claims were truthful “would have tried (successfully or otherwise) to obtain evidence from Ayol about his contact with that organisation, rather than give excuses as to why it would be pointless to try”.
The Tribunal also considered the applicant’s written and oral evidence about his meeting with a Mr Kurbanov of the Samarkand Human Rights Centre (Ezgulik). The Tribunal accepted that the particular Mr Kurbanov identified by the applicant existed at the relevant time and that he was involved with Ezgulik at a regional level. However the Tribunal found the applicant’s evidence about his meeting with Mr Kurbanov to be inconsistent. The inconsistencies in the applicant’s evidence at the hearing about the circumstances and location of this meeting were set out at length in the Tribunal account of the hearing.
While the Tribunal gave consideration to the “caution and gingerliness” that individuals in Uzbekistan might display about proposed meetings on controversial and/or politically sensitive topics and accepted that meetings might not always take place in offices but perhaps in streets, parks, cemeteries or other places, it found that the applicant’s evidence about his meeting with Mr Kurbanov was inconsistent. It did not accept on the evidence before it that the meeting took place.
The Tribunal accepted that the claimed subsequent meeting with the dissident Mr Karimov could conceivably have occurred in the period claimed, but found that this claim was “very highly dependent on” the credibility of the applicant’s claims about his meeting with Mr Kurbanov, which it did not accept had occurred. The Tribunal did not accept that the conditions in which the applicant was referred to Mr Karimov arose or that the occasion on which Mr Karimov’s telephone number was given to him occurred. It was not satisfied that the applicant met with Mr Karimov as claimed.
The Tribunal then found that while any one of these findings “on its own” might not be a matter of overwhelming or significant concern in relation to the applicant’s credibility, viewed together these factors left it “unsatisfied as to the credibility of the Applicant in the matter of the sex trade, his attempts to campaign against it, his attempts to assist affected families, his efforts to engage their trust in spite of his ignorance and his lack of experience, and the response on the part of the authorities to his efforts.”
The Tribunal did not accept on the “unsupported and inconsistent evidence” before it, that the applicant was an activist seeking justice for women affected by sex trafficking, that he was an activist or dissident in the matter of the sex trafficking trade or that he was imputed by the authorities, or by sex traffickers in Uzbekistan, to be a dissident in the matter of that trade. Hence it did not accept that he was detained, tortured or generally harassed by the authorities as claimed, that he hired or became involved with lawyers or that he wrote to the authorities about the sex trafficking problem.
The Tribunal then considered the applicant’s claims in relation to the collection and distribution of banned texts in the context of his claim that he had been subjected to months of harassment and threats from the authorities before he received the banned texts.
In his statement of 18 May 2007 the applicant claimed that after his investigations into sex trafficking and his last meeting with Mr Karimov, the authorities had searched his home and had seized information, including details of human rights contacts. He claimed that in September 2006 the authorities had taken him away, tortured him and threatened to kill him and that thereafter he gave up the campaign against sex trafficking and thought that the authorities’ interest in him had waned. He claimed he received poems of Parfi that he did not realise were “prohibited” and started to give copies to people at work in October 2006. The applicant had claimed in his protection visa application that he disseminated banned poems knowing they were “forbidden”, but that he did not know he would get into so much trouble for doing so. He claimed that someone at his work notified the authorities, that they searched his workplace while he was away on business and seized 50 copies of the poems.
The Tribunal recorded its discussion with the applicant at the hearing about the book(s) of poetry and his claim that a friend gave him a copy of Parfi poems published as “Political Prisoner” (because he liked romantic things such as reflections on nature), after he told the friend of his problems with the police over sex trafficking and police corruption. It recorded that these poems were banned in Uzbekistan and stated:
When the Tribunal questioned whether or not the Applicant knew, at the time he possessed a copy of the Parfi poems, that they were banned, he did not commit to an answer either way. He said the poems were not political poems, but simply poems about “mankind” and about life in Uzbekistan. However, he also said that the actor warned him to “be careful” with the book. He thus claimed to know, at least, that the poems were controversial and/or sensitive enough to get him in trouble with the authorities. He said the actor gave him the poems to help calm him and that they helped him sleep. He emphasised that they were not political poems and that they were all about a love of nature. He said they were really romantic.
The Tribunal had raised its concern about the inconsistency between the applicant’s claim to the Department that he did not realise the poems were prohibited and his contrary oral and written evidence to the Tribunal that he did know the poems were banned. It had also raised the discrepancy between his claim he was given a copy of the poems to help him through a period of personal difficulty and his claim that he had 50 copies stored at his workplace, which suggested intended discrimination on a relatively large scale. It expressed concern as to why the applicant would have 50 copies of a banned book stored in a location like his workplace at a time he was allegedly trying not to attract negative attention from the authorities. The Tribunal also raised with the applicant his limited knowledge of the poems, information about the political title and nature of the poems and the fact that some discussed prostitution and sex trafficking, issues in which he claimed to have a deep involvement, contrary to his claim that the poems were merely romantic poems appealing to his love of nature.
In its reasons for decision the Tribunal referred to independent information suggesting that the collected poems were not just nature poems, but were “political poems specific to the social and political problems in Uzbekistan”. It noted that while the applicant claimed to have read the poems “for comfort, he never once suggested to the Tribunal that they refer to the same issue on which he himself was crusading: the issue of sex trafficking. It was not apparent to the Tribunal from the Applicant’s evidence at the hearing that he had read the book of poems called Political Prisoner, or at least personally engaged with them in a way that a crusader against sex trafficking might reasonably be expected to have done.”
Given its rejection of the applicant’s claims about his experiences in the matter of the sex trade, the Tribunal did not accept that he was under stress arising from such experiences and that this provided a reason why he accepted copies of Parfi poems from a friend. The Tribunal stated that it was not satisfied as to a “significant aspect of the Applicant’s claimed motivation” for accepting copies of poems collected under the title “Prisoner of Conscience” or “Political Prisoner”.
The Tribunal also found that the applicant had given conflicting evidence as to whether or not he knew at the time that the poems were banned. It stated:
The Applicant sought to explain his lack of awareness of the banned status of the poems by saying that the poems did not appear to have any political content from his point of view. This is beside the point. Similarly, the adviser’s translations of poems that were not evidently from the relevant collection, only appeared to argue that those poems were not, or not particularly political, from a reasonable point of view. Again, this is beside the point, because the Applicant at different stages in the history of this application gave inconsistent evidence as to whether or not he knew these poems were banned. In some claims, the Applicant said he was told by his friends to be very careful what he did with the poems. In some of his claims, he said he knew the poems were banned. At other times he said he did not know they were banned simply because he felt them to be romantic. His evidence is inconsistent and the inconsistencies are unresolved.
The Tribunal was not satisfied as to the credibility of the applicant’s claimed action on receiving copies of the poems. In particular it was not satisfied that at a time when the applicant claimed he was trying to avoid further harassment from the authorities, he started or prepared to distribute banned material like the poems (or extracts from a Makhmud novel as claimed), even to close friends. Nor was it satisfied that in the claimed circumstances of fearing potential pursuit by the authorities, the applicant left his store of banned material in his workplace where it was found by the authorities in his absence. It found that this claim lacked credibility, even allowing for the adviser’s claim that the applicant was “a simple man with little experience of political activism”.
The Tribunal did not accept that the applicant kept or distributed copies of extracts from a banned Makhmud novel, given that it did not accept that he was an activist and that he claimed he was trying to avoid trouble with the authorities. It found that his claimed efforts to distribute extracts from a banned novel were not consistent with a fear he described as overwhelming and overriding.
Nor was the Tribunal satisfied on the evidence before it that the applicant knew, or knew of, the Parfi collection of banned poems from having read them. On the evidence overall it did not accept that the applicant collected or distributed banned or politically sensitive literature in Uzbekistan or that he would be suspected of doing so.
The Tribunal was not satisfied that the authorities viewed or would view the applicant as a person who had been involved in any dissident activity at all. Nor was it satisfied on the information before it that a dissident profile might be attached to him for failing to return to Uzbekistan after having come to Australia as part of a national delegation. It was not satisfied on the evidence before it that the applicant faced a real chance of Convention-related persecution in Uzbekistan. It found that his claimed fear of persecution was not well founded and that he was not a refugee.
This application
The application contains three generally expressed grounds as follows:
1.No specific findings were made regarding nexus to the Convention
2.RRT did not heed difficulties with interpreting, did not apply tests of State protection and persecution
3.RRT did not act in a good faith
In submissions the applicant also took issue with the conduct of the hearing and aspects of the Tribunal’s findings in relation to inconsistencies in and appraisal of his evidence. The manner in which the applicant elaborated on these claims appeared to raise an allegation that the Tribunal’s decision was affected by actual or apprehended bias by reason of a combination of what occurred in the hearing and a contention that certain of the Tribunal’s findings were in material respects illogical, unreasonable or otherwise perverse. I have considered the grounds in the application and the other matters raised by the applicant.
“Convention nexus” issue
The first ground is that the Tribunal made no specific findings regarding “nexus to the Convention”. This ground does not establish jurisdictional error. The Tribunal clearly appreciated that, as it stated in describing the claims and evidence, the applicant claimed to fear persecution on the basis of actual and imputed “political opinion”. He claimed that he attracted an anti-government profile due to his efforts to combat sex trafficking and that the authorities’ threats against him were the threats of “an authoritarian state seeking to silence those who question the impeccable conduct of its officers and servants” given his opposition to government “complacency or complicity” in sex trafficking.
