SZNIH v Minister for Immigration
[2009] FMCA 905
•4 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNIH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 905 |
| MIGRATION – RRT decision – Indian claiming political persecution – disbelieved by Tribunal – assessment of evidence of Tribunal’s conduct of hearing – no evidence of bias or serious mistranslation – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), s.425 |
| M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106 SZJQN v Minister for Immigration & Anor [2007] FMCA 1550 SZNLB v Minister for Immigration & Anor [2009] FMCA 861 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 |
| Applicant: | SZNIH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 592 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 4 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms M Palmer |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 592 of 2009
| SZNIH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in July 2008 for World Youth Day, travelling as a member of a choir from India. On 18 August 2008 he lodged an application for a protection visa. No assistance was shown in the application. The application attached a typed statutory declaration in which the applicant explained his reasons for fearing persecution if he returned to India.
He said he belonged to the Malayalam ethnic group and was a staunch believer in the Christian faith. He referred to his schooling in Kerala, and then said:
My parents were strongly supporting the communist ideology although they had strong religious faith. My father was an active CPM (Communist Party of India Maoist Party) which was banned by the Indian National as well as the State Governments.
I was a member of RYL (Radical Youth League) which was the young wing division of the CPIM political party to which my father had allegiance.
I could remember vividly the various tortures and brutality my father encountered at the hands of the State Police during my childhood.
In March 2004, my father was arrested by the Kerala State Police and took him under police custody. Since that time he had not returned back home and nobody knows what happened to him.
The applicant referred to taking employment as a graphic designer during his father’s absence. He said he sent many letters to the State Chief of Police and the President of India about his father’s mysterious disappearance, but received no response. In 2007 he went to the Trissur area and started to look for a new job, but he was arrested there, taken back to his town, and:
... kept under remand without bail for a period of 3 months. The police told me that I have to stop looking for my father; otherwise I would be either killed in an encounter due to my political allegiance or put behind bars indefinitely.
Due to this, my family split in different directions and went out of Kerala, and my employer terminated my job and was not able to find any work anywhere. The Police warned me never to come back to Kerala again.
The statement did not refer to the applicant’s subsequent movements, and made general claims that torture was legalised State terrorism in India and was widespread, “including Tamil Nadu state”. [I observe that this was not the State that the applicant came from, and note the almost identical visa statement presented in SZNLB v Minister for Immigration & Anor [2009] FMCA 861]. The statement said:
So if I go back, I will definitely be killed by the Indian and Kerala State Police.
No support for the applicant’s personal history was ever presented to the Department nor to the Tribunal, although some general information showing that the Communist Party of India ‑ Maoist has pursued violent insurgency activities was referred to.
The delegate interviewed the applicant on 16 October 2008 and made a decision on 4 November 2008, refusing the application. The delegate said:
The evasive and confusing nature of responses provided by the applicant at interview continued throughout the entire duration of the interview.
The delegate had suggested to the applicant that the Communist Party of India had not existed at the time of his father’s claimed membership and persecution. He formed the conclusion that “the applicant has invented a political profile for both himself and his father in an attempt to obtain a Protection Visa in Australia”. The delegate referred to some other reasons for disbelieving the applicant’s claims.
On appeal, the applicant attended a hearing held by the Tribunal on 10 February 2009. The Tribunal set out a description of the evidence taken by it at the hearing in its statement of reasons. I shall below refer to other evidence that is now before the Court concerning the hearing. As the Tribunal indicated, it discussed with him all the elements in his written claims, and also attempted to test his affiliation with the Maoist party. At the end of the hearing, it put to the applicant various concerns.
The Tribunal made a decision on 10 February 2009 affirming the delegate’s decision. In its ‘Findings and Reasons’, the Tribunal said that it accepted that the applicant was a Catholic from a town in Kerala, and that he sang in the choir there and took up the opportunity to come to Australia for World Youth Day. However, it did not accept that he fled Convention‑related persecution in India, or faced a real chance of similar treatment, for reasons “mostly going to his lack of credibility”.
