SZNLE v Minister for Immigration
[2009] FMCA 1247
•8 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1247 |
| MIGRATION – Refugee Review Tribunal – whether the Refugee Review Tribunal asked the applicant irrelevant questions – whether the interpretation at the Refugee Review Tribunal hearing was adequate – whether the Refugee Review Tribunal was obliged to accept a document written only in Malayalam – whether the Refugee Review Tribunal should have made further enquiries about the applicant’s claims. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65(1)(b); 424; 474; pt 8 div 2 |
| SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693 Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 |
| Applicant: | SZNLE |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 847 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 December 2009 |
| Date of Last Submission: | 8 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr Y. Shariff |
| Solicitors for the Respondent: | Ms L. Weston, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 847 of 2009
| SZNLE |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and part 8 division 2 of the Migration Act 1958 (Cth), for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 March 2009 and handed down on 11 March 2009.
The applicant claims to be a citizen of India of Malayalam ethnicity and of Christian faith. The applicant claims to fear persecution as a Christian fisherman in India, by members of the Communist Party of India (Marxist) (“CPIM”) and by Muslim land mafia.
The applicant arrived in Australia on 9 July 2008, having departed legally from Calcutta on a passport issued in his own name and a visitor visa, issued on 20 May 2008.
The applicant’s claims for protection visa
On 20 August 2008, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. The applicant provided a statement in support of his application. Those claims are accurately summarised in the written submissions of counsel for the first respondent as follows:
“1.2 In his protection visa application, the applicant claimed to fear persecution in India because of his religious beliefs in Christianity and his employment with a charitable organisation known as the Fishermen’s Charitable Society (the FCS): CB 30-35. He claimed that when the Communist Party of India – Marxist (the CPI(M)) came to power, it favoured the local Muslim Mafia in obtaining properties of local Christian fishermen by force or at undervalue: CB 31. The applicant further claimed that he was threatened and targeted by the local Muslim mafia because they knew him to be the person in charge of collecting money and arranging loans for local fishermen: CB 31-32. The applicant further alleged that in December 2006, three men attempted to drown him: CB 32-33. He alleged that in March 2008, he noticed that he was being followed and discovered that those who had been following him intended to murder him: CB 34. As a result, the applicant alleged that he fled to another State, Tamil Nadu, but discovered that the same practices existed there: CB 34. Finally, the applicant claimed that he was abducted by Muslims for a month, was raped and beaten and threatened with death if he confessed and did leave India: CB 34. The applicant claims that he gave his assailants some money and arranged for his travel to Australia through the “Fathers” to participate in the World Youth Day conference: CB 34-35.”
The delegate’s decision
On 17 September 2008, the applicant was invited to an interview with a delegate of the Department. The applicant attended the interview on 10 October 2008.
Ultimately, on 17 November 2008, the delegate refused the applicant’s application for a protection visa, on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
I accept as accurate the summary of the delegate’s reasons, as disclosed in the first respondent’s outline of submissions as follows:
“1.3 On 14 July 2008, a delegate of the first respondent refused to grant the applicant a protection visa: CB 79-90. In short, the delegate found that the facts relating to the applicant obtaining a passport in April 2008 and his subsequent delay in leaving India were inconsistent with his alleged fear of persecution: CB 88.5. The delegate also found, on the basis of independent country information, that attacks on Christians had primarily been undertaken by Hindu extremists and not by Muslims as asserted by the applicant: CB 88.6. The delegate further concluded that relocation within India was a viable option for the applicant: CB 89.”
The Tribunal hearing
On 4 December 2008, the applicant lodged an application for review of the delegate’s decision with the Tribunal. On 9 January 2009, the Tribunal wrote to the applicant, informing him that it had considered the material before it, but was unable to make a favourable decision on that information alone. The letter invited the applicant to come to a hearing to give oral evidence and present arguments, and invited the applicant to send any further information that he wished the Tribunal to consider. The applicant responded to that letter of invitation on 21 January 2009 and indicated that he would attend the hearing.