However the Tribunal rejected the applicant’s claims based on its lack of satisfaction as to his credibility. Given that the Tribunal rejected the underlying claims and the factual basis for the claimed fear, it was not necessary for it to address specifically the issue of whether, had it accepted such claims, the necessary Convention nexus would have been made out.
The Tribunal addressed the applicant’s claims about his involvement in the fight against sex trafficking in Uzbekistan, about the authorities’ discovery of his collection and distribution of banned or politically sensitive literature when searching for evidence to use against him in relation to his opposition to government involvement in the sex trade and the possibility that he would be perceived by the authorities as a person involved in dissident activity or with a dissident profile. However the Tribunal did not accept that the past events had occurred as claimed by the applicant or that he would be perceived as being involved in any dissident activity or as having a dissident profile. It set out findings material to its appraisal of the evidence and its reasons for credibility findings and rejection of the applicant’s claims. In those circumstances it was not obliged to make findings on each and every matter of fact that is now asserted to be objectively material to its decision (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] and [68]). Unless affected by jurisdictional error, the Tribunal’s assessment of the applicant’s fears by reference to the credibility of his claims to have suffered past persecution provided a proper basis for its findings that his prospective fears of persecution in relation to those matters were not well founded (see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 575 – 7). It was not necessary for the Tribunal to make findings as to whether, if the applicant had had a well-founded fear of persecution, it would have been for one of the five reasons specified in the Refugees Convention.
State protection and persecution
The next ground is that the Tribunal did not apply the tests of state protection and persecution. This general contention is not particularised. The Tribunal set out the elements of the definition of refugee in the Refugees Convention and considered those elements that had to be considered given its factual findings. The Tribunal also referred to the law in relation to persecution and s.91R of the Migration Act 1958 (Cth). Its reasons do not reveal any misunderstanding or misapplication of the law in that respect. It was not necessary for it to address the issue of whether the harm experienced or feared by the applicant amounted to persecution (if that is the applicant’s complaint) because it did not accept that past events had occurred as claimed or that the applicant would be perceived as having been involved in any dissident activity or that a dissident profile would be attributed to him (the bases on which he claimed to fear persecution).
Similarly, because the Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in Uzbekistan, it was not obliged to make findings as to whether the protection offered by the Uzbekistan authorities would be adequate (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323).
Interpretation/interpreter “difficulties”
The other aspect of ground two of the application is a contention that the Tribunal “did not heed difficulties with interpreting”. The applicant filed a copy of a transcript of the English spoken in the Tribunal hearing and written submissions. He contended that the hearing was affected by his insufficient knowledge of Russian which was said to be “evident” from the transcript. I have considered whether any failure to comply with s.425 of the Migration Act or other jurisdictional error is apparent arising out of the conduct of the Tribunal hearing with the assistance of a Russian-speaking interpreter.
I note first that the copy of the transcript filed in Court bore handwritten annotations and was highlighted in part. Such “additions” were drawn to the attention of counsel for the first respondent. They are considered as submissions for the applicant (albeit apparently made by some undisclosed person assisting him).
In his protection visa application, in response to the question “If you are called for an interview, will you need an interpreter?” the applicant responded “Yes”, and indicated “Russian” in response to the question “In which language(s) and dialect?” notwithstanding that in response to the question “Which languages do you speak, read or write (including English)?”, the applicant indicated, Tajik, Uzbek and Korean in that order and described himself as belonging to the Tajik ethnic group. The interpreter’s declaration in Part B of the protection visa application refers to the interpreter’s competence in English and Russian.
In his application for review by the Tribunal, in response to the question about whether he needed an interpreter (to which he responded yes), the applicant indicated “Russian” and did not indicate any dialect. Similarly, in the response to hearing invitation, the applicant again indicated that he needed a Russian interpreter. The applicant had the assistance of a registered migration agent in connection with his visa and review applications.
The Tribunal provided a Russian interpreter for the hearing. The applicant attended the hearing with his migration agent. After an initial explanation of procedures and a summary of the definition of refugee in the Refugees Convention the Tribunal asked the applicant “Do you understand me so far? Do you understand what I have been saying so far?” to which the applicant responded “Yes” (transcript p.2). The hearing continued.
No issue was taken in relation to or the use of a Russian language interpreter or the competence of the interpreter either during or after the Tribunal hearing. The hearing record indicates that the hearing started at 11am. Just before adjournment of the Tribunal hearing for a lunch break the applicant’s migration agent sought to make “one suggestion”. She stated to the Tribunal (transcript p.13):
Migration Agent: … You phrase your questions as a well educated and well read person.
Tribunal Okay.
Migration Agent: His Russian is not good at all, as the Madam Interpreter can testify.
Interpreter: Yeah. I agree.
Migration Agent: I had troubles to understanding him. So I think the problem might be because he doesn’t understand the well-phrased questions. Being pressed and being confused between a few languages, because he speaks Korean (indistinct) Russian, and now he learns English. He might just not understand the essence of the questions.
Tribunal: All right. Yeah.
In particular the migration agent suggested that the applicant may not have understood Tribunal questions (apparently about what “girls” who were being trafficked had said to him) because words like “girls” and “women” were totally different. The migration agent asked the Tribunal to “try to phrase [questions] in a more simplified way”. The Tribunal responded “Okay” (transcript p.14), explaining that he had used the word “girl” because it had been used in the applicant’s submissions to describe the people being trafficked. The Tribunal member then made the point that he believed that “at this stage we have two different versions of what the girls said [to the applicant]” and continued (transcript p.14):
Tribunal: … I mean, that’s what we’re going to need to sort out. And one of the things you can do in the adjournment is work through that with your client. I’ll hear further submissions from you on it. …
Migration Agent: Just can see that he’s like in a fog. He answers, and he might not understand the whole construction of a sentence.
There was no suggestion that an interpreter in some other language, let alone a particular other language, should be provided or was necessary. No issue was taken when the hearing resumed with the manner in which the Tribunal phrased its questions or with the interpretation, except that in relation to the “introduction” Mr Kurbanov was said to have provided to Mr Karimov, the migration agent suggested that there was a semantic issue “to Russian person” (sic) about whether a personal introduction required the physical presence of the person making the introduction (transcript p.27). The Tribunal indicated that it had not regarded the applicant’s evidence in this respect as inconsistent (transcript p.27).
Towards the end of the hearing the Tribunal summarised its concerns, including about the credibility of some of the applicant’s claims. It gave the applicant time to make written submissions. The interpreter then volunteered (transcript p.28):
I don’t know whether I am in a position to say it now, but his Russian is very primitive, to tell you the truth, and that’s why it seems to me – because for him, sometimes next to impossible to understand the logic of … statements he will make.
The migration agent, when asked if she would be able to brief her client about issues to be covered in further submissions indicated (transcript p.28) that “He’s a very simple person. He doesn’t understand and I cannot --”.
The Tribunal then confirmed with the migration agent that she communicated with the applicant in Russian. She said: “we speak pretty basic; pretty simple” (transcript p.28). The applicant was given the opportunity to make post-hearing written submissions through his adviser.
There is no suggestion in these proceedings that the interpretation to or from Russian or English was in any way incorrect and there is nothing in the transcript to suggest that the interpreter made errors at the hearing material to the conclusions of the Tribunal adverse to the applicant (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] ff). Nor was it suggested that the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving evidence in the sense discussed in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38] – [42]. Indeed it was not contended that the Tribunal erred in failing to provide the applicant with an opportunity to participate in a hearing with the assistance of an interpreter in a language other than Russian.
The applicant’s contentions are that the Tribunal should have had regard to the fact that the hearing was conducted through a language that was not his first language. He claimed that he was not accorded a fair hearing or given a “meaningful” opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review as required by s.425, in circumstances where his Russian was “not good” and the Tribunal used complex language and asked confusing questions, particularly in the way it raised apparent inconsistencies with him. It was also submitted that in assessing the applicant’s evidence the Tribunal failed to take into account the difficulties that the applicant experienced in the conduct of the hearing.
The applicant requested a Russian interpreter and was given a Russian interpreter. There is no evidence that the applicant at any time sought the provision of an interpreter in a language other than Russian while his application was before the Department or the Tribunal. His protection visa application was translated into Russian. He was represented throughout his application for review, including at the Tribunal hearing, by a migration agent who told the Tribunal that she spoke Russian and communicated with the applicant in Russian. No objection was taken to the competency or the provision of a Russian interpreter during or after the hearing, notwithstanding the remarks of the migration agent about the fact that the applicant spoke only basic Russian and the interpreter’s opinion that his Russian was primitive. Had there been a concern about the adequacy of a Russian interpreter or about the applicant’s ability to communicate in Russian, the applicant (through his migration agent) had the opportunity to raise this in the detailed submissions made after the Tribunal hearing (cf Perera at [43]).