The Tribunal assessed the applicant’s evidence concerning the Maoist party and said:
54.The Applicant disclosed only the barest familiarity with the Maoists and their goals, methods and ideology. None of what he said suggested anything more than the outside impressions of someone without any real interest in the group.
Among other defects revealed by the applicant was that, when asked who Mao was, the applicant had shown no knowledge at all of that person. The Tribunal also said:
55.The Applicant himself said he was not really interested in the Maoists’ activities or cause and yet he claims to have joined them even though his father’s link to the Maoists supposedly saw the latter jailed and “disappeared”. He tried at one stage to say that he joined because the Maoists supported his family financially, but he also seemed to undermine this when he said that his only reason for joining was to help free his father. Meanwhile, he failed to argue consistently or otherwise convincingly how he thought being a member of the Maoists’ youth league was going to help him see to the release of his father. The Applicant did not convince the Tribunal that any overriding interest or logical purpose swayed him to affiliate with the Maoists.
The Tribunal referred to other difficulties with the applicant’s claims, including the fact that independent country information was to the effect that the CPI‑Maoist party was not formed until September 2004, a fact which appeared inconsistent with the written claim that the applicant’s father was arrested in March 2004 for involvement in that party. The Tribunal also identified an inconsistency between what the applicant had said about his places of work and domicile and the location of his mother and sister. The Tribunal found parts of the applicant’s evidence “unsupported and not convincing”, and referred to other parts of the applicant’s evidence in which it thought he was “improvising his way out of a factual tangle at this point”.
It concluded:
63.Overall, the Tribunal is of the view that the Applicant has had disregard for the truth in the process of seeking the visa under present review.
64.The Tribunal is also prepared to accept that a Catholic might have subjective justifications for being at the same time a Maoist, but the Applicant failed to articulate a convincing argument about his affiliation with Maoists.
65.The Applicant’s “political opinion” claims fail due to lack of credibility.
66.On the evidence before it, the Tribunal sees no grounds for finding that the Applicant faces a real chance of persecution for reasons of “political opinion”, “religion” or any other Convention‑related reason. His claimed fear of Convention‑related persecution in India is not well founded. He is not a refugee.
The applicant has applied to the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power only to make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power to decide for myself whether the applicant is a refugee, nor whether he should be given any permission to stay in Australia.
The applicant’s arguments in support of his application are found only in his original application. It contains the following grounds:
1.Due to my active membership in Radical Youth League the police and other authorities want to eliminate me.
2.To save my life and a peaceful life I want to get a protection visa from the Australian government.
The applicant has not filed any amended application nor written submission, nor has he presented arguments other than those attacking the conduct of the Tribunal’s hearing, which I shall address below.
The grounds in the application are manifestly inadequate to provide jurisdictional error. At most, they invite the Court itself to make a decision about the applicant’s refugee claims, but it is not its function to do that.
I accordingly set the matter down for a show‑cause hearing, giving the applicant an opportunity to file an amended application after getting a bundle of relevant documents and a referral for free legal advice. The applicant did not file further documents, but at the show‑cause hearing he presented oral submissions in a highly articulate fashion, criticising the Tribunal’s disbelief of his claims. He also suggested that he thought that the Tribunal had already made up its mind at the hearing, although he could not present any evidence of this. The applicant persuaded me, however, to listen to the recording of the Tribunal hearing, so as to form an opinion for myself as to the fairness of the hearing and foundations of the Tribunal’s findings based upon what happened there.