The Tribunal’s decision is accurately summarised by counsel for the first respondent in his written submissions as follows:
“The Tribunal’s findings
2.1 The Tribunal’s decision record sets out the applicant’s claims (CB 143[14]-146[25]) and the evidence that the applicant gave at the Tribunal hearing (CB 147[31]-152[56]).
2.2 The Tribunal accepted that the applicant was from Marianad in India: CB 154[61]. However, the Tribunal otherwise rejected the applicant's claims. In rejecting the applicant’s claims, the Tribunal:
(a) found that there were good reasons for concluding that the applicant was not telling the truth in relation to the events which prompted him to leave India and to seek protection in Australia: CB 153[60];
(b) did not accept that the applicant had told the truth regarding his employment history: CB 154[61];
(c) did not accept that from 1998 until 2008, the applicant was the field officer for the FCS: CB 154[62];
(d) referred to various inconsistencies in the applicant's evidence in order to reject the applicant's claims in relation to the activities of the Muslim mafia, his relocation to another State, his kidnapping and the circumstances which led him to leave India and travel to Australia for World Youth Day in July 2008: CB 154[63]-155[66];
(e) relied on problems with the applicant's credibility in not accepting that the applicant’s claims including that he had been targeted by Muslim businessmen or the Muslim mafia, that three men had attempted to kill him by drowning him, that he had been followed by suspicious men, that he had been kidnapped or tortured or told to leave India and forced to pay money from his release: CB 155[67]; and
(f) accepted that the applicant was a Christian, but did not accept that there was a real chance of the applicant be persecuted for reasons of his religion as a Christian if he returned to India: CB 155[68].
2.3 Having considered all the information before it, the Tribunal was not satisfied that there was a real chance that the Applicant would suffer persecution for any Convention related reason should he return to India: CB 155[69].”
Procedural history in this Court
The applicant attended a directions hearing before a Registrar of this Court on 27 April 2009. On that occasion, he was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon by 9 June 2009, together with any further evidence, including any transcript of the Tribunal hearing, by 9 June 2009. The applicant was also directed to file and serve written submissions in support of his application. At the directions hearing, the applicant elected to participate in the Court’s legal advice scheme and, on 22 July 2009, received written advice from a panel member.
The matter was set down for final hearing before me on 17 August 2009. Ultimately, the matter was heard over three dates for reasons that appear below.
Hearing on 17 August 2009
On 17 August 2009, by consent, the matter was adjourned for hearing on 2 November 2009 at 10.15am to allow the applicant an opportunity to file and serve an amended application and any further evidence relating to a possible breach of s.424 of the Act, as a result of the decision of Raphael FM in SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693. That issue has since been resolved in favour of the first respondent in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 and Minister for Immigration and Citizenship v SZKTI [2009] HCA 30. As stated above, no amended application was filed by the applicant addressing that issue.
Hearing on 2 November 2009
On 2 November 2009, at the recommencement of the hearing, the applicant sought to read and rely upon an affidavit, “sworn/affirmed” by him on 5 June 2009 and filed on 9 June 2009.
That affidavit attached a statement by the applicant containing further complaints, and three bundles of documents:
i)A document in Malayalam purporting to be a letter from Father Ashwyn, dated 5 January 2009, together with an English translation of that letter.
ii)A letter, dated 15 January 2009, on Marianad Fishermen Charitable Society letterhead, in Malayalam, together with an English translation.
iii)Four attachments in the nature of country information marked, “A”, “B”, “C” and “D”.
In the body of the affidavit, the applicant made an allegation that the Tribunal Member did not allow him to show the letters at (i) and (ii) above to the Tribunal, and “deliberately refused his demands”. The applicant also gave sworn evidence before me to that effect. However, in order to provide the first respondent with an opportunity to meet that evidence, the hearing was again adjourned, by consent, to today, 8 December 2009 at 10.15am. The tender of the documents were deferred until today.
On 2 November 2009, the first respondent was directed to file and serve any evidence by way of affidavit and any further submissions by 20 November 2009. The applicant was directed to file and serve any evidence in reply by 30 November 2009. On 20 November 2009, the first respondent filed the affidavit of Gregory Joseph Johnson, sworn 20 November 2009, annexing a transcript of the Tribunal hearing of 9 February 2009.