On the other hand, in his application for judicial review the applicant indicated that he spoke Uzbek and some limited Russian. He subsequently clarified that he spoke Tajik. It may be that an applicant (perhaps through lack of knowledge on his or her part or even that of an adviser), might assume that an interpreter in his or her first language could not be provided by the Tribunal and hence might not ask for an interpreter in that language. Indeed, there may be cases in which an interpreter could not be located in Australia in a particular language or dialect. The applicant’s nomination of a language, that is said not to be his first language, on the hearing response form would not mean that a failure to comply with s.425 could not be made out if the evidence before the Court were such as to establish that communication or comprehension difficulties at the Tribunal hearing meant that he was not in fact afforded a meaningful opportunity to give evidence and present arguments. Indeed that would be so whether the hearing was conducted in English or through an interpreter (see Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 77 -78 per Kirby P and Perera at [34] – [35] per Kenny J). However for the reasons that follow, the evidence before the Court in this case does not establish a failure to comply with s.425 or any lack of procedural fairness in the sense of actual or apprehended bias.
It is necessary to determine on all the material before the Court whether the applicant was denied a reasonable opportunity to ascertain and respond to the issues that arose at the hearing that were determinative of his claims (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). The English language transcript of the hearing does not assist the applicant in this respect. Rather it suggests that he was afforded such an opportunity. In particular, it appears from the transcript that the applicant was generally responsive to the Tribunal’s questions, in the sense that his answers were generally coherent and related to the matter in issue, albeit some of his answers could be characterised as evasive when inconsistencies or apparent inconsistencies in his evidence were exposed or he was otherwise challenged by the Tribunal The transcript does not reveal evident confusion or illogicality in exchanges such as to give rise to an inference of communication and comprehension difficulties. There is no suggestion that the interpreter mistranslated the appplicant’s responses. Notwithstanding the general concern expressed by the interpreter about the applicant’s “primitive Russian”, the evidence of the applicant’s answers as translated into English is not such as to indicate that his Russian was so primitive (or, indeed, that he was so “simple” as his agent suggested) that he did not understand the Tribunal or that he was effectively prevented from giving evidence or the evidence he wished to give at the hearing.
The migration agent raised with the Tribunal member the manner in which he phrased his questions, in particular in relation to the attitude of the girls to the applicant going to the police. The Tribunal member responded (and in that sense took into account such “difficulties”) by rephrasing questions after the adjournment, including repeating a question which initially he said he would not repeat. The Tribunal also gave the applicant the opportunity to make further written submissions.
The Tribunal also accepted the migration agent’s submission as to the matter of semantic difference in relation to whether the applicant said Mr Kurbanov himself introduced the applicant personally to Mr Karimov.
The applicant claimed that he felt extremely nervous at the hearing because of fear, that his state was aggravated by his very limited command of Russian and that he could not understand questions the way they were asked. He claimed that his hearing was affected by his insufficient knowledge of his Russian. These general claims do not establish jurisdictional error in the absence of identification of the manner in which such claimed matters impacted on the conduct of the hearing.
In written submissions the applicant referred to several aspects of the hearing. First he suggested that while the difference between the words “banned” and “not allowed to be published” was detrimental to him in the Tribunal decision, it made no difference in the Uzbek language. There is no evidentiary support for this contention.
The applicant’s general submissions that he had great difficulties expressing himself and that matters the Tribunal regarded as inconsistencies were not in fact inconsistencies do not establish this ground. His disagreement with the Tribunal’s findings about inconsistencies in large part take issue with the merits of the Tribunal decision. The identified inconsistencies were not inexplicable (cf Perera in relation to inadequate interpretation).
In further written submissions the applicant claimed that he was not vague or evasive at the Tribunal hearing, but that he simply did not understand some questions and could not answer as he would have answered in Uzbek. However, again, there is no evidentiary support for these claims in the evidence before the Court, including the English language transcript of the Tribunal. This material is not such that it can be inferred that the applicant lacked comprehension or communication skills to such an extent that he was not afforded a meaningful or real opportunity to participate in the hearing.
The “annotations” to the transcript suggest that the Tribunal’s questioning of the applicant about his claims that copies of a book of poems were in his possession at a time when he was in trouble with the police and that they were seized by police at his workplace was too complicated. Issue was taken with these issues being presented this way to an “uneducated person with limited Russian.”
The Tribunal raised with the applicant the circumstances in which he received a copy of poems by Parfi. It is notable that after the applicant confirmed that the poems were those of a famous poet, he volunteered “But his poems were not published because they would not allow for it to be published” (transcript p.5). The Tribunal then asked “Banned?” and the applicant replied “Yes, they were banned.” There is no evidence of misunderstanding or miscommunication in this respect.
The Tribunal asked the applicant a number of questions about why he would accept a copy of such a dangerous book at a time he claimed he was afraid of being scrutinised by police. The applicant acknowledged that the person who gave him the book told him to be careful with it and that it was called Prisoner of Conscience. When the Tribunal suggested that this sounded like a book of political poems, the applicant responded (transcript p.6): “Actually, they are not of a political nature, they were more about the life of the mankind and about the life of the people in Uzbekistan, and actually those poems, they are devoted to the three best writers who worked in Uzbekistan.”
The Tribunal then asked the applicant if he knew as soon as he received it that the book was a “political hot potato” (transcript p.6). The applicant responded “Yes, I knew about it but I couldn’t refuse taking it, I couldn’t say no to taking it, because I really liked some powerful poems in this book” (transcript pp.6 – 7). The Tribunal continued (transcript p.7):
Tribunal: Now, you wrote to the Immigration Department that the poems were seized by these police who searched your workplace. You said – you said at the time you had no idea that these – that this literature was a problem to the government. Today you’re saying you did know.
Applicant:You know it’s not – it’s not like a political threat. They’re just very good poems, and they describe the life of an everyday person.
Tribunal:That’s a – yeah, that’s a subjective argument for the poems at this moment. But you received the book at the time that you were told to be very careful about. It was called Prisoner of Conscience, it was banned, and you were in trouble with the police. Okay. Now, when you wrote to the Immigration Department you said, “Well, yes, it was banned and I was in trouble with the police, but I didn’t know the book was a problem until then.” The implication is, “If I’d known that this presented some kind of, you know, problem for the regime of Uzbekistan I wouldn’t have had them there in the workplace or at home. I wouldn’t have held onto them.” I am understanding from what you’ve said to the Immigration Department was - - -
Interpreter: Excuse me, please.
Tribunal:“Why would I have them there? I didn’t want the police to find that kind of thing if it was a problem, if it was going to make my life worse.” But now you’re telling me that you knew this was a banned writer and that you were warned that it was a dangerous item you were being handed. Whether or not free thinking people think the poems are just romantic and nature loving and human kind loving, that may be true, I might find that myself. But what we both know and what you knew at the time is that the police don’t think that. Okay? And the actor certainly warned you that this was a potential problem. So I’m concerned as to why – why you said to the department that you didn’t know these poems presented some kind of problem for the government. I’ve heard you say today that you disagree with the government as to the content of the poems. But that’s not the same as being unaware of the government’s views. Would you like to respond to that?
Applicant:You know the poems are really of romantic nature, and after the years of independence in Uzbekistan they treat this work in the normal way.
Tribunal:Well, if they treat it in the normal way then finding it wouldn’t be a problem for you. But you claim that it was. Well, I’ll consider all that. I’d like to move away to other parts of your case. Okay? …
There is some complexity in the Tribunal’s discussion of this issue but the exchange does not, in context, demonstrate that because of his claimed language difficulties the applicant was unable to understand or respond meaningfully to the Tribunal’s questions.
The applicant also contended that his lack of understanding was an explanation for the fact that he twice repeated the Tribunal’s question about why girls he was trying to help told him not to go to the police. The context in which this occurred is considered below in relation to the ground of bias. However, as discussed further below, the repetition of this Tribunal question is not such as to demonstrate a lack of understanding on the part of the applicant such as to establish that there was a failure to provide a meaningful opportunity to attend a Tribunal hearing.
The claims about what was said to be the applicant’s “primitive” Russian and whether the Tribunal had regard to his language difficulties in its findings do not establish a breach of s.425. The fact that in the Tribunal hearing the interpreter agreed with the migration agent that the applicant’s Russian was not good and at the end of the Tribunal hearing described it as “very primitive”, while indicating that there may be an issue about the applicant’s participation in the hearing (as the Tribunal acknowledged in its reasons for decision), does not of itself establish that the applicant’s Russian-language ability was such that he could not meaningfully participate in a hearing conducted using a Russian-language interpreter. There is no evidence before the Court (for example in the form of expert evidence) as to what the applicant said in Russian or to suggest that what he said in Russian differed from the interpreter’s account to the Tribunal in English. The applicant’s translated responses to Tribunal questions are not such that it can be inferred that he had a lack of ability to communicate or to comprehend Russian such as to establish a breach of s.425.
These issues are discussed further below in relation to the claim that the Tribunal decision was infected by actual or apprehended bias, as they appear to be part of the submission that the Tribunal failed to take into account difficulties the applicant experienced in the hearing.
The evidence before the Court does not establish that the applicant was prevented from giving evidence or the evidence he wished to give, or that he was otherwise denied the opportunity required under s.425 of the Act by reason of the interpretation services provided or “difficulties with interpreting” as contended. This ground is not made out.