I adjourned the show‑cause hearing for that purpose, and listened to the whole recording. The recording, far from showing the Tribunal approaching the applicant’s claims with a closed mind, in my opinion showed the Tribunal genuinely seeking to establish the truth or otherwise of the applicant’s claims, which had been otherwise unsupported by any evidence. Moreover, the recording also tended to confirm that there was a basis for the Tribunal’s general statements about its impression of the applicant’s evidence. In particular, I concluded that it was open to the Tribunal to have found that the applicant had improvised himself out of factual tangles and at times had been evasive. Its impressions may also have been informed by matters of demeanour which were not recorded.
At the resumed show‑cause hearing, the applicant sought a further opportunity to present detailed criticisms of the conduct of the hearing, and he tendered a document which he claimed to be a transcript, both of English and of the correct interpreting of what was said in Malayalam at the hearing. This had not been shown to either the Minister’s representative or to the Court prior to that listing, and I felt compelled to further adjourn the matter to allow its contents to be considered. I fixed the matter for hearing today, explaining to the applicant the necessity for him to present proper evidence with properly particularised complaints, if he wished to persuade me that he had a ground based on either apprehended bias or seriously inadequate interpreting services provided at the hearing.
I gave the following direction on 22 June 2009:
1.The applicant must file and serve on or before 20 July 2009:
(i)An amended application and a written submission which lists and explains each defect in the hearing of the Tribunal which the applicant relies upon,
(ii)A transcript of the recording of the English language spoken at the hearing of the Tribunal, or such parts of the hearing as he wishes to draw attention to in submissions,
(iii)An affidavit of the person who made that English transcription, swearing that the transcript is a complete and accurate record of the English words heard on the recording,
(iv)A transcript of the translation into English of the Malayalam language spoken at the hearing, or such parts of it as he wishes to argue were wrongly interpreted at the hearing,
(v)An affidavit of the person who made that translation, setting out the educational or other qualifications of the person who made the interpretation from Malayalam relied upon by the applicant.
The applicant filed on 21 July 2009 an affidavit by himself, asserting “my RRT decision is not correct”, and attaching a 28‑page document which I take to be the transcript which he had sought to present at the earlier show cause hearing. He did not, however, present any verification of the accuracy of the transcription of the English parts of the recording of the hearing, nor any evidence as to the competence of the person who translated what was said in Malayalam. Two purported certificates of qualification for Mr Jose Joseph Vattappallil were attached to the affidavit, and I am prepared to assume that this gentlemen was being put forward as the author of the whole transcript. Those documents show qualifications only in hospitality management.
However, I read the applicant’s transcript carefully. In relation to two parts of the hearing which I regarded as significant, I replayed the recording. In particular, I replayed the recording concerning that part of the hearing described in paragraphs 34 to 37 of the Tribunal’s statement of reasons, where it was seeking to elicit from the applicant the response of the Maoist party to his father’s detention and their actions in relation to his family. I then detected that the English transcribing of the recording was significantly defective in the applicant’s transcript. The Tribunal’s questions were garbled at important points, rather than being accurately transcribed. Whether this was deliberate or through incompetence I do not know, but my examination of those pages of the transcript, being pages 8 through 13, causes me to find that the transcript is unreliable evidence of what happened at the hearing in English. I am not prepared to overlook the absence of proper verification of the English transcribing, nor of the purported translation of the Malayalam exchanges between the applicant and the interpreter. I therefore decline to give this document any evidentiary weight in drawing conclusions as to the manner of the Tribunal’s conduct of the hearing. I have received it as an exhibit purely for identification purposes.
The applicant urged upon me the considerations of his difficulties in finding funds to get proper evidence, and I appreciate his difficulties. However, at the end of the day the Court can only act on proper evidence as to the quality of translating at a hearing. In the absence of evidence properly presented by a qualified interpreter showing inadequacy of interpretation, the Court is left with no evidence, and the applicant is unable to prove his assertions of inadequacy.
I would, however, observe that almost all of the suggested deviations by the interpreter at the hearing from what are now suggested to be proper translating of Malayalam were of such a minor nature as to be insignificant. Where there might appear to be a substantial deviation, as in the passage where I verified the English transcript, the confusion in relation to the English part of the transcript suggests that the applicant’s transcript is probably also unreliable in relation to its purported translations of Malayalam.