Hearing on 8 December 2009
At the recommencement of the hearing today, the applicant again gave evidence in support of his tender of the documents referred to in (i), (ii) and (iii) above. The first respondent maintained its objection made on the last occasion to the tender of those documents.
The applicant agreed that, in respect of the letter from Father Ashwyn (see document (i) above), he offered the Tribunal a copy of the letter in Malayalam only and did not provide an English translation. Accordingly, the English translation annexed to the applicant’s affidavit was rejected, as was the Malayalam copy.
In relation to the English translation of a letter on Marianad Fisherman Charitable Society letterhead and dated 15 January 2009, (see document (ii) above) the applicant’s evidence before this Court was that he had not, in fact, given that document, or its Malayalam translation, to the Tribunal Member, because the Tribunal Member had not accepted the letter in Malayalam from Father Ashwyn. In the circumstances, the English translation of that letter on Marianad Fishermen Charitable Society letterhead was rejected, as was the Malayalam copy.
The applicant further confirmed to the Court that the country information which formed attachments “A”, “B”, “C” and “D” (see document (iii) above), was not information that he had given to the Tribunal in support of his review application. In the circumstances, that material was also rejected.
On 20 June 2009, the applicant filed a further affidavit which attached CDs of the Tribunal hearing. The applicant sought to tender those CDs this morning in support of his application. The tender was opposed by the first respondent. As referred to above, the first respondent tendered a verified transcript of the hearing.
Ultimately, the applicant’s application to tender the CDs of the hearing was rejected, on the basis that a transcript was before the Court and the complaints made by the applicant about the hearing were all matters that were reasonably confined to what was said by the applicant and the Tribunal Member, rather than the manner in which it may have been said. There was no other issue or complaint identified by the applicant which would have made the CD relevant, in addition to the transcript.
Applicant’s grounds of complaint
At the hearing on 2 November 2009, the applicant had confirmed that he had not filed any amended application and relied on the grounds of his initiating application. Those grounds were in the following terms:
“1. Jurisdictional error
2. Breach of procedural fairness;
3. Breach of natural justice”
The grounds are plainly bare assertions that do not disclose any error capable of review by this Court.
Following his evidence and cross examination to this Court, the Court sought to identify with the applicant what were the complaints that he had about the Tribunal’s review and decision. The applicant’s complaints evolved as I endeavoured to explore them with him. I understand his complaints to be as follows:
i)That the Tribunal asked the applicant irrelevant questions about the other Cooperative Fishermen’s Society in Marianad, and asked him when his society was established.
ii)That the interpreter summed up and did not convey his evidence properly.
iii)That the hearing was not conducted in a fair or satisfactory manner.
iv)That the Tribunal should have investigated hid claims
Those complaints are addressed below.
(i) Tribunal asked irrelevant questions
The applicant complained that the Tribunal asked him irrelevant questions about his society. He said that it was irrelevant for the Tribunal to ask him questions about the other Cooperative Fishermen’s Society in Marianad and when his society was established. However, he was unable to identify any particular part in the transcript that supported that assertion.
It is apparent from the transcript that the Tribunal was endeavouring to put to the applicant country information before it that appeared to be inconsistent with his claims. The applicant claimed to be a member of the Fishermen Charitable Society in Marianad.
However, the Tribunal had before it country information that revealed that Marianad was renowned as a purpose fishing village established by the Latin Catholic Church in 1971. The Marianad Cooperative Society was established at the same time, solely for fishermen, by the Latin Catholic Church and was responsible for marketing and providing credit to members. The applicant disagreed and said that his society was a different one and was a charitable interest society. The Tribunal put to the applicant that his society seemed to be engaged in exactly the same activities as the Marianad Cooperative Society.