Good faith
The third ground in the application is that the Tribunal did not act in good faith. The applicant subsequently claimed that certain of the Tribunal’s findings were in material respects illogical, unreasonable or otherwise perverse, as well as apparently asserting apprehended bias.
The unparticularised claim as to a lack of good faith is not made out. As Allsop J stated in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 207 at [24]:
… Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the tribunal or officer in question. Finn J in Daihatsu Australia v FCT (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase ``bona fide” involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34]–[36]. It is unnecessary for me to express a view on the conclusion his Honour reached in that case after a careful analysis of the facts. To the extent it was submitted before me that his Honour's approach was one which enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker, I reject that submission. The principles applied by his Honour were, with respect, correct.
Findings in relation to credibility are a matter for the Tribunal. As discussed further below, such findings were open to the Tribunal on the material before it for the reasons it gave. Without more, bad faith is not made out by reference to such findings, notwithstanding that alternative inferences may have been available (see Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 and SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749). Indeed mere error or irrationality or poor decision making does not of itself demonstrate a lack of good faith. As the Full Court of the Federal Court stated in SBBS (at [46]) “errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness” (see also SBAU v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 70 ALD 72 at [31] and [68] per Mansfield J). Further as the Full Court stated in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [8]:
… The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in the case of the RRT, affirming the rejection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty.
Relevantly, their Honours indicated in SBAN at [10] that bad faith may manifest itself in the form of actual bias in the sense of “a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. It is something more than a tendency of mind or predisposition: Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [71] – [72].” However, as discussed below, in this case neither actual nor apprehended bias is made out.
Actual and/or apprehended bias
The applicant made a number of contentions in relation to the conduct of the hearing and the Tribunal findings that raise the issues of actual or apprehended bias. I have considered these matters individually and cumulatively. The issues raised about the hearing refer to extensive extracts from the transcript. I have also considered the conduct of the hearing and the review as a whole.
Proof of actual bias arising from prejudgment requires an examination of the decision-maker’s subjective state of mind. As Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.
In contrast the test for apprehended bias is whether a hypothetical reasonably informed, fair-minded lay person might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided, as considered by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]-[31].
The applicant submitted generally that the Tribunal “tried to catch him” with complex language and questions at the hearing that were said to have been asked in a way that confused him. This contention is not made out.
The Tribunal questions, while at times complex, were based on matters arising out of the applicant’s extensive written submissions. It is well established that where credibility is in issue the Tribunal “will necessarily have to test the evidence presented - - often rigorously” (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [30]). As Gleeson CJ, Gaudron and Gummow JJ in stated Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [30]: “the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question”.
Considered from the perspective of the reasonably informed lay observer it has not been established that the Tribunal tried to “catch” or “confuse” the applicant. The Tribunal was not obliged to explain its reasoning process to the applicant in the course of the hearing (Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at [54] – [58] and [85] – [86]). In fact on numerous occasions it raised its concerns with him about apparent inconsistencies in his evidence.
While the applicant claimed that he was confused, the transcript does not support an inference that he was confused because of the conduct of the Tribunal or the language used, to such an extent that he was not able to take advantage of the opportunity to give evidence and present arguments in relation to dispositive issues as required under s.425 of the Act or that the manner in which the Tribunal questioned him was indicative of actual bias or such as to give rise to an apprehension of bias on the part of the Tribunal.
Generally, the applicant appeared to be able to respond to questions asked. When he claimed that he was stressed or that he needed a break he was allowed an adjournment (transcript p.12). The Tribunal raised issues of concern and invited further written submissions. The Tribunal endeavoured to explain the basis for its concern about inconsistencies in the applicant’s evidence. The Tribunal’s questioning of the applicant about his evidence falls short of establishing a closed mind or an appearance of a closed mind on the part of the Tribunal.
As Sundberg J pointed out in Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312 at [12] – [14]:
In order to establish apprehended bias on the part of the tribunal, it must be demonstrated that a fair-minded and informed person might reasonably apprehend that it might not have brought an impartial mind to bear on its decision: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [14]. In R v George (1987) 9 NSWLR 527 at 536, Street CJ, with whom Yeldham and Finlay JJ agreed, considered the import of the word “reasonably” in that formulation:
The reasonable apprehension of bias, which is the core of the test, turns very much upon the adjective “reasonable”. It is not enough that there be some apprehension of some uninformed and uninstructed person.
To the same effect are the observations of Priestley and Clarke JJA in S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 at 379–80; 11 IPR 97 at 117 - 19.
The hypothetical fair-minded and informed person would be aware of the nature of the tribunal’s review functions and proceedings, and that the tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant. That follows from s 425 of the Act …
…
Such a preliminary view does not establish apprehended bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; 77 ALD 23; [2003] FCA 872 at [23] and SZBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 965 at [15] – [16].
An informed and instructed hypothetical person would also know that the tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596; 144 ALR 567 at 595 – 6; 48 ALD 481 at 507 - 8; [1997] HCA 22. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa. If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16] – [18]. The tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [30].
The applicant also contended that he had great trouble expressing himself under the pressure of what he perceived to be complex language and questions asked in a way that he found confusing. However the Tribunal made allowance for the applicant’s stress and his Russian-language ability (when this was drawn to his attention) in the conduct of the hearing. It also provided him with an opportunity to make further written submissions. I note that he did not raise any such issue in the hearing – although his adviser and the interpreter made the comments discussed above.
In its reasons for decision the Tribunal acknowledged and stated that it had “duly considered” the characterisation of the applicant as “nervous and uneducated, and a speaker of Russian as a second language” in the course of assessing its approach to the facts of the case. It also took into account the adviser’s submissions, notwithstanding its concern that she had “interpolated her own experiences, emotions and observations” into her submissions and that her professional distance from the matter had not always been clear. Such findings were open to the Tribunal. Indeed the adviser herself acknowledged in a post-hearing submission (apparently in response to the Tribunal’s s.424A letter): “When I talk to people claiming to be refugees whom I trust I become passionate to the point of silliness (at least, I let myself think that in other cases I am not silly). I ask for details and on waves of compassion I can throw out baby with a bath water. I realize that it is unprofessional but every time I cannot help myself but to get too involved.”
The applicant took issue with the fact that he felt that the Tribunal “put its own phrasing” into his mouth and expected him to answer precisely. He also contended that the Tribunal put a lot of pressure on him at the hearing, referring to the discussion of the fact that he had not contacted agencies that existed to assist the victims of trafficking (transcript pp 10 – 12). It was, however, open to the Tribunal to question the applicant about matters of concern arising from his written claims and country information.
The applicant also contended that when the Tribunal stated “Police, police, police” in questioning him he felt like he was before the militia in Uzbekistan, being asked questions and that he could not follow and that he felt everything was crashing down on him. He claimed that the Tribunal put its own words into the girls’ mouths when it asked him what they had said. The applicant claimed that he answered that question but that the Tribunal asked him again as if it did not hear him “why did the girls not tell you to go to the police?” The applicant contended that the truth was they did not tell him not to go, they simply told him that they were afraid and that he did not change his story as the Tribunal implied. The applicant contended that he was very stressed and scared and that his evidence that the girls did not want him to go because they were scared was not inconsistent or a contradiction.
During the hearing the Tribunal questioned the applicant at some length (transcript pp 10 – 16) about his claims that he was unaware that corrupt government officials were involved in trafficking and also that he sought police assistance on behalf of affected women and families notwithstanding warnings from the women. At one point in the hearing the Tribunal demonstrated what could be seen as exasperation with the applicant’s answers. This occurred after the Tribunal had expressed concern about what it described in its reasons as the applicant’s claims about working in a “knowledge vacuum” about matters such as the authorities’ involvement in the sex trafficking trade at the same time as working on behalf of families living under great fear, his claimed ignorance of the dangers of approaching the Uzbekistan authorities in the matter of sex trafficking and his claimed ignorance of agencies that could have assisted the girls he claimed he tried to help on his own (transcript pp 8 – 10).
The relevant part of the hearing is as follows (transcript pp 10 – 12):
Tribunal:… You’ve described yourself as working in a vacuum, unaware that these agencies existed, unaware of who you could contact. The first people you went to were the people who you claimed are running the show, and that you didn’t know it.
Applicant:I thought that the police didn’t know about that. So I was thinking that the girls didn’t want to claim it, they didn’t want to go for help anywhere, and I was thinking that the government was unaware about.
Tribunal:Did you say to the girls, “Shall I go to the police?” Did you say to the girls, “How about if I go to the police?”
Applicant:Yes, I was telling them, “I would help you,” and I was telling them that I would hire a lawyer and “We are going to submit out claims together.”
Tribunal:Did you tell them that you were going to the police? Police, police, police?
Applicant:To the girls, you mean?
Tribunal:Yeah. Did you tell the girls, “I am going to go to the police’?
Applicant:Yes, I was telling them about it.
Tribunal:And what did they say? “That’s fine, the police don’t know about this, they’d better know.” Did the girls say that or did the girls say, “Don’t go to the police, they’re in this up to their ears,” or what did the girls say?
Applicant:First of all they didn’t want me to go there, but then I told them the story that my wife used to have a friend who committed suicide, but it was too late to help her, and I was promising to them to hire a lawyer and to go to the police and to help them to find the criminals who were going – who were responsible for that, who were doing it.