In his oral submissions to me, the applicant drew attention to only one specific part of the hearing. This concerned a point about halfway through the hearing, where the Tribunal put to the applicant that he had given inconsistent evidence whether his father had been living with his family in their home when the applicant came to Australia, or was deceased. The applicant maintained that he had said that he was deceased, and the Tribunal interrupted the hearing to replay the tape and to question the interpreter as to the previous interpretation. It emerged that the interpreter had understood the applicant’s statement that his father was “not there” to be a euphemism for “passed away”, which is how he translated the statement.
This revealed, in my opinion, an honest and understandable error of the interpreter, not reflecting any serious incompetence. The Tribunal accepted the clarification of the applicant’s earlier evidence, and gave no weight to the matter in its further questioning of the applicant or in its decision. The Tribunal’s ‘Findings and Reasons’ did not treat the applicant’s evidence about his father’s location at the time of his coming to Australia as being material, although it did continue to detect inconsistency in his evidence about the location of his mother and sister. That finding was open to it, and had fairly been put to the applicant.
I do not accept the applicant’s submission that the incident shows that the Tribunal brought a closed mind to its conduct of the hearing, since I consider that it shows the contrary. Nor do I accept it as evidence that the whole of the hearing was seriously flawed by incompetent interpretation.
The applicant also eloquently explained to me a state of mind which he claims to have had at the hearing. He claimed to have been intimidated by the Tribunal’s conduct of the hearing and suggested that this had affected his responsiveness. I could not detect evidence of the applicant being intimidated, nor of inappropriate questioning of the applicant, when listening to the recording. The Tribunal spoke very firmly when seeking to explore the interpreter’s mistake, and it was, perhaps immoderately, critical of the interpreter. However, this language was clearly directed at the interpreter, and not to the applicant, and it should have reassured the applicant that the Tribunal was concerned to obtain an accurate translation of his evidence.
As with all Tribunal hearings, the questioning proceeded in a deliberate fashion which follows from the involvement of an interpreter. This allowed the applicant a more than fair opportunity to answer the Tribunal’s questions in an unhurried manner. Moreover, at times, I gained an impression that the applicant may have understood the English being used by the Tribunal, and I note that in his protection visa application he had claimed to be able to read, write and speak English. I certainly could detect no disadvantage suffered by the applicant in relation to his right to have the opportunities to give evidence required to be given to him under s.425 of the Migration Act.
Considering all of the evidence before me, and considering all the applicant’s submissions, I am not satisfied that the applicant was at any substantial weakness in the course of the hearing in relation to his capacity to participate and present his evidence to the Tribunal. I am not satisfied in the present case that there is evidence satisfying the tests of apprehended bias referred to in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, and applied in cases such as VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 and SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106 at [82]). I am certainly not satisfied under tests of actual bias (see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at [35] and [72]).
In relation to the quality of the interpreting services provided by the Tribunal, on the evidence before me which I can rely upon I am not satisfied that there was such inadequacy of interpreting in relation to a particular part of the hearing or overall, as to satisfy the tests which have been identified in relevant authorities (see Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723, Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [25], [32], M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212, and my discussion in SZJQN v Minister for Immigration & Anor [2007] FMCA 1550).
In my opinion, the evidence before the Tribunal allowed it to arrive at its conclusions about the defective nature of the applicant’s presentation as a witness of truth. In my opinion, it was open to the Tribunal on the evidence before it, not to be satisfied that the applicant was a person to whom Australia has protection obligations. I consider that the Tribunal has given rational reasons for disbelieving the applicant, and has genuinely performed its review jurisdiction.
I am therefore not satisfied that the Tribunal’s decision was affected by any jurisdictional error, and I must dismiss the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 2 October 2009
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