It was in the process of exploring the information above with the applicant that the Tribunal asked the applicant if he knew when Marianad was established. The applicant responded that the society was founded in 1997. The Tribunal clarified its question by making clear to the applicant that it was talking about the establishment of the village itself. The Tribunal said that Marianad was established by the Latin Catholic Church, to which the applicant claimed to belong. The applicant again confirmed that the Cooperative, established by fishermen in Marianad with the assistance of the Catholic Church, was established in 1997. As stated above, country information before the Tribunal revealed that the Cooperative was established in 1971. The applicant then responded that there were other societies, including government societies, although the applicant stated that his society was not a government society.
In the circumstances, it was certainly appropriate for the Tribunal to explore with the applicant country information that was inconsistent with his claims, including its questions about the applicant’s knowledge of Marianad and its Cooperative. This was plainly relevant where the applicant claimed to be a member of a different society engaged in the same work as the Cooperative and with a similar name when the Tribunal had country information about Marianad before it that was inconsistent with the applicant’s claims.
I accept the submission of Mr Shariff that the transcript discloses that the Tribunal was engaging in a proper forensic exercise of testing the applicant’s evidence, insofar as it was inconsistent with country information before the Tribunal about fishermen’s cooperatives in Marianad.
In the circumstances, the applicant’s complaint that the Tribunal asked irrelevant questions is not made out.
However, in any event, by itself, such a complaint does not establish jurisdictional error on the part of the Tribunal.
(ii) Quality of interpretation
The applicant complained about the quality of the interpretation at the hearing. He alleged that the interpreter was summing up and not conveying his evidence properly. However, other than that bare assertion, that complaint was not supported by particulars, evidence or submissions. Plainly, to establish such a complaint, the applicant would need evidence, at least, of those parts of the interpretation that he says did not properly convey his evidence.
In order to amount to jurisdictional error, the deficiency of interpretation must be of such poor quality that an Applicant is effectively deprived of his right to appear (Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 at [38] per Kenny J).
A fair reading of the transcript does not suggest that the applicant had any difficulty in understanding the questions from the Tribunal Member, as he appeared to answer most of them in a responsive fashion. Certainly, there was no complaint made by the applicant to the Tribunal Member of any failure by the applicant to understand any of the questions put to him. Neither do the exchanges with the Tribunal Member suggest that the Tribunal Member had difficulty understanding the thrust of the applicant’s evidence.
Although the applicant did not formally seek leave to provide further evidence in support of his allegations about his complaints about the interpreter, giving the applicant the benefit of the doubt, I accepted that he was intending to make an application for leave to give further evidence. However, having regard to the opportunities the applicant has had in the past to give evidence and the unparticularised nature of the complaint, that application was refused.
In the circumstances, the applicant’s complaint about the interpreter and the quality of interpretation is not made out.
(iii) Hearing not conducted fairly
The applicant also made a general assertion that the hearing was not conducted in a fair or satisfactory manner. When I asked the applicant what he meant by that assertion, he said that the Tribunal failed to accept his letters in support of his application. I understand the “letters” to which the applicant is intending to refer in that complaint to be the letter purportedly from Father Ashwyn in Malayalam, dated 5 January 2009, and the letter on Marianad Fishermen Charitable Society letterhead, dated 15 January 2009, and the English translation. Those documents were tendered by the applicant to this Court and rejected for the reasons referred to in paragraphs 18 and 19 above.
In relation to the letter on Marianad Fishermen Charitable Society letterhead and the English translation, the applicant’s evidence to the Court today was that he did not proffer those letters to the Tribunal. The failure of the Tribunal Member to have regard to that material in those circumstances cannot support the applicant’s contention that the Tribunal hearing was unfair and unsatisfactory.
In relation to the letter purportedly from Father Ashwyn, dated 5 January 2009, I note that the transcript discloses that the applicant said to the Tribunal Member that he had “some letters from his father, but it is in Malayalam”. I understand that reference to be to the letter from Father Ashwyn. The applicant also confirmed in evidence to this Court that he did not give the Tribunal an English translation of that letter, and was only able to offer a copy of the letter in Malayalam. The transcript makes clear that, when it became apparent to the Tribunal Member that the letter was in Malayalam, the Tribunal Member asked the applicant to tell him in broad terms what the letter said. The applicant then told the Tribunal what he alleged was the substance of the letter purportedly from Father Ashwyn. That evidence was to the effect that Father Ashwyn had witnessed people searching for him at home and asking his children “Where is your father?”