Tribunal:Okay. Please tell me directly, why did the girls tell you not to go to the police? And please answer this question directly. Why did the girls tell you not to go to the police? Sorry, what was that question?
Interpreter: Why they didn’t want me. He just re-ask it was a question.
Tribunal:Yeah, yeah, yeah.
Interpreter: He is asking again the question. Shall I repeat it to him, or ---
Tribunal:I don’t think you need to repeat it, because the applicant has repeated it twice. Okay? I’m not repeating the question at this stage. It seems you understand it. The issue is that you don’t seem to be able to answer it at this point, or the issue might be this. Anyway, so please answer the question, in your own time. But I can’t go very much farther in this case without getting an answer to that question. It’s an important question, and I won’t be putting it aside, you do need to answer it. Why did the girls tell you not to go to the police?
Applicant:They didn’t tell me not to go. I was telling them, “I’ll help you, we’ll go altogether to submit a claim.”
Tribunal:Okay. Well, you’ve changed the story, because here’s what we’ve just been discussing.
Applicant:What ---
Tribunal:Here’s what we’ve just been discussing. I said to you, “Did you tell the girls you were going to the police?” You said, “Yes.” “Did the girls say for example, ‘Okay’, or did the girls say for example, ‘Don’t tell the police’, or what did the girls say?” And your answer was this, “They didn’t want me to go, but I told them a story.” Now, and now I’ve said to you, “Why did they tell you not go?” And then you’ve said, “They didn’t tell me not to go,” and that’s a plain contradiction, and it worries me, it concerns me. Because inconsistencies like that can be very damaging to a case if they’re not resolved.
Applicant:Is it possible for me to give you a detailed story, how it really was?
Tribunal:Well, you can give me one version of events. Okay? And we do have one version of events written out for the department, and we have one version of events in a recent submission to me, written. But eventually we have to get to a point where we look at different parts of the story in detail, and I’ve chosen to look at the details quite early on in this hearing, and we’ve hit the situation where we have two different versions of events coming from you about 2 minutes apart. Now, it becomes important then to sort out why we have two opposing versions of what happened, two opposing versions of what happened coming from the same voice, and I can’t just erase the situation, I can’t just erase what we’ve got and then go back and ask you to tell me one story.
Or I can, but it’s on the record now that you’ve contradicted yourself, or so it would seem, and I think I have a duty to try and sort this one out, this contradiction. You’ve told me that the girls didn’t want to go to the police, and then you’ve told me they didn’t tell you that. Can you resolve that seeming contradiction?
Applicant:I’m awfully sorry. I’m very nervous. Can I have a break, please?
Tribunal:Yeah, sure. Okay, we’ll have a break. But we will have to come back on to this one. What we’ll do first (indistinct) we’ll just call the hearing officer in to adjourn the hearing.
Applicant:Okay.
The Tribunal’s reiteration of “Police, police, police” while regrettable, is not of itself indicative of bias as distinct from exasperation with the applicant’s failure to address its concern that it seemed hard to conceive that he would have been unaware of the issue of sex trafficking before May 2006, given country information about the publicity of the issue in Uzbekistan, or its concern that he proceeded to work on his own without approaching relevant agencies that could assist, despite the fact that there was plenty of public information telling people “which organisations they could get in touch with” (transcript pp 9 – 10).
In that context the Tribunal attempted to clarify the circumstances in which the applicant claimed he approached the police, given his statement to the Department that the families of the sex-trafficking affected women he tried to help were “scared” by his proposal to take up the matter with the authorities.
When the applicant asked the Tribunal to repeat the question “Why did the girls tell you not to go to the police?” initially the Tribunal suggested there was no need to repeat it as the applicant had repeated it twice. However, it then explained that the issue was important and did repeat the question.
Insofar as the applicant submitted that the Tribunal erred in suggesting that the applicant had “changed his story” and did not appreciate that there was a difference between whether the girls did not want him to go to the police (transcript p.10) and whether they told him not to go (transcript p.11), the Tribunal made its concern clear (transcript p.11). While the applicant now purports to provide an explanation for what the Tribunal saw as an unresolved inconsistency, he did not do so at the time but rather sought to give a “detailed story”. After explaining its concern the Tribunal agreed to the break sought by the applicant, albeit advising him they would return to the apparent contradiction.
After the Tribunal’s discussion with the interpreter about the timing of an adjournment, the migration agent suggested to the Tribunal member that the problem might be that the applicant did not understand his “well-phrased questions” and asked the Tribunal member to phrase things in a more simplified way. The Tribunal member agreed and also stated (transcript p.14):
… I clearly asked if the girls – what the girls said, and I do believe at this stage we have two different versions of what the girls said. I mean, that’s what we’re going to need to sort out. And one of the things you can do in the adjournment is work through that with your client. I’ll hear further submissions from you on it.
Rather than being indicative of bias (or of a failure to comply with s.425) this approach clarified the Tribunal’s concern and gave the adviser the opportunity to address it with the applicant. After a lunch adjournment the Tribunal returned to this issue as follows (transcript pp.15 – 16):
Tribunal:And we’ll proceed. We’re up to the part where we – where it appeared to me that we have a discrepancy between whether these girls you wanted to help did or did not want you to go to the police.
Applicant:The girls were actually very scared and they were ashamed and they were scared that the police would punish them.
Tribunal:Did you ask them why the police would punish the victims? Did you ask the girls that?
Applicant:I just – I didn’t understand the question.
Tribunal:Did you ask the – when the girls said, “We’re scared and ashamed, we’re scared the police will punish us,” did you ask the girls, “Why would the police punish you, you’re the victims?”
Applicant:I’m sure I explained to them that they were victims in this situation, and I told them that they should submit an application to the police, and then the police would find the criminals and would punish the criminals.
Tribunal:But it seems from your story that you went fairly directly to the police.
Applicant:Actually what I did, I we (sic) to see a lawyer, I talked to the lawyer, then I asked the girls for permission to represent them, to represent them on their behalf, and I submitted the application to the police.
Tribunal:Did you inform the girls that you were going to go directly to the police at that point?
Applicant:Yes, I told them that.
Tribunal:And what was their reaction?
Applicant:I’m sure that they were scared initially. But I convinced them that, “Maybe there is one policemen who’s corrupted, but the others were fine, so we’ll submit the application and they will find the criminals and the criminals will be punished for their offence.”
Tribunal:Well, now you’re saying that before you went to the police you knew that there was police corruption in this business.
Applicant:You know, I was thinking that it was only the lower sections. I mean, only the initial sections of the police, the local ones only, or simply there was maybe some kind of local policeman who will take no – who was ignoring the crime, who was just ignoring the crime and was providing help.
Tribunal:Earlier today though you were saying you didn’t know that the police were involved in it at all. But now you’re saying you did.
Applicant:I knew about the corruption. But as for the trafficking, I didn’t know that the police was involved in this kind of corruption, that the police was involved in the trafficking itself.
Tribunal:Yes, but when you’re talking to the girls you had to convince them that maybe – that there are one or some police who are corrupt, but the other police are fine. You’re telling the girls then, it seems, that the police corruption effecting them might be limited to lower levels.
Interpreter: Excuse me please.
Applicant:I knew about the corruption. I knew, for example, that they were taking bribes, they were taking money. But I didn’t know about the trafficking, when they were selling girls to slavery.
Tribunal:You knew they were taking bribes from girl traffickers, from sex traffickers?
Applicant:I didn’t know about that. I guessed about it later on when I was beaten up, when I was threatened.
In this part of the hearing the Tribunal appears to have attempted to simplify its questions as asked by the adviser. The Tribunal repeated and clarified a question when the applicant said that he did not understand.
Towards the end of the hearing the Tribunal summarised its concerns about apparent inconsistencies and implausibilities about aspects of the applicant’s claims. The Tribunal member told the applicant that he would be happy to consider further submissions and that he would keep an open mind (transcript p.29).
Read in isolation, aspects of the manner of the initial questioning of the applicant about what the girls (victims of sex trafficking) told him may have raised concern on the part of the applicant and contributed to his nervousness. It is apparent that at times the Tribunal became frustrated with what it may have perceived as the applicant’s failure to answer questions directly. However seen in context its questioning in this respect does not establish a closed mind or give rise to a reasonable apprehension of bias.
Insofar as issue is taken with whether there was any inconsistency, the Tribunal’s finding in relation to this particular issue was not a finding of inconsistency about the answers the applicant gave as to whether or not the girls told him not to go to the police or told him they were afraid. Rather, the Tribunal found the applicant’s claims about how he persuaded the families to let him proceed with his campaign on their behalf implausible “because of the great fear he attributed to them and because of the ease with which he changed their minds in the circumstances.” The Tribunal did not accept the applicant’s account as to how or why he pressed on with his campaign out of sensitivity for affected women “in spite of their and/or their families’ pleas for him not to do so”.
The questioning extracted above and the reasoning of the Tribunal in relation to the issues discussed is not such as to establish actual or apprehended bias (see Ling v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 at [57], per Branson J). The “vigorous testing of the evidence and frank exposure of its weaknesses” did not go so far in this case as to result in the applicant being “overborne or intimidated” such that a fair-minded lay observer “might readily infer that there is no evidence that the [applicant] can give that can change the decision-maker’s view” (Ex parte H at [31]).
