SZNNK v Minister for Immigration

[2009] FMCA 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNK v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 972

MIGRATION – Application for review of RRT decision – applicant citizen of India – where applicant claimed to be member of Radical Youth League – where Tribunal did not find applicant to be credible witness – where applicant alleges standard of interpretation deficient but provides no evidence by way of transcript – where grounds of review not particularised.

Migration Act 1958, ss.422B, 425

SZGYM v Minister for Immigration [2007] FCA 1923
SZJZE v Minister for Immigration [2007] FCA 1653
WACO v Minister for Immigration [2003] FCAFC 171
SZJSP v Minister for Immigration [2007] FCA 1925

Applicant: SZNNK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 985 of 2009

Judgment of: Raphael FM

Hearing date: 17 September 2009

Date of Last Submission: 17 September 2009

Delivered at: Sydney

Delivered on: 17 September 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 985 of 2009

SZNNK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He arrived in Australia on 6 July 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 18 August 2008.  On 4 December 2008 a delegate of the Minister refused to grant a protection visa and on 23 December 2008 the applicant applied for review of that decision by the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal, which, on 27 March 2009, determined to affirm the decision under review.  It handed that decision down on 30 March 2009. 

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of his claim of association with the Radical Youth League (“RYL”), which was affiliated to the Communist Party of India (Maoist Group) and his being a devout Roman Catholic. The applicant claimed that he had joined the RYL after completing his secondary schooling in 2001. He said that in 2002 members of the BJP group attacked and ransacked his house. When he went to complain he was remanded under arrest for

   
   

   3 months without bail. He said that between 2003 and 2005, whilst working as a manager for a tour company, he organised underground meetings for the CPI(M), but on one occasion the police obtained evidence through an informer and he was arrested and tortured. He was sent to prison for 6 months. He says the case is still pending against him in the courts. In 2006 the applicant went to Dubai and worked but had to leave that country because he organised a strike of employees.  He returned to India, where he worked in Cochin until he was recognised by a police officer and arrested.  He claimed that he escaped from police custody.  He managed to join a group of Christians who were coming to Australia for World Youth Day.

3. The Tribunal questioned the applicant about his association with the CPI(M) which the applicant stated was a Naxalite group.  The Tribunal had some difficulty in accepting that an association with a group which was committed to the violent overthrow of elected governments and the use of force to achieve this objective was consistent with his Christian beliefs.  The Tribunal did not find the applicant to be a truthful or credible witness.  It formed the view that he was unprepared to be tested on specific details of his claim.  It considered that he had very little knowledge of the history, structure or aims of the RYL or the CPI(M).  It did not accept that he was detained and mistreated in 2002:

   “He was not able to give a detailed account of this incident and was not able to describe what had happened to him during his period of detention.  When questioned about these charges he was very evasive and claimed he could not remember the details because it was a long time ago.  Further, he was not able to explain in any clear and coherent fashion whether he had been charged, the nature and outcome of any charges against him and why these charges would still be pending against him given that he had been living and working in Kerala for a long period of time after 2002.”  [CB 93]

4. The Tribunal did not accept that the applicant had organised underground meetings of the CPI(M) whilst he was working in the travel agency, nor that he had been arrested by the police in Cochin and detained for six months as a result of his activities.  The Tribunal noted that the applicant claimed to have been in continual employment during a period which included the alleged six months of detention.  The Tribunal noted that the applicant had departed India on two occasions and returned on one, and that if he was a person of interest to the police, as he said he was, it did not believe that that could have occurred.  The Tribunal did not accept that if he returned to India he would be arrested and mistreated.  The Tribunal also considered whether the applicant would suffer any persecution for being a member of the Latin Catholic faith, but concluded that:

   “The Independent information indicates that there are a large number of Catholics in Kerala and generally the state has enjoyed peaceful and tolerant relationships between the different religious groups.  There is no information suggesting any state-based persecution or discrimination based on religion.”  [CB 101]

5. On 27 April 2009 the applicant filed an application in this court seeking review of the decision of the tribunal.  He provided three grounds of application:

   “(1)    jurisdictional error;

   (2)      breach of procedural fairness; and

   (3)      breach of natural justice.”

He also asked for:

“An order or declaration that the notification by the delegate and tribunal to refuse the grant of a protection visa is invalid and has no effect to section 44C of the Judiciary Act.”

1. Dealing with these grounds of application, the applicant has not particularised the jurisdictional error alleged, and it is not appropriate for the court to make an assumption about what he intended.  At the hearing before me today the applicant told me that everything he told the Tribunal was true and the lack of information which he could give to the Tribunal arose because he was part of an unofficial organisation.  This and his other representations appeared to me to be a request for impermissible merits review of a Tribunal decision and did not point to a jurisdictional error.

2. I am equally unable to find any ground of breach of procedural fairness because no particulars were provided.  What the applicant did tell me was that he thought that the interpreter had mistaken his use of the word “father” for his own father rather than the priest and he claimed that it was not his own father who told him to leave for Australia but the priest.  I accept the respondent’s submission that nothing turned upon who advised the applicant to come to Australia and his claims were not contingent upon that.  The applicant was not prevented from presenting his case because of that particular failure of interpretation, and no other failures were particularised.  In any event the applicant has not provided the court with a transcript or any other way of assessing whether or not the complaints about interpretation were valid.

3. The complaints about interpretation may also be particulars of the breach of natural justice claim by the applicant. Whilst I accept that there are circumstances in which a failure to interpret would mean that the applicant was not provided with a proper hearing pursuant to s.425 of the Migration Act 1958 (the “Act”) this is not one of those cases because the applicant has not provided appropriate evidence. And insofar as natural justice is concerned the applicant is subject to the provisions of s.422B of the Act and has not provided the court with any particulars of a breach of the Division. Insofar as the interpretation complaints are concerned I would note that SZGYM v Minister for Immigration [2007] FCA 1923 is authority for the argument that inadequate interpretation can amount to breach of s.425 but that SZJZE v Minister for Immigration [2007] FCA 1653 per Middleton J at [21] makes it clear that the applicant has to establish by probative evidence that:

   “(a)The standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing;  or

   (b)Errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants.”

   Finally, the full bench in WACO v Minister for Immigration [2003] FCAFC 171 indicated that a perfect translation was not necessary.

4. Whilst the respondent’s solicitor, in her helpful written submissions, has provided me with authority that clearly establishes that the failure to properly address the notifications to the applicant do not constitute a jurisdictional error: SZJSP v Minister for Immigration [2007] FCA 1925, this is no longer an issue because the applicant himself has said that he has no further complaint about the address. The failure to include the name of the suburb did not prevent the applicant from receiving the documents or attending the hearing. In all the circumstances I have been unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $3,800.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  1 October 2009