In the circumstances, the Tribunal gave the applicant an opportunity to tell the Tribunal what was the substance of the Malayalam letter allegedly from Father Ashwyn. The Tribunal referred to the letter in its decision record stating that the applicant claimed that Muslims continued to search for him at his home and that Father Ashwyn’s letter was to that effect. A fair reading of the Tribunal’s decision record suggests that the Tribunal placed no weight on the fact that the applicant told the Tribunal that Father Ashwyn’s letter supported that claim. Certainly, at no stage, was the Tribunal given an English translation of the letter purportedly from Father Ashwyn. It was for the Tribunal to evaluate the evidence before it and place such weight on it as it saw fit.
Ultimately, other than his claim to be a Christian, the Tribunal comprehensively rejected the applicant’s claims and found the applicant not to be a witness of truth. The Tribunal rejected the applicant’s claims of having been targeted by Muslim businessmen, or that the Muslim mafia sought to persecute him because he opposed their attempts to buy properties in Kerala or elsewhere. The Tribunal did not accept that the applicant was ever threatened by Muslims for any reason, or ever had any problems with police, as he had claimed.
As stated above, a fair reading of the transcript of the Tribunal’s decision makes clear that the Tribunal Member put to the applicant matters of concern that it had about his evidence, and gave the applicant every opportunity to respond.
In the circumstances, the Tribunal’s findings were open to it on the evidence of material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal. (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Having regard to the comprehensive adverse credibility findings made by the Tribunal in respect of his claims of past persecution, it was open on the Tribunal to give no weight to what the applicant had told him was in the letter purportedly from Father Ashwyn and written only in Malayalam, without any English translation to support it.
Accordingly, there can be no error on the part of the Tribunal going to its jurisdiction in failing to accept the copy of the letter in Malayalam proffered to it by the applicant at the hearing.
(iv) Tribunal should have investigated applicant’s claims
In relation to the applicant’s fourth unparticularised complaint that his case should have been properly investigated and analysed, the applicant stated that, at the Tribunal hearing, the Tribunal Member was not ready to hear about “incidents in his story.”
A fair reading of the transcript does not support such a complaint. It is for the applicant to satisfy the Tribunal that he meets the criteria for being a refugee. If the Tribunal is not so satisfied, then pursuant to s.65(1)(b) of the Act, the Tribunal must refuse the applicant a protection visa.
The Tribunal explored the applicant’s evidence carefully and in some detail, and was at pains to ensure that the applicant understood his questions, particularly concerns that the Tribunal Member had about the applicant’s evidence. A fair reading of the Tribunal’s decision record makes clear that it had regard to the applicant’s responses to those concerns, however, was not persuaded by them.
The Tribunal Member regularly asked the applicant open-ended questions about his claims, such as: “What sort of problems have you had?”; “What did you do after you finished studying?”; “What did you do for a living?”; “Can you tell me a bit more about it?”; “What problems do you say this caused you then?”, and, “Has anything happened between 2003 and 2006?” Towards the end of the hearing, the Tribunal Member said to the applicant: “Do you want to comment or respond to information I have given you?”; “Do you want to say anything?”; “Do you need more time?”; and, “Is there anything further you wanted to say to me before we closed the hearing?”
Moreover, the Tribunal is under no obligation to investigate the applicant’s claims or make inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The Tribunal discharged its duty in accordance with the law.
Otherwise, the applicant’s complaints are no more than a disagreement with the findings and conclusions made by the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).
Accordingly, none of the applicant’s grounds or complaints to this Court is made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing. The Tribunal put to the applicant matters of concern it had about his evidence and noted his responses. The Tribunal also put country information to the applicant and invited the applicant to comment upon it, particularly in relation to the existence in Marianad of fishermen societies. The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal and for the reasons it gave.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly pursuant to s.474 of the Act, this court has no jurisdiction to interfere.
The proceedings before this court should be dismissed with costs.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 17 December 2009
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