The applicant also claimed generally that he was not vague or evasive at the Tribunal hearing but that he could not understand some questions and “could not answer as I would have answered in Uzbek”. The applicant did not, in the context of this submission, identify questions he could not understand. Nor did he relate the suggestion that he could not answer as he would have answered in Uzbek to particular issues. Rather he appeared to take issue with what he contended was the complexity, “pushiness”, “unfriendliness” and adverse questioning of the Tribunal in the face of his asserted language difficulties.
As discussed above, at no time did the applicant or his adviser ask the Tribunal (or the Department) to provide an Uzbek interpreter (cf SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923). On all the Departmental and Tribunal forms before the Court the applicant requested a Russian interpreter. He requested an interpreter in Russian for the Tribunal hearing. His adviser indicated, some way into the hearing, that the applicant’s Russian was “not good at all” (and the interpreter agreed) and that he might not understand “well-phrased questions” … “[b]eing pressed and being confused between a few languages” (transcript p.13). This comment (and the interpreter’s later remark about his Russian being “very primitive”) was not made in the context of suggesting that the applicant should have been provided with an interpreter in a different language (whether that be Tajik, Uzbek or even Korean).
The submission that the Tribunal’s conduct in the hearing (and findings based on that hearing) demonstrated bias or a reasonable apprehension of bias amounts to a contention that the Tribunal did not take into account the fact that the applicant had, at his own request, used a Russian interpreter in the hearing when Russian was not his first language. To the contrary, the transcript reveals that when this issue was raised the Tribunal simplified its questioning, adopted a less vigorous style of questioning and endeavoured to ensure that the adviser and applicant understood its concerns. The Tribunal also gave time for post-hearing written submissions. Such conduct is not indicative of bias. The English language transcript of the hearing is not such as to establish that the applicant’s Russian comprehension or speaking ability was such that the conduct of the hearing in Russian was in any sense a “sham” such as to be indicative of bias or that the applicant was overborne or intimidated such that it could be inferred that the Tribunal had or appeared to have a closed mind.
Inconsistencies
Associated with this claim, the applicant took issue with the Tribunal focus on what he regarded as minor discrepancies in his claims. He contended that he was not allowed an opportunity to present his claims. However, as the first respondent submitted, the Tribunal was entitled to direct its inquiry to the veracity of the applicant’s claims regarding past events as that was fundamental to whether his claims were well founded (see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 574 – 576).
The Tribunal was obliged to provide the applicant with a reasonable opportunity to respond to dispositive issues (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]). The transcript reveals that the applicant was given an opportunity to respond to the Tribunal concerns and, indeed, that he was informed about the Tribunal’s concerns about the credibility of aspects of his claims, granted an adjournment and given an opportunity to prepare supplementary submissions in relation to any misunderstandings that may have occurred during the course of the hearing. This allowed the applicant to elaborate on aspects of his claims beyond the prior lengthy written submissions and extensive country information submitted in support of his claims. His migration agent was also given an opportunity to make written and oral submissions.
The Tribunal was obliged to assess whether the applicant’s claims were well founded. In the absence of any corroboration, the Tribunal focussed on determining whether the applicant’s claims that were consistent with aspects of country information about matters such as trafficking in Uzbekistan but which had been found to be implausible by the delegate were cogent or whether they had been concocted by reference to that country information. The Tribunal found its concerns about inconsistencies and implausibilities in the applicant’s claims were not allayed by his testimony or by his subsequent written submissions. It found that he was not able to explain discrepancies in his written claims in a cogent manner and that his oral testimony revealed further inconsistencies. It was open to the Tribunal to explore the issues that had been found determinative by the delegate and to choose to focus on aspects of the applicant’s claims that appeared implausible. This does not establish a reasonable apprehension of bias, given that the Tribunal was not obliged to accept uncritically the claims made by the applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).
Insofar as the applicant suggested that there was a discrepancy in the meaning of “banned” and “not allowed to be published” in Uzbek, there is no admissible evidence before the Court of such matters and such contention does not establish any difficulty with the conduct of the hearing through a Russian interpreter.
The applicant referred to the Tribunal’s finding that he had given conflicting evidence as to whether or not he knew at the time he accepted copies of the poems collected under the title “Prisoner of Conscience” or “Political Prisoner” that such poems were banned. This appears to be a reference to possible inconsistencies that the Tribunal had put to the applicant in a s.424A letter. The Tribunal referred to a distinction between the applicant’s claim in the statement he lodged with his protection visa application that at the time he had copies of the poems he did not realise that those poems were banned and his written and oral evidence to the Tribunal that he did know that the poems were banned.
The Tribunal put to the applicant that the apparent discrepancy between what he had said to the Department and what he said to the Tribunal could lead it not to accept that he was unaware that the book of poems had been banned and hence to doubt that he kept copies of the banned poems at his workplace as claimed and that the Tribunal might find that it would not rely on the credibility of his claims about the authorities discovering that he had the poems in his possession. The Tribunal also put to the applicant inconsistencies in his claims (to the Department and to it) in relation to whether he had a copy of the Parfi poems to help him through a period of personal difficulty or whether he had 50 copies, which suggested that he consciously intended to distribute them informally on a relatively large scale. It advised that in view of his claim about complicity in distributing the books the Tribunal may find it difficult to accept his claim about not knowing the books were banned.
In written submissions the applicant attributed this inconsistency to the Tribunal’s view of the difference between the concepts “banned” and “not allowed to be published”, but submitted that this made no difference in the Uzbek language and that it was only later that his agent had explained to him that “banned” meant totally prohibited from possession.
There is nothing in the material before the Court to establish that there was any error in translation or miscommunication in the Tribunal hearing in relation to this issue. Insofar as the applicant alleges bias in the Tribunal’s consideration of his evidence, he was given an opportunity to address the perceived inconsistency in response to the s.424A letter. His adviser expressed the hope that the Tribunal would not take his words literally as his choice of words was “very poor and limited by having to speak a language that he normally does not speak”, but did not refer to the issue of whether there was a distinction between “banned” and “not allowed to be published” in Uzbek such as is now suggested as an explanation for the inconsistency. Rather, it was submitted that the applicant did not regard the poems as political and while cautious when giving them to people “did not heed his friend’s advice that the book where they were copied from was actually banned because the authorities in Uzbekistan see political innuendos everywhere in between”.
The fact that the applicant now provides a different explanation for a perceived possible inconsistency does not establish jurisdictional error on the part of the Tribunal. Insofar as he refers to the absence of any distinction in the meaning of concepts in Uzbek, I note that the Tribunal hearing was conducted with the assistance of a Russian interpreter.
Insofar as this contention takes issue with the Tribunal’s findings about the applicant’s claims about the poems, it was open to the Tribunal to find that the applicant had given conflicting evidence as to whether he knew at the time the poems in question were banned and that the inconsistencies were not resolved. It considered the explanation provided to it. While it accepted that a person would (as claimed) read Parfi’s poems and not perceive political content, it also found that this did not satisfactorily reconcile the “disparate” claims as to whether the applicant knew or did not know the poems were banned.
The Tribunal’s s.424A letter, its questioning in the hearing and findings in this respect are not indicative of apprehended bias from the perspective of the hypothetical properly informed, fair-minded lay observer (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ).
Insofar as it is suggested that such findings were unreasonable, it cannot be unreasonable for the Tribunal to fail to take into account an explanation that was not provided in the course of the review.
There is nothing in the transcript (extracts from which are set out above) to establish an apprehension of bias in relation to the discussion of whether the applicant knew at the time he accepted copies of poems that they were banned. As the Tribunal recorded, it asked the applicant about the book(s) of poetry and the circumstances in which a friend gave him a book. He claimed he was given the poems when he explained to the friend what kinds of problems he was having and that the authorities were not performing their duties properly (transcript p.5). The applicant volunteered, in response to a question as to whether the poet was famous, that “[h]e’s a very famous poet. But his poems were not published because they would not allow for it to be published” (transcript p.5).
The Tribunal then asked: “Banned?” to which the applicant responded through the Russian interpreter: “Yes, they were banned”. The Tribunal then asked questions about why the applicant took a banned or dangerous book at a time that he claimed he was afraid of being scrutinised by the police. The Tribunal also put to him that he had claimed to the Department that the poems were seized by police and that at the time he had no idea that this literature “was a problem to the government” but “Today you’re saying you did know” (transcript p.7). When the applicant responded “You know it’s not – it’s not like a political threat. They’re just very good poems, and they describe the life of an everyday person” (transcript p.7), the Tribunal explained in some detail its concern as to why he had said to the Department that he did not know the poems presented some kind of problem for the government. As the Tribunal recorded, the applicant claimed the poems were really of a romantic nature. He did not address the Tribunal’s concerns. The submission that the Tribunal’s attempt to obtain an explanation was too complicated, being presented to an uneducated person with limited Russian, is discussed above. The transcript does not establish that the applicant did not understand that he was being asked to address why he told the Department that he did not know the poems presented some kind of problem for the government given that he told the Tribunal he knew Parfi was a banned writer and was warned the book was a dangerous item. The Tribunal also put to the applicant its concern about his apparently inconsistent claims about his knowledge that the book was banned and the claims about the number of copies he had stored at his workplace. It sought his comment on the fact that his apparent suggestion that the poems were romantic and not political appeared to be at odds with independent evidence which stated the poems discussed topics of prostitution and sex trafficking he claimed he was deeply involved in at the time. The fact that the Tribunal raised such issues of concern is not indicative of bias.
In this way the Tribunal clearly gave the applicant an opportunity to address its concerns. It addressed his response but found it did not resolve its concerns or provide a cogent explanation for the perceived inconsistencies for the reasons it gave. The Tribunal also addressed the adviser’s submissions in this respect, but again found these claims did not address its concerns about the applicant’s claims.
The applicant contended that the Tribunal inferred that the poems “Prisoner of Conscience” were political, whereas the applicant asserted that they were not. Insofar as this and other contentions seek merits review, merits review is not available in this Court. The applicant made a claim based on political opinion and told the Tribunal that the poems had been banned when he received them. It has not been established that he did not understand the purport of the Tribunal’s questions. The difference in opinion as to the nature of the poems was a matter of fact for the Tribunal (Attorney General for the Sate of New South Wales v Quin (1991) 170 CLR 1 at [35]-[36]).
The applicant also contended generally that he was not allowed to give his side of the story at the Tribunal hearing and that if he had been given this chance the Tribunal would have seen that he explained from the beginning the circumstances of his meeting with Mr Kurbanov which he set out in his written submissions. He submitted that there was in fact no inconsistency or discrepancy in his account of how he met with Mr Kurbanov.
In the findings and reasons part of its decision the Tribunal stated, without elaborating, that it had considered the evidence the applicant had given it on different occasions in written and oral form about his meeting with Mr Kurbanov of Ezjulik. While it also stated that it had given consideration to the “caution and gingerliness” that individuals might display in respect of proposed or suggested meetings on controversial and/or politically sensitive topics in Uzbekistan so that meetings might not always take place in offices but rather in streets, parks or other places, the Tribunal found that the applicant’s evidence about his meeting with Mr Kurbanov was inconsistent. It did not accept on the evidence before it that the meeting took place.
Bearing in mind the necessity to read the Tribunal decision fairly and as a whole and with an eye not too keenly attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259) it is appropriate to look at the Tribunal’s account earlier in its reasons for decision of the evidence given by the applicant and the concerns it expressed to identify the inconsistencies relied on by the Tribunal and to address the claim of bias in this respect.
In his written statement to the Department dated 18 May 2007 the applicant claimed he approached the human rights organisation called Ezjulik and talked to its boss Mr Majid Kurbanov in mid-2006 and that Mr Kurbanov told him sex trafficking was a matter Ezjulik could not pursue but gave him contact details for a journalist, Mr Karimov. The applicant also claimed that the authorities later seized his address book which contained addresses of human rights agency contacts including the telephone numbers of Messrs Kurbanov and Karimov.
The Tribunal accepted on the basis of independent evidence provided by the applicant’s adviser that Mr Majid Kurbanov of Ezjulik existed (contrary to the decision of the delegate in this respect). It recorded that at the Tribunal hearing on 5 September 2007 it asked the applicant to describe the circumstances and location of his meeting with Mr Kurbanov and that “the Applicant said he telephoned Kurbanov and said he was coming to see him. He did not seem to suggest that they made any appointment. He said he later approached the building where Kurbanov worked and saw him leaving the building and approached him there. He said he did not know where Kurbanov went after that”.
However the Tribunal referred to the fact that in his written statement received on 3 September 2007 the applicant had said that Kurbanov told him not to come to his office and told him to meet “at another address” (5 Kuksary Street) and to walk with him from there to another address. The claims in the letter received on 3 September 2007 were as follows:
I only know Madjid Kurbanov. I really went there and spoke to him. He is a chairperson of Ezgulik. We did not meet at his office, he was busy going somewhere and told me that if I want to meet him I will have to come to 5 Kuksary St. and we will walk from there, I will have no more than 10 minutes. I did so and he gave me a telephone number for Mr. Karimov.
The Tribunal described that the applicant’s evidence at the hearing as follows:
The Applicant’s evidence at the hearing was plainly that he ran into Mr Kurbanov outside Kurbanov’s office while Mr Kurbanov was “seeing off someone’, which indicates that the person was leaving after a visit to Mr Karimov (sic). At one point the Applicant said at the hearing that he asked Karimov (sic), a total stranger at that stage, if he was Karimov (sic) and that Karimov said he was. He said they had a conversation and indicated that Karimov (sic) gave him another address and went back into his office. Then he said he did not know where Karimov (sic) went.
The Tribunal stated that it reminded the applicant of his claim in the 3 September 2007 submission:
… about having walked with Karimov (sic) from 5 Kuksary Street, which he said was not where Karimov’s (sic) office was situated, for about 10 minutes. In reply, the Applicant said he did not understand. The Tribunal repeated its concern about a discrepancy relating to the conditions in which he met Mr Kurbanov. In reply, the Applicant said he was feeling stressed.
The Tribunal continued:
The Applicant later confirmed that he first and last set eyes on Mr Kurbanov in front of the building housing his office. This appeared to be different information from what he gave in his 3 September 2007 statement. The Tribunal asked the Applicant to reconcile the discrepancy and the Applicant said that he and Karimov (sic) walked on the road together for about five to ten minutes. He appeared to be averting to a particular version of events without appearing to reconcile the discrepancy in his claims.
The Tribunal put to the Applicant that he claimed in his 3 September 2007 statement that he and Kurbanov walked together from the place where they met to another address. He said they walked together.
The Applicant told the Tribunal that Kurbanov gave him a telephone number for Mr Karimov, who later disappeared and re-appeared in a psychiatric hospital. He said he arranged to meet Karimov in Samarkand in late August 2006. When the Tribunal put to the Applicant that he claimed in his protection visa application to have met Karimov during a business visit by the latter to Samarkand in September 2006, he said they met on a second occasion in September 2006.
It is apparent having regard to the transcript of the Tribunal hearing, that some of the references to Mr Karimov in this summary of the oral evidence at the hearing are typographical errors and should refer to Mr Kurbanov. It is clear from the whole of the Tribunal decision, in particular the findings and reasons part of the decision, that the Tribunal understood that this oral evidence related to the applicant’s claimed meeting with Mr Kurbanov (transcript pp.16 – 19). The applicant did not raise any issue about the incorrect references to Mr Karimov. Having regard to the Tribunal decision as a whole it is not apparent that such typographical errors affected the exercise of power by the Tribunal (cf SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 238 ALR 611 at [45] per Greenwood J. As in SZJRW v Minister for Immigration and Citizenship [2008] FCA 959 the Tribunal comprehensively examined all the underlying facts going to the applicant’s claims (at [68] per Greenwood J and see SZMAD v Minister for Immigration & Citizenship [2008] FCA 1275 and “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682).
The applicant’s contentions about this aspect of the decision take issue not so much with the conduct of the Tribunal hearing or, indeed, with the accuracy of the interpreting, but rather amount to a claim that he was not given a chance to provide a further explanation for the perceived inconsistency. He now seeks to explain that he rang Mr Kurbanov who told him to come to his office at the appointed hour and that when he arrived Mr Kurbanov was leaving his office with someone, that he did not know how he recognised him but felt that it should be him. The applicant now claims that when the other person said “Goodbye Mr Kurbanov” he approached him and introduced himself and at that point Mr Kurbanov said something urgent had come up and asked if he minded telling the story while they walked for a while, which they did, during which time Mr Kurbanov gave him the telephone number for Mr Karimov.
However the applicant had the opportunity, not only during the hearing but also in written submissions after the hearing, to elaborate on his claims to the Tribunal about the meeting with Mr Kurbanov. The Tribunal did not have before it the explanation he now seeks to provide. It was not obliged to put to him its provisional reasoning (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). Importantly it raised its concern about inconsistencies in this aspect of his claims at the hearing. The fact that there may be another explanation that reconciles perceived inconsistencies does not establish bias on the part of the Tribunal or give rise to a reasonable apprehension of bias. Nor does it establish a failure to comply with s.425 of the Act.
It is relevant to note that towards the end of the Tribunal hearing the Tribunal raised with the applicant concerns it had about aspects of his evidence and also discussed issues about his evidence with his migration agent. In the course of that discussion the migration agent suggested that the applicant had not given inconsistent evidence about the meeting with Mr Kurbanov.
The adviser stated (transcript p.27):
You (sic) walked with Mr Kurbanov to some address, to some other address. In his application, he said he was going somewhere and he just accompanied him for a short while. In our break I asked him and he said, “No, we didn’t go far.” But he never knew where Mr Kurbanov was going. I was going to say something else, I’m sorry.
At this point the Tribunal gave the adviser the opportunity “time to put it all down … in a considered way if you wish” (transcript pp 27 – 28).
On 6 September 2007 the applicant’s migration agent provided a written submission to the Tribunal in which she made further comments. In that letter she addressed the existence and identity of Mr Kurbanov (which had been in issue before the delegate) but not the circumstances of the claimed meeting.
The applicant’s contention that the Tribunal misunderstood the claim that he made in writing on 3 September 2007 and the concerns that he raised in relation to this issue do not establish that any misunderstanding on the part of the Tribunal (if there was such misunderstanding) was attributable to errors in interpretation or the use of a Russian interpreter. Nor is apprehended bias established, having regard to all of the circumstances, including the opportunity the applicant’s adviser was given to address this and other issues in post-hearing submissions.
The applicant also took issue with the fact that the Tribunal was said to have found that “one of the discrepancies is that I should have been aware of bribery and criminality of Uzbek police”. The applicant claimed that he thought he had explained himself when he said he was aware (as everyone else in Uzbekistan was) that you could not obtain a simple document or pass traffic control without bribery, but that he could not believe that the government would take part in “pure crime, in selling its citizens abroad”. This contention takes issue with the merits of the Tribunal decision and does not establish jurisdictional error arising out of the conduct of the hearing or otherwise.
More generally, contrary to the applicant’s contention that he was never given a chance to give his side of the story at the hearing, it is apparent that he was given an opportunity to respond to determinative issues that arose in relation to his application for review before, during and after the hearing. The Tribunal was not obliged to prompt and stimulate further elaboration of the applicant’s testimony in respect of those matters (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [142] – [143], Ex parte Applicant S154/2002 at [54], [85] – [86]), but in fact it went over difficulties in his evidence at the conclusion of the hearing and gave him and his adviser an opportunity to address those matter in writing.
The Tribunal’s findings, including about the applicant’s meeting with Mr Kurbanov were open to it on the material before it given the applicant’s written and oral claims. Notwithstanding that alternative inferences may have been open on the evidence, the correctness of the Tribunal’s credibility finding is a matter for the Tribunal and not for review by the Court as such (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]).
The Tribunal’s findings about the applicant’s claimed lack of awareness of the corruption of the police and the authorities were based on its appraisal of country information in relation to widespread corruption in Uzbekistan and the applicant’s own evidence. The Tribunal put its appraisal of the applicant’s claimed ignorance to him during the course of the hearing. In those circumstances, no procedural unfairness resulted from the ultimate finding made by the Tribunal which was, in any event, a finding of fact.
Illogicality
I have considered the applicant’s claims that certain of the Tribunal’s findings were illogical, unreasonable or otherwise perverse both in relation to the possibility of apprehended bias and more generally. Issue was taken with what was said to be the Tribunal finding that the applicant’s claims to have persuaded families to let him campaign on their behalf were “implausible”.
It is necessary to have regard to the actual findings made by the Tribunal on the material before it. The Tribunal commenced by finding that the applicant’s claims about involving himself in the fight against sex trafficking in Uzbekistan were unsupported. It then found that they were cumulatively damaged by inconsistencies. It had difficulty with the applicant’s claims about the circumstances in which he first became aware of sex trafficking in Uzbekistan, as his claims did not sit with the independent country information about the extended publicity in Uzbekistan in relation to sex trafficking. It was in those circumstances that it found the applicant’s claims about working in a knowledge vacuum on behalf of families living under great fear were unconvincing and did not accept that he never suspected that the authorities were involved in benefiting from the sex trafficking trade.
It was also in that context that the Tribunal found that the applicant’s claims about proceeding to work on behalf of affected women and families were unconvincing, because he claimed to have remained ignorant of the dangers of campaigning on their behalf even as they warned him not to do so. It found that the applicant conveyed a highly unconvincing impression of having been working in ignorance of the dangers of approaching the authorities in the matter of sex trafficking. The Tribunal found his claims about how he persuaded the families to let him proceed with his campaign on their behalf implausible, because he claimed also that they were experiencing great fear but nonetheless he changed their minds with some ease.
In other words the Tribunal did not simply make an assertion of implausibility. Rather, it had regard to the particular claims made by the applicant and the information before it in relation to the situation in Uzbekistan. It considered, but did not accept, the applicant’s account as to how or why he pressed on with his campaign against sex trafficking (supposedly out of sensitivity for affected women) in spite of their and their families’ pleas for him not to do so.
The country information before the Tribunal in this respect and cited in its decision indicated that Uzbekistan was governed by an authoritarian regime, that some victims of trafficking had been prosecuted for illegal migration, that repatriated victims often faced societal and familial problems and that even the agencies that campaigned against trafficking in Uzbekistan were persecuted by authorities. The Tribunal’s view in light of this information that this aspect of the applicant’s claims was implausible was a finding that it was inherently unlikely that the events had occurred as alleged. Hence there was a sufficient basis for that finding (see Durairajasingham at [67]) notwithstanding that alternative inferences may have been available based on such testimony. The Tribunal did not have to have rebutting evidence available in order for it to hold that particular factual assertions of the applicant were not made out. The fact that alternative inferences may have been available does not of itself demonstrate unreasonableness (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [128] and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [55], [138] and [147]). This is not a case in which the applicant has demonstrated that there was a compelling inference that arose from the material before the Tribunal and that no reasonable decision-maker would refuse to draw that inference.
Nor has it been established that the Tribunal’s appraisal was perverse in the sense that it lacked probative material in support of its inferences or that it was selective of material going one way (see Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 368 and NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]). It has not been established that there was an overwhelming weight of material supporting the applicant’s claim that was ignored by the Tribunal (see NADH). I note in this respect that the applicant was asked to elaborate on how he was able to convince victims of sexual slavery to complain to the police and why they were reticent to do so, but that he did not give any detailed explanation, notwithstanding that it was a central aspect of his claims.
Insofar as the applicant took issue with the Tribunal finding that his evidence about approaching Ayol was unreliable, such finding was also open to the Tribunal on the material before it, for the reasons that it gave. The Tribunal had regard to the fact that the applicant had given inconsistent information about the address of the Ayol Centre, notwithstanding that he claimed to have visited it some three times after commencing his activism. The applicant’s adviser provided an explanation for this inconsistent information, but the Tribunal gave it no weight. The Tribunal gave the applicant an opportunity to provide evidence of his own contact with Ayol when informed that the applicant’s adviser had been in telephone contact with Ayol through the director’s husband. The Tribunal considered that this was not an unreasonable request in the circumstances, but had regard to the fact that the applicant’s response through his adviser amounted to what the Tribunal regarded as a list of “presumptions” as to why one should not contact Ayol for such information or why it would be pointless to do so. The Tribunal gave such explanations no weight because it considered that a person whose claims were truthful would have tried to obtain evidence from Ayol about his contact with that organisation.
In other words the Tribunal, in finding that the applicant’s evidence about approaching Ayol was unreliable, had regard to the inconsistent information about its address and the fact that he did not take the opportunity to obtain evidence from Ayol about his contact with that organisation. No jurisdictional error is established in this regard.
The Tribunal’s findings about inconsistencies in the applicant’s claims about his meeting with Mr Kurbanov are outlined above. Putting aside the typographical errors in the references to Mr Karimov in the Tribunal account of the hearing (which, as discussed above, do not reveal jurisdictional error), these findings were based on the material before the Tribunal. The applicant had variously claimed that he met with Mr Kurbanov at the Human Rights Centre, on the street in front of the Human Rights Centre and at 5 Kuksary Street. He had also indicated that he had his discussion while walking from one address to another. It was open to the Tribunal to find that such accounts were inconsistent. The applicant’s contention that he spoke primitive Russian and was not educated and did not understand what was being put to him does not provide an explanation for these inconsistencies and the different accounts he gave to the Department and the Tribunal in writing through his migration agent such as to establish jurisdictional error on the part of the Tribunal.
Even if alternative inferences may be available, or a sense of unease may be felt about the Tribunal findings in this respect, that does not establish a reasonable apprehension of bias on the part of the Tribunal, notwithstanding the explanations that the applicant now seeks to provide for these perceived inconsistencies. It is not for the Court to review the adequacy or fairness of the Tribunal’s findings of fact or to infer a reasonable apprehension of bias from findings that were open to it on the material before it and that cannot be characterised as unreasoned, mere assertion, lacking rational or reasoned foundation or otherwise perverse.
This case differs from cases such as NADH, SZKLK v Minister for Immigration [2008] FCA 1125 and NBMB v Minister for Immigration & Citizenship [2008] FCA 149 which concerned the veracity of the applicant’s religious beliefs in circumstances where there had been Tribunal questioning on such matters which has led the Federal Court to express some disquiet (see Wang and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 119 FCR 405 and SBCC). In this case the Tribunal’s credibility appraisal related to whether certain claimed past events had occurred. The applicant had not submitted corroborative material in support of his claims and aspects of his submissions could be seen to be vague and general in certain particulars, albeit consistent with country information. In those circumstances the manner in which the Tribunal sought to test the veracity of the applicant’s claims during the hearing by reference to differences between his claims as made at the hearing and his claims made in writing or by raising matters which appeared to the Tribunal to be of questionable plausibility does not demonstrate either actual or apprehended bias from the perspective of the appropriately informed, reasonable observer.
Moreover, the fact that the Tribunal was not satisfied by the applicant’s explanations (which it was open to it to characterise as at times vague, general or evasive), does not of itself, or taken together with the other material before the Court, establish a reasonable apprehension of bias.
The applicant contended generally that there were no contradictions in any of his evidence. Many of his submissions were directed at reiterating his genuineness and endeavouring to provide explanations for what the Tribunal concluded were inconsistencies or otherwise unconvincing aspects of his claims. This does not, however, establish jurisdictional error.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 23 April 2